Cobbett's complete collection of state trials and proceedings for high treason and other crimes and misdemeanors from the earliest period [1163] to the present time [1820]

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h i-oiu the Jarbof !

ISIASD-SHNFC

COBBETT'S

COMPLETE COLLECTION

OF

State Trials.

VOL. II.

rtMMi^M*

V

* *WL*i

COBBETT'S

*.. '• •

c d mp ii£ t is co 1 1 e c tto n

OF

State Trials

AND

PROCEEDINGS FOR HIGH TREASON AND OTHER

CRIMES AND MISDEMEANORS

FROM THE

EARLIEST PERIOD TO THE PRESENT TIME.

VOL. II.

COMPRISING THE PERIOD

FROM THE FIRST YEAR OF THE REIGN OF KING JAMES

THE FIRST, A.D. 1603, TO THE THIRD YEAR OF THE

REIGN OF KING CHARLES THE FIRST, A.D. l627«

LONDON:

PRINTED BY T. C. HANSARD, PETERBOROUGH-COURT, FLEET-STREET.

PUBLISHED BY R. BAOSHAW, BRY DORS STREET, COVBNT-GARDBN ; AND SOLD
BY J. BUDD, PALL-MALL; J. FAULDER, NBW-BOND-STREET ; S1JFBWOOD,
JfBBLBY AND JONES, PATERNOSTER-ROW ; BLACK, PARBY AND KINGSBURY,
LB AD BNH ALL-STREET; BELL AND BRADFUTR, EDINBURGH; AND J. ARCHER,
DUBLIN.

1S09.

50-3. '

• • • •

• • •

• • » •

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• • • •

• ••• v

• •• • # • •

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• • w » • •

• • 1 • •
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• • • •
• • «••••<

* •

TABLE 'OF CONTENTS

TO

VOLUME II.

ft

STATE TRIALS IN THE REIGN OF
KING JAMES THE FIRST.

%* The new Matter is marked [N.}

^>

Pag*
#4. The Trial of Sir Walter Raleigh, knt at Winchester, for High Treason,

1003 -.-!

75. The Trial of Sir Grtffik Markham, knt. Sir Edward Parham, knt. George

Brooke, esq. Bartholomew Brookesby, esq. Anthony Copley, Wil-
liam Watson, Priest, and William Clarke, Priest, for High Treason,
at Winchester, 1603 62

76. Proceedings in a Conference at Hampton Court, respecting Reforma-

tion of the Church, 1004 [N.J 70

77. The Case between Sir Francis Goodwin and Sir John Fortescue, relative

to a Return for the County of Buckingham, 1004 - - - 01

75. The Cass of Mixed Money in Ireland, 1605 114

79. Articuli Cleri : Articles (so intitled by Lord Coke) of Complaint against
the Judges of the Realm ; exhibited by Richard Bancroft, Arch-
bishop of Canterbury, in the Name of the whole Clergy, 1605.
Together with the Answers thereunto by all the Judges and Barons
[N.] - - - . - 131

60. Tbm Trials of Robert Winter, Thomas Winter, Guy Fawkes, John
Grant, Ambrose Rookwood, Rob est Keyes, Thomas Bates, and Sir
Bveraio Dioby, at Westminster, for High Treason, being Conspira-
tor! in the Gunpowder-Plot, 1606 U9

The History of the Gunpowder-Plot, written by King James him-
self, extracted from the first Collection of his Works published

his life-time by Mountague, Bishop of Winchester [N]. 105

▼i TABLE OF CONTENTS.

Page

61. The Trial of Henry Garnet, Superior of the Jesuits in England, at the
Guildhall of London, for High Treason, being a Conspirator in the
Gunpowder Plot, 1606 218

68. A true Report of the Arraignment, Tryall, Conviction, and Condemnation,
of a Popish Priest, named Robert Drewrie, at the Sessions-house in
the Old Bay lie, on Friday and Wednesday, the 20th and 24th of Fe-
bruary, 1687 [N.] 358

63. The Case of Impositions, on an Information in the Exchequer by the At-
torney-General against Mr. John Bates, Merchant, 1606 — 1610 - 371

84. The Conviction and Attainder of Robert Lalor, Priest, being indicted on

the Statute of the 16th Richard II. cap. 5 : Commonly called, The
Case of Praemunire in Ireland ------- 534

85. The Case of the Postnati, or of the Union of the Realm of Scotland .with

England, 1608 550

86. The Trial of George Sprot, in Scotland, for High Treason, in conspiring

with John Earl of Gowrie, to murder King James I. 1 60ff - - 698

87. The Process and Trial of Robert Logan, of Restalrig, for High Treason,

in conspiring with John Earl of Gowrie, to murder King James 1. 1609 707

8S. The Trial of Lord Balmerinoth, at St. Andrew's, for High Treason, 1609 722

89. The Case of Proclamations, 1610 [N.] 723

90. The Cases of Bartholomew Legat and Edward Wightman, for Heresy,

1612 [N.] 727

91. The Earl of Shrewsbury's Case ; or the Case of Dignities, 1612 [N.] - 742

92. The Arraignment and Confession of the Lord Sanquire, (who, being a Baron

of Scotland, was arraigned by the Name of Robert Creighton, esq.)
at the King's-bench Bar, in Westminster-hall, the 27th of June, for
procuring the Murder of John Turner, a Master of defence, whom
he caused to be shot with a Pistol by one Carliel, a Scottish-man, for
thrusting out one of his Eyes in playing at Rapier and Dagger, 1612 743

98. Proceedings against Mr. James Whitelocke, in the Star-Chamber, for

a Contempt of the King's Prerogative, 1613 .... - 766

94. Proceedings against Mary Countess of Shrewsbury, before a Select Coun-

cil, for a Contempt in refusing to answer fully before the Privy Coun-
cil, or to subscribe her Examination, 1612 "- - - - - 770

95. Case of Mr. William Talbot, on an Information ort terms, for maintain-

ing a Power in the Pope to depose and kill Kings, 1613 - 77$

96. Proceedings between the Lady Frances Howard, Countess of Essex, and

Robert Earl of Essex, her Husband, before the King's Delegates, in a
Cau^c of Divorce, 1613 786

97. The Earl of Northampton's Case, 1613 [N.] 862

99. Proceedings against Dr. Richard Keile, Bishop of Lincoln, for Words

spoken in Ue House of Lords, 16 U[N.] 8G6

TABLE OF CONTENTS. vit

Page
99. The Case of Edmund Peacbam, for Treason, 1615 £N.] . 870

100. The Case of John Owen, otherwise Collins, for Treason, 1015 [N.] • 879

•1. Proceedings against John Ogilyiz, for High Treason, at Glascow, in

Scotland, 1615 884

The Arraignment of John Ogihrie, on Tuesday the 28th of February,
in the Town-house of Glascow, before James Hamilton, James
Bell, Colin Campbell, and James Bradwood, Bailifls of the City,
Justices appointed by special Commission for that Business, by
the Lords of the Priry-Council ------ 887

103. The Case of Mr. Oliver St. John, on an Information ore terms, in the
Star-Chamber, for writing and publishing a Paper against a Benevo-
lence collected under Letters of the Privy-Council, 1015 - - - 899

103. The Trial of Richard Weston, at the Guildhall of London, for the Mur-

der of Sir Thomas Overbury, 1015 -' 911

104. The Trial of Anne Turner, Widow, at the King's-bench, for the Murder

of Sir Thomas Overbury, 1015 ------. 930

106. The Trial of Sir Jervis Elwes, knt. Lieutenant of the Tower ; at the

Guildhall of London, for the Murder of Sir Thomas Overbury, 1015 - 935

100. The Trial of Jambs Franklin, at the King's-bench, for the Murder of

Sir Thomas Overbury, 1015 ---.... 047

107. The Arraignment of Sir Thomas Monson, knt. at the Guildhall of Lon-

don, for the Murder of Sir Thomas Overbury, 1015 ... 950

106. The Trial of the Lady Frances Countess of Somerset, for the Murder of

Sir Thomas Overbury, 1010 - 951

109. The Trial of Robert Carr, Earl of Somerset, for the Murder of Sir

Thomas Overbury, 1610 966

110. The Proceedings against Sir John Hollis, Sir John Wbntworth, and Mr.

Lvmsden, in the Star-Chamber, for traducing the Public Justice, 1015 1022

111. The Case of Duels; or Proceedings in the Star-Chamber, against Mr.

William Priest, for writing and sending a Challenge, and Mr.
Richard Wright for carrying it, 1615 - 1034

113. The Case of Mart Smith, for Witchcraft, 1616 [N.] ... -1050

113. Proceedings against Mr. Wraynham, in the Star-Chamber, for slander-

ing the Lord-Chancellor Bacon of Injustice, 1018 - • - - . 1059

114. The Caseof Williams, of Essex, for Treason, 1019 [N.] - 1080

1 15. Proceedings in Parliament against Francis Bacon Lord Verulam, Viscount

St. Albans, Lord Chancellor of England, upon an Impeachment for
Bribery and Corruption in the Execution of his Office: And also
against Dr. Theophilus Field, Bishop of Llandaff, 1020 - 1037

1Mb Proceedings in Parliament against Sir Giles Mompesson, a Monopolist

end Patentee, 10SO [N.] - - - - - - - -1119

Tlii TABLE OF CONTENTS.

117. Proceedings in Parliament against Sir Francis Micheia, a Monopolist

and Patentee, and Co-partner with Sir Giles Mompesson, 1621 [N.] 1131

118. Proceedings against Sir Henry Yelverton, the King's Attorney-General,

for Misdemeanors, 1621 [N.] - - 113i^

119. Proceedings in Parliament against Sir John Bennett, knt for Bribery

and Corruption, 1621 [N.] 1146

120. Proceedings in Parliament against Edward Flotde, for scandalizing the

Princess Palatine, 1621 [N.] 1154

121. Proceedings against George Abbot, Archbishop of Canterbury, for the

killing of Edward Hawkins, one of the Lord Zouch's Keepers, 1621
[N.] - - - - 1150

occedings on the Impeachment of the Lord
High drimes and Misdemeanors, 1624 [N/

122. Proceedings on the Impeachment of the Lord Treasurer Middlesex, for

.] 1183

123. Proceedings in Parliament against Samuel Harsnet, Bishop of Norwich,

for Extortion and other Misdemeanors, 1624 [N.] .... 1254

KING CHARLES THE FIRST.

124. Proceedings in Parliament against Richard Mountagub, Clerk, for pub-

lishing a factious and seditious Book, 1625 [N.] - . . - 1258

125. Proceedings in Parliament against the Duke of Buckingham, the Earl of

Bristol, and the Lord Conway, for High Crimes and Misdemeanors,
1626 [N.] 1267

126. Case of George Abbot, Archbishop of Canterbury, for refusing to licence

a Sermon preached by Dr. Sibthorpe, in order to promote the Loan
and to justify the King's imposing Public Taxes without consent of
Parliament, 1627 [N.]- 1450

COBBETTS

COBBETT'S

COMPLETE COLLECTION

OF

State Trials.

74. The Trial of Sir Walter Raleigh, knt. at Winchester, for High
Treason: 1 James I. 17th of November, a. d. 1603.

1 HE Commissioners were, Henry Howard,
earl of Suffolk, Lord Chamberlain ; Charles
Blunt, earl of Devon; lord Henry Howard,
afterwards earl of Northampton ; Robert Cecil,
earl of Salisbury : Edward lord Wotton of
Morlev; sir John Stanhope, Vice Chamberlain,
L. C. Justice of England, Pophom ; L. C. Justice
of the Common-Pleas, Anderson ; Mr. Justice
Gawdie; Justice Warburton; and sir W. Wade.

First, the Commission of Oyer and Terminer
was read by the Clerk of the Crown Office;,
and the prisoner bid to hold up hi* hand.

And then presently the Indictment, which
was in effect as folio wet h :

" lliat he did conspire, and go about to
deprive the king of his Government ; to
raise up Sedition within the realm ; to alter
religion, to bring in die Roman Superstition
and to procure foreign enemies to invade
tlie kingdom. That the lord Cobham, the 9th
of June last, did meet with the said sir Walter
Raleigh in Durham- house, in the parish of St.
Martin's in the Fields, and then and there had
conference with him, liow to advance Arabella
Stuart* to the crown and royal throne of this

* This Arabella Stuart was daughter of
Charles Stuart earl of Lennox, brother of Henry
lord Darnley father of king James th;; 1st.
Thfse Charles and Henry were sons of Mar-
garet the daughter of Margaret eldest sister of
Henry 8th, and mother of Jiimcs the r»th of
Scotland, father of the celebrated Marv the
mother of James the 1st of England. Tl*' con-
temporary historian Wilson, after mentioning
the poisoning of Over bury, Writes thus: 4* The j
lady Arabella dying about tin* time in the
Tower, *et mens tongues and fears at work,
chat she went the same wav. Such mi-ehicf
doth one evil action introduce, thdt it unites a
great road for jealousy to punue after it. The

\Ql~ IL

kingdom ; and that then and there it was
agreed, that Cobham should treat with Arem-
berg, embassador from the archduke of Austria,
to obtain of him 600,000 crown*, to bring to
pass their intended treason. It was agreed
that Cobham should go to the archduke Albert,
to proeure him to advance the pretended titl«
of Arabella : from thence knowing that Albert
had not sufficient means to maintain his own
army in the Low Countries, Cobham should go

lady was daughter to Charles Stuart, (younger
brother to our king's father) by Elizabeth Ca-
vendish, and was married some years past to sir
William Seymour, son to the lord Beauchamp,
and grandchild to Edward earl of Hertford;
both at some distance allied to the crown,
therefore such a conjunction would not be ad-
mitted in the Royal Almanack ; so dreadful is
every apparition that comes near princes titles.
Sir William Seymour for the marriage was com-
mitted to the Tower, and the lady Arabella con-
fined to her house at High-gate. But after4some
imprisonment, they conclude to escape beyond
sea together ; appointing to meet at a certain
place upon the Thames. Sir William leaving his
man in his bed, to act his part with his keeper,
got out of the Tower in a disguise, and came to
the place appointed. She, dressed like a young
gallant in man's attire, followed him from her
houte ; but staying long above the limited time,
made him su>picious of her interception ; so
that he went away, leaving notice if she came,
that he was gone away before to Dunkirk.
She, good lady, fraught with more fears, and
larging in her flight, was apprehended, brought
hack to the Tower, and there finished her
earthly pilnrimn^c. She beini; dead, sir Wil-
liam Seymour got leave to return home, and
man led since to the ladv France?, daughter t#
the l.'.'e ea:l of E>sex."
u

']

STATE TRIALS, 1 James I. 1603 Trial & Sir Walter Raleigh,

I*

to Spain to procure the kin*: to assist and further
her pretended title. — It was agreed, the better
to effect all this Conspiracy, that Arabella should
write three Letters, one to the Archduke,
smother to the king of Spain, and a third to
the duke of Savoy ; and promise three things :
— 1. To establish a firm Peace between Eng-
land and Spain. 2. To tolerate the Popish and
Roman Superstition. 3. To be ruled by them
in contracting of her Marriage. — And for the
efFectiug of these traiterous purposes, Cobham
^iould return by the isle of Jersey, and should
find sir Walter Raleigh captain of the. said
Isle, there, and take counsel of Raleigh for the
distributing of the aforesaid, crowns, as (he
occasion or discontentment of the subjects
should give cause and way. — And further, That
Cobham and his brother Brook met on the
9th of June last, and Cobham told Brook all
these Treasons : to the which Treasons Brook
gave his assent, and did join himself to all these.
And after, on the Thursday following, Cobham
and Brook did speak these words ; 'That there
would never be a good world in England, till
the king' (u.eaning our sovereign lord) ' and
his cubs' (meaning Ins royal issue) ' were taken
away/ — And the more to disable and deprive
the kill); of his crown, and to confirm the said
Cob ham in his intents, Raleigh did publish a
Book, tiiWy written against the most just and
royal Title of the king, knowing the said Book
to he written Jigainst the just Title of the king;
which Book Cobham after that received of him.
Further, for the better effecting these traiterous
purposes, and to establish the said Brook in
his intent, the said Cobham did deliver the
said Book unto him the 14th of June. And
further, the said Cobham, on the Kith of June,

To the Indictment, Sir Walter Raleigh plead*
ed Not Guilty.

The Jury were sir Ralph Conisby, sir Thomas
Fowler, sir Edward Peacock, sir Wm. Rowe,
knights ; Henry Goodyer, Thomas Walker, Ro-
ger Wood, Thomas Whitby, esquires; Tho.
Highgate, Robert Kempton, John Chawkey,
Robert Bromley, gentlemen.

Sir Walter Raleigh, Prisoner, was asked.
Whether he would take exceptions to any of
the Jury ?

Raleigh. I know none of them ; they are
all Christians, and honest gentlemen, I except
against none.

£. of Suffolk. You gentlemen of the king's
learned Counsel, follow the same course as
you did the other day.

'Raleigh. My lord, I pray you I may an-
swer the points particularly as they are deli-
vered, by reason of the weakness of my me-
mory and sickness.

L. C. J. Popham. After the king's learned
council have delivered all the Evidence, sir
Walter, you niay answer particularly to what
you will.

He ale y the King's Serjeant. You have heard
of Raleigh's bloody attempts to kill the king
and his royal progeny, and in place thereof,
to advance one Arabella Stuart. The particu-
lars of the Indictment are these : Fir&t, that
Raleigh met with Cobham the 9th of June,
and had Conference of an Invasion, of a Re-
bellion, and an Insurrection, to be made by
the king's Mibjcns, to depose the king, and to
kill his children, poor babes that never gave
offence. Here i* blood, here is a new king
and governor. In our king consists all our
happiness, and the true use of the Gospel ; a

for accomplishment of the said Conference, thing which we all wish to be settled, after the
and by the traiterous instigation of Raleigh, did death of the queen. Here must be Money to
move Brook to incite Arabella to write to the do this, for monev is the sinew of war. Where

three fore named prince*, to procure them to
advance her Title; and that she after she had
obtained the crown, should promise to per-
form three things, viz. 1. Peace between Eug-

sliould that be had? count Aremberg must
procure it of Philip kiug of Spain, five or six
hundred thousand crowns'; and out of this
sum Raleigh must have 8000. But what is

laud and Spurn. 2. To tolerate with impunity thut count Arcmbci-g ? Though I am no good
the Popish and Roman Superstitions. tf. To Frenchman, yet it is as much as to say in Eng-

be ruled by them three in the contracting of
her marriage. — To these motions the said
Brook gave his assent. And for the better ef-
fecting of the snid Treasons, Cobham ou the
17 th of June, by the instigation of Raleigh,

did

deliver the said Letters to oue Matthew de
Luureucy, to be delivered to the said count,
which he did deliver, for the obtaining of the
600,000 crowns : which money by other Let-
ter* count Aremberg did pn»mi>e to perform
the pa) meat of; and tln&LiUer Cubhim re-
ceived the UUh of June. And then did Col >-
hsun prouiue to Raleigh, that wh;n he hid re-
ceived the said monev, l»; would dciiwr lUK)0
crowns to him, to which metion he did consent;
and afterwards Cobham otfered Brook, that after
he should receive the said crowns, he would give
to him 10,000 thereof; to which motion Brook
did assent.1*

lish, earl of Aremberg. Then there must be
Friends to effect this: Cobhain must go to Al-
bert archduke of Austria, for whom Aremberg
v.ai ambassador at that tunc in England. And
vhat then ? He must persuade the duke to as-

writ e Letters to count Aremberg, and did ^%t the pretended title of Arabella. From

— •'■ :1 r '■ ^ "' ' ' thence Cobhain imi.i -o to the king of Spam,

and persuade him to assist the said title. Since
the Conquest, th? re uus never the like Trea-
son. But out ol whose head carrie it? Out of
Kale-iib's, who ii.u«l also advise Cobham to
us>o hit brother Ihool; to incite the lady Ara-
bella 4<> write three sceral Letters, as afore-
said in the Indictment : all this was on the 9th
of June. Then three itnys after, Brook was
acquainted with it. After this, Cobham said
to Biouk, ' It will never be well in England,
till the king and his ' cubs1 are taken away/
Afterwards, Raleigh delivered a book to Cob*
bam, treacherously written against the Titfeof

STATE TRIALS, ] James I. 1603— for High Treason.

[«

the king. It appears that Cobham took Ra-
leigh to be either a God, or an idol. Cobham
endeavours to set up a new king, or governor ;
God forbid mine eyes should ever see so un-
happy a change. As for the lady Arabella, she,
upon my conscience, hath no more Title to the
crown than I have, which before God 1 utterly
renounce. Cobham, a man bred in England,
hath no experience abroad; but Raleigh, a
man of great wit, military, and a sword- man.
Now, whether these things were bred in a
hollow tree, I leave to theui to speak of, who
can speak tar better than myself. — And so sat
him down again.

Attorney General (Sir Ed. Ooke) I must
first, my lords, before I come to the cause, give
one caution, because vie shall often mention
persons of emineot places, some of them great ,
monarch* : whatever we say of them, we shall
but repeat what others have said of them ; I
mean the Capital Offenders in their Confes-
sions. We professing law, must speak reve-
rently of kings and potentates. I perceive
these honourable lords, and the rest of this
great assembly, are come' to hear what hath
been scattered upon the wrack of report. We
carry a just mind, to condemn no man, but
upon plain Evidence. Here is Mischief, Mis-
chief in summo gradu, exorbitant Mischief.
My Speech shall chiefly touch tliese three
points; Imitation, Supportation, and Defence.
—The Imitation of evil ever exceeds the Prece-
dent; as on the contrary, imitation of good
ever comes short. Mischief cannot be sup-
ported but by Mischief; yea it will so multiply,
that it will bring all to confusion. Mischief is
ever underpropped by falshood or foul practices :
and because all these things did concur in this
Treason, you shall understand the main, as
before you did the bye. — The Treason of the
bye cousisteth in these Points : first, that the
lord Grey, Brook, Markham, and the rest, in-
tended by force in the night to surprize the
king's court; which was a Rebellion in the
heart of the realm, yea, in the heart of the
heart, in the Court. They intended to take
him that is a sovereign, to make him subject to
their power, purposing to open the doors with
musquets and cavaliers, and to take also the
Prince and Council : then under the king's
authority to carry the king to the Tower;
and to make a stale of the admiral. When
they had the king there, to extort three
things from him: first, A Pardon for all their
Treasons: Secondly, A Toleration of the Ro-
man Superstition ; which their eyes shall sooner
fall out than th**y shall ever see; for the king
hath spoken these words in the hearing of
many, ' I will lose the crown and my life,
before ever I will alter Religion.' And thirdly,
To remove Counsellors. In the room of the
Lord Chancellor, they would have placed one
Watson spriest, absurd in Humanity and ij;-
aorant in Divinity. Brook, of whom 1 will
fpeak nothing, Lord Treasurer. The great
Secretary most be Markham ; Oeulus patriae.
A hole must be found in my Lord Chief Jus-

tice's coat. Grey must be Earl-Marshal, and
Master of the Horse, because he would have a
table in the court ; marry, he would advance
the earl of Worcester to a higher place. All
this cannot be done without a multitude :
therefore Watsou the priest tells a resolute man,
that the king was in danger of Puritans and
Jesuits ; so to bring him in blindfold into the
action, saying, That the king is no king till he
be crowned ; therefore every man might right
his own wrongs : but he is rex natus, his dig-
nity descends as well as yours, my lords. Then .
Watson imposeth a blasphemous Oath, that
they should, swear to defend the king's person ;
to keep secret what was given them in charge,
and seek all ways and means to ndvance the
Catholic Religion. Then they intend to send
for the Lord Mayor and the Aldermen, in the
king's name, to the Tower ; lest they should
make any resistance, and then to take hostages
of them ; and to enjoin them to provide for
them victuals and munition. Grey, because
the king removed before Midsummer, had a
further reach, to get a Company of Sword-men
to assist the action : therefore he would stay
till he had obtained a regiment from Ostend or
Austria. So you see these Treasons were like
Sampson's foxes, which were joined in fheir
tails, though their heads were severed.

Raleigh. You Gentlemen of the Jury, I
pray remember, I am not charged with the
feye, being the Treason of the priest.

Attorney. You are not. My lords, you
shall observe three tilings in the Treasons : 1 .
They had a Watch-word (the king's safety);
their Pretence w as Bonum in se ; their Intent
was Malum in se ; 2. They avouched Scrip-
ture; both the priests had Scrip turn est ; per-
verting and ignorant ly mistaking the Scriptures :
3. They avouched the Common Law, to prove
that he was no king until he was crowned ;
alledging a Statute of 13 Eliz. This, by way of
Imitation, hath been the course of all Traitors.
— In the 20th of Edw. '2. Isabella the Queen,
and die lord Mortimer, gave out, that the king's
Person was not safe, for the good of the Church
and Commonwealth. The Bishop of Carlisle
did preach on this Text, * My head is grieved/
meaning by the Head, the Kins; ; what when
the Head began to be negligent, the people
might reform what is amiss. In the 3rd of
Henry 4, sir Roger Clarendon, accompanied
with two priests, gave out, that Richard 2, was
alive, when he was dead. Edward 3 caused
Mortimer's head to be cut off, for giving
counsel to murder the king. The 3rd of
Henry 7. sir Henry Stanley found the crown in
the dust, and .set it on the king's head : when
Firzwater and Garret told him, that Edward 5
was alive, he said, * If he be alive, I will assist
him/ Rut this cost him his head. Edmund de
la Pole, duke of Sutfolk, killed a man in the
reign of king Henry 7, for which the king would
have him hold up his hand at the h:tr, and then
pardoned him: Yet he took such an offence
thereat, that he sent to the noblemen to help to
reform the Commonwealth ; and then said, he

']

STATE TRIALS, I James I. 1 80S.— Trial rf Sir Walter Raleigh,

[»

would go to France and get power there. Sir
Roger, Coinpton knew nil the Treason, and
discovered Win don and others that were at-
tainted. He said, there was another thing that
would be stood upon, namely, that they had
but one Witness. Then he vouched one
Apple yurd's Case, a Traitor in Norfolk, who
said, a man must have two accusers. Helms
was the man that accused him ; hut Mr. justice
Catlin said, that that Statute was not in force
at that day. His words were, ' Thrust her
into the ditch.* Then he went on speaking of
Accusers, and made this difference : an Ac-
cuser is a spenkcr by report, when a Witness
is he thnt upon his oath shall speak his know-
ledge of any man. — A third sort of Evidence
theic is likewise, and this is held more forcible
than cither of the other two; and that is, when
a man, by his accusation of another, shall,
by the same accusation, also condemn him-
self, and make himself liable to the same fault
and punishment : this is more 'forcible than
many Witnesses. So then so much by way of
Imitation. — Then he defined Treason : there
is Treason in the heart, in the hand, in the
mouth, in consummation: comparing that in
eordc to the root of a tree ; in ore, to the
bud ; in tttanu to the blossom ; and thnt
which is in consumwatione, to the fruit. —
K«w I come to your Charge, You of the Jury:
the greatness ot Treason is to be considered in
these two things, Dctcrmmationc jlnis, and
Elect tone waiiorum. This Treason excel let h
in both, for that it was to destroy the king and
his progeny. These Treasons are said to be
Crimen Imc mnjeutatis; this goeth further, and
may he termed, Crimen exlirpnndtc regia mu-
JL'stutii, 4" totius progenici sittt. I shall not need,

on discontented persons, to raise Rebellion on
the kingdom.

Raleigh. Let me answer for myself.

Attorney. Thou shalt not.

Raleigh. It concerneth my life.

L. C. J. Sir Walter Raleigh, Mr. Attorney
is hut yet in the General : but when the king's
Counsel have given the Evidence wholly you
shall answer every Particular.

Attorney. Oh ! do I touch you ?

Lord Cecil. Mr. Attorney, when you have
done with this Geurral Charge, do you not
mean to let him answer every Particular ?

Attorney. Yes, when we deliver the Proofs
to be read. Raleigh procured Cobham to go
to A rem berg, which he did by his instigation :
Raleigh supped with Cobham before he went to
A rem berg; after supper, Raleigh conducted him
to Durham-house; trom thence Cobham went
with Lawrency, a servant of ArembergV, unto
him, and went in by a back way. Cobham
could never be quiet until he had entertained
this motion, for he had four Letters from Ra-
leigh. Aremberg answered, The Money should
be performed, hut knew nut to whom it should
be distributed. Then Cohliam and Lawrcucy
came back to Durham-house, where they found
Raleigh. Cobham and Raleigh went up, and
left J^iwrenry below, where they had secret
conference in a gallery ; and atter, Colduin
and Lawrency departed from Raleigh. Your
jargon was Peace : What is that? Spanish In-
vasion, Scoiish Subversion. And again, you
are not a lit man to take s-o much Money for
procuring of a lawful Peace, for peace procured
by monev is dishonourable. Then Cobham
mu^t go to Spain, and return by Jersey, where
you were Captain : and then, because Cobham

my lords, to speak any thing concerning the had not so much policy, or at len&t wickedness,
King, nor of the bounty and sweetness of his as you, he must have your advice for the tus-
natiue, who^e thoughts are innocent, whose tribution of the Money. Would you have de-
words are full of wisdom and learning, and posed so pood a king, lineally descended of Eli-
whose works are full of honour: although it be zabcth, eldest daughter of Edward 4? Why
a true Saying, Nuttquam nimis quod antiquum then must you set yp another ? I think you

meant to make Arabella a Titular Queen, of
whose Title I will speak nothing ; but snr<» yuu

talis. But to whom do \ou bear Malice? to
the Children ?

Raleigh. To whom speak you this? You
tell me news I never heard of.

Attorney. Oh, sir, do I ? I will prove you
the notonest Traitor that ever came to the bar.

meant to make her a stale. Ah ! good bmy,
you could mean her no good.

Raleigh. You tell me news, Mr. Attorney.

Att. Oh, sir! I am the more large, because

After you have taken away the King, you would I I know with whom I deal : for we have to deal
alter Religion : as you sir Walter Raleigh, have ■ to-day with a man of wit.

followed them of the Dye in Imitation : for I
will charge you with the Words.

Raleigh. Your words cannot condemn me;
my innocency is my defence. Prove one of
these things wherewith you have charged me,
and I will confess the whole Indictment, and
that I am the horriblest Traitor that ever lived,
and worthy to be crucified with a thousand
thousand torments.

Attorney. Nay, I will prove all : thou art a self; I say nothing.

Rultigh. Did I ever speak with this lady ?

Att. J will track you out before I have
done. Englishmen will not be led hy persua-
sion of words, but they must have books to per-
suade.

Raleigh. The Book was written by a man
of your profession, Mr. Attorney.

Att. I would not have you impatient.

Ra/eifih. Methinks you fall out with your-

monster; thou host an English face, but a Spa-
nish heart. Now you must have Money : Arem-
berg was no sooner in England (I charge thee
Raleigh) but thou incitedst Cobluim to go unto
him, and to deal with him for Money, to bestow

Att. By this Book you would persuade men,
thnt he is not the law ml king. Now let us
consider some circumstances : My lords, you
know my lord Cobham (lor whom we all lament
aud rejoice ; lament in that .his house, which

9]

STATE TRIALS, 1 Jambs I. l603.-^r High Treaton.

[1»

hath stood so long unspotted, is now ruinated ;
rejoice, in that his Treasons are revealed i\ he
is neither politician nor sword man ; Raleigh
was bothy united in the Cause with him, and
therefore cause of his destruction. Another
circumstance is, the secret contriving of it.
Humphry Stafford claimed Sanctuary for Trea-
son. Raleigh, in his Machiavelian policy, hath
made a Sanctuary for Treason : lie must talk
with none but Cobham ; because, saith he, one
Witness can never condemn me. For Brook
said unto sir Griffith Markhum, ' Take heed
' how you do make my lord Cobham acquaint-
• ed ; for whatsoever he knoweth, Raleigh the
' witch will get it out of him/ As soon as Ra-
leigh was examined on one point of Treason
concerning my lord Cobham, he wrote to him
thus ; ' I nave been examined of you, and con-
4 fessed nothing.' Further, you sent to him by
your trusty Francis Kemish, that one Witness
could not condemn : and therefore bad his
lordship be of good courage. Came this out
of Cobham's quiver ? No : but out of Raleigh's
Machiavelian and devilish policy. Yea, but
Cobham did retract it ; why then did ye urge
it ? Now then see the most horrible practices
that ever came out of the bottomless pit of the
lowest hell. After that Raleigh had intelligence
that Cobham had accused him, he endeavoured
to have intelligence from Cobham, which he
bad gotten by young sir John Pay ton : but I
think it was the error of his youth.

Raleigh. The lords told it me, or else I had
not been sent to the Tower.

Alt. Thus Cobham, by the instigation of
R-ilemh, entered into these actions : So that
tbe question will be, Whether you are not the
imocipal Traitor, and he would nevertheless
wive entered into it ? Why did Cobham retract
all that same ? First, Because Raleigh was so
odious, he thought lie should fare the worse for
Lis sake. . Secondly, he thought thus with him-
*if, If he be free I shall clear myself the bet-
Ur. After this, Cobham asked for a Preacher
t" confer with, pretending to have Dr. An-
drew* ; but indeed he meant not to have him,
W Mr. Galloway ; a worthy and reverend
preacher, who can do more with the king (as
le laid) than any other ; that he, seeing his
constant denial, might inform the king thereof.
Here he plays with the preacher. If Raleigh
coold persuade the lords, that Cobham had no
*tent to travel, then he thought nil should be
■ell. Here is Forgery ! In the Tower Cobham
&um write to sir Thomas Vane, a worthy man,
ttat be meant not to go into Spain : which
Letter Raleigh devised in Cobham's name.

RtUigh. I will wash my hands of the In-
dictment, and die a true man to the king.

Att. You are the absolutest Traitor that
etertras.
Raleigh . Your phrases will not prove it.
Alt. Cobham writeth a Letter to my lord
( <-u!, and doth will Mellis's man to lay it in a
Spanish Bible, nnd to make as though he round
< ty chance. This was after he had intelli-
pace with this viper, that he was false.

Lord Cecil. You mean a Letter intended to-
me; I never had it.

Alt. No, my lord, you had it not. You,
my masters of the jury, respect not the wick-
edness and hatred of the man, respect his
cause : if he be guilty, I know you will have
care of it, for the preservation of the king, the
continuance of the Gospel authorized, and the
good of us all.

Raleigh. I do not hear yet, that you have
spoken one word against me ; here is no Trea-
son of mine done : If iny lord Cobham be a
Traitor, what is that to me ?

Att. All that he did was by thy instigation,
thou Viper ; for I thou * thee, thou Traitor.

Raleigh. It becometh not a man of quality
and virtue, to call me so : But I take comfort
in it, it is all you can do.

Alt. Have I angered you ?

Raleigh. I am in no case to be angry.

C. J. Pop ham. Sir Walter Raleigh, Mr.
Attorney speaketh out of the zeal of his duty,
for the service of tbe king, and you for your
life ; be valiant on both sides.

The Lord Cobham's Examination.

" lie confesseth, he had a Passport to go
into Spain, intending to go to the Archduke,
to confer with him about these Practices ; and
because he knew the Archduke had not Money
to pay his own army, from thence he meant to
go to" Spain, to deal with the king for the
600,000 crowns, and to return by Jersey ; and
that nothing should be done, until he had
spoken with sir Walter Raleigh for distribution
of the Money to them which were discontented
in Kngland. At the first beginning, he breath-
ed out oaths and exclamations against Raleigh,
calling him Villain and Traitor ; saying he had
never entered into these course?, but hv his
instigation, and that he would never let him
alone." — [Here Mr. Attorney willed the Clerk
of the Crown-Otiicc to read over these Inst
words again, ' He would never let him alone. 'J
'* Besides he spake of Plots and Invasions ; ot
the particulars whereof lie could gi\e no ac-
count, though Raleigh ,and he had conferred of
them. Further he said, he was afraid of fta-
leigh, that when he should return by Jersey,
that he would have delivered him and the Mo-
ney to the king. Being examined of sir Arthur
Gorge, he freed him, saying, They never duot
trust him : but sir Arthur Savage they intend-
ed to use, because they thought him a 'fit man".

Haleigh. Let me see the Accusation : This
is absolutely all the Evidence can be brought
against me; poor shifts ! You Gentlemen of
the Jury, T pray you understand this. This is
that which must cither condemn, or give me
life ; which must free me, or send my wife nnd
children to beg their bread about the streets :

* Shakespear, in all probability, alludes to
this, when he makes sir Toby in giving direc-
tions to sir Andrew for his challenge to Viola,
say, If thou thowft him some thrice, it may not
be amiss," See Twelfth Night.

1 1] STATE TRIALS, 1 James I. I0O&— Trial of Sir Walter Raleigh, [12

Christendom ; but now he coraeth creeping to
the king my master Sbr peace*. I knew, whereas
before he had in iiis port six or seven score
sail of ships, he hath now but six or seren. I
knew of 25,000,000 he had from hisJndies, he
bath scarce one left. I knew him to be so poor,
that the Jesuits in Spain, who were wont to
have such large allowance, were fain to beg at
the church-door. Was it ever* read or heard,
that any prince should disburse so much money
without a sufficient pawn ? I knew her own
subjects, the citizens of London, woold not lend
her majesty money, without lands in mortgage.
I knew the Queen did not lend the States,
money, without Flushing, Brill, and other
towns for a pawn. And can it be thought, that
he would let Cobham have so great a sum ?—
I never came to the lord Cobham's, but about
matters of his profit ; as the ordering of his
house, paying of his servants board-wages, ore.
I had of his, when I was examined, 4,000/.
worth of jewels for a purchase ; a pearl of
3,000/. and a ring worth 500/. If he had had
a fancy to run away, he would not have left so
much to have purchased a lease in fee-farm. I
saw him buy 300/. worth of Books to send to
his Library at Canterbury, and a cabinet of 30/.
to give to Mr. Attorney, for drawing the con-
veyances : and God in heaven knowetb, not 1,
whether he intended to travel or no. But for
that practice with A rubella, or letters to Arem-
berg framed, or any discourse with him, or in
what language he spake unto him; if I knew
any of these things, I would absolutely confess
the indictment, and acknowledge myself worthy
ten thousand deaths.

This is that must prove me a notorious Traitor,
or a true subject to the king. Let me see my
Accusation, that I may make my Answer.

Clewk of' the Council, I did read it, and
shew you all the Examinations.

Raleigh, At my first Examination at Wind-
sor, my lords asked me, what I kuew of Cob-
ham's practice with Aremberg, I answered ne-
gatively : And as concerning Arabella, I pro-
test before God, I never heard one word of it.
If that be proved, let me be guilty of ten thou-
sand Treasons. It is a strange thing you will
impute that to me, when I never heard so
much as the name of Arabella Stuart, but only
the name of Arabella.— After being examined,
I told my lords, that I thought my lord Cob-
ham had conference with Aremberg; I sus-
pected his visiting of him : for after he depart-
ed from me at Durham-liouse, I saw him pass
by his own stairs, and passed over to St. Mary
Saviours, where I knew Lawrency, a merchant,
and a follower of Aremberg, lay, and therefore
likely to go unto him. My lord Cecil asked
my opinion concerning Lawrency ; I said, that
if you do not apprehend Lawrency, it is dan-
gerous, he will 6y ; if you do apprehend him,
Jou shall give my lord Cobham notice thereof,
was asked who was the greatest man with
my lord Cobham ; I answered, I knew no man
so great with him as young Wyat of Kent. —
As soon as Cobham saw my Letter to have dis-
covered his dealing with Aremberg, in his fury
he accused me; but before he came to the
stair-foot, he repented, and said he had done
me wrong. When he came to the end of his
Accusation, he added, that if he had brought
this mon*»y to Jersey, he feared that I would
have delivered him and tlie money to the king.
Mr. Attorney, you said this never came out of
Cobham's quiver ; he is a simple man. Is he
so simple? No; he hath a disposition of his
own, he will not easily be guided by others ;
but when he has once taken head in a matter,
he is not easily drawn from it : he is no babe.
But it is strange for me to devise with Cobham,
that he should go to Spain, to persuade the
king to disburse so much money, he being a
man of no love in England, and I having re-
signed my room of chiefest command, the
Wardenship of the Stannaries. Is it not
strange for me to make myself Robin flood, or
a Rett, or a Cade ? I knowing England to be
in better estate to defend itself than ever it was.
I knew Scotland united ; Ireland quieted, where-
in of late our forces were dispersed ; Denmark us-
surcd, which before was suspected. I knew, that
having lost a lady whom time had surprized*
wc had now an active kins, a lawful Successor,
who would himself be present in all his affairs.
The State of Spain was not unknown to me :
1 had written a Discourse, which I had intend-
ed to present unto the king, agaiust peace with
Spain. I knew the .Spaniards had six repulses ;
three in Ireland, and three at sea, and once in
1588, at Cales, by my Lord Admiral. I knew
lie was discouraged and dishonoured. I knew
the king of Spain to bt the proudest prince in

Cobham s second Examination read.

The lord Cobham being required to subscribe
to an Examination, there was shewed a Note
under sir Walter Raleigh's hand ; the which
when he had perused, he paused, and after
brake forth into those Speeches : Oh Villain J
Oh traitor ! 1 will now tell you all the truth ;
and then said, His purpose was to go into
Flanders, and into Spain, for the obtaining the
aforesaid Money; and that Raleigh had ap-
pointed to meet him in Jersey as he returned
home, to be advised of him about the distribu-
tion of the Money.

L. C. J. Pophum. When Cobham answer-
ed to the Interrogatories, he made scruple to
subscribe; and being urged to it, he said, if he
might hear me affirm, that a person of his de-
gree ought to set his hand, he would: I lying
then at Richmond for fear of the Plague, was
sent for, and I told he ought to subscribe ;
otherwise it were a Contempt of a hi^h nature:
then he subscribed. The lords questioned with
him further, and he shewed them a Letter, as I
thought written to me, but it was indeed written
to my lord Cecil : he desired to t>ce the Letter
again, and then said, ' Oh wretch ! Oh traitor !'
whereby I perceived you had not performed
that trust he had reposed in you.

Raltigh. He is as passionate a man as
lives; for he hath not spared the best friends

»]

STATE TRIALS, 1 Jamb* I. 160$.— for High Treason.

[I*

he hath in England in his passion. My lords,
I take it, he that has been examined, has ever
been asked at the time of his Examination, if
it be according to his meaning, and then to sub-
scribe. Methinks, my lords, when he accuses
a man, he should give some account and rea-
son of it : It is not sufficient to say, we talked
of it. If I had been the Plotter, would not I
hare given Cobham some arguments, wliereby
to persuade the king of Spain, and answer his
objections ? I knew Westmoreland and Both-
well, men of other understandings than Cob-
ham, were ready to beg their bread.

&r Tho. Fowler, one of the Jury. Did sir
Walter Raleigh write a Letter to my lord be-
fore he was examined concerning him, or not?
Att. Yes.

Lord Cecil. I am in great dispute with my-
self to speak in the Case of this gentleman : A
former clearness between me and him, tyed so
firm a knot of my conceit of his virtues, now
broken by a discovery of his imperfections. I
protest, did I serve n king that I Knew would be
displeased with me for speaking, in this case I
would speak, whatever came of it ; but seeing
he is compacted of piety and justice, and one
that will not mislike of any man for speaking a
truth, I will answer your question. — Sir Walter
Raleigh was staid by me at Windsor, upon the
first news of Copley, that the king's Person
tboold be surprized by my lord Grey, and Mr.
George Brook ; when I found Brook was in, I
suspected Cobham, then I doubted Raleigh to
be a partaker. I speak not this, that it should
be thought I bad greater judgment than the rest
of my lords, in making this haste to have them
examined. Raleigh following to Windsor, I
esetwith him upon the Terrace, and willed him,
u from the kirn/, to stay; saying, the lords had
something to say to him: then he was ex-
sained, but not concerning my lord Cobham,
tat of the surprizing Treason. My lord Grey
•as appiehended, and likewise Brook ; by
Brook we found, that he had given notice to
Cobham of the surprizing Treason, as he deli-
vered it to us; but with as much sparin^hess
tf a brother, as he might. We sent for my
lord Cobham to Richmond, where he stood upon
o» jastification, and bis quality ; sometimes
being froward, he said he was not bound to
Mtacribe, wherewith we made the king uo»
ouainted. Cobham said, if my L. C. Justice
would say it were a Contempt, he would sub-
scribe; whereof being resolved, he subscribed.
There was a light given to Aremberg, that Luw-
rency was examined ; but that Raleigh kuew
that Cobham was examined, is more Urtn I
know.

lluUiph. If my lord Cobham had trusted
me in the Main, was not I as fit a man to be
trusted in thf live ?

J/trd Cecil. Raleigh did by his Letters ac-
quaint us that my lord Cobham hud sent Law-
rency to Aremberg, when he knew not he had
any dealings with him.

Lard Hen. Homard. It made for vou, if
Lawrency had be*n only acquainted witl) Cob-

ham, and not with you. But you knew his
whole estate, and were acquainted with Cob*
ham's practice with Lawrency: and it was
known to you before, that Lawrency depended
on Aremberg.

Attorney. 1. Raleigh protested against the
surprising Treason. 2. That he knew not of
the matter touching Arabella. I would not
charge you, sir Walter, with a matter of false-
hood : you say you suspected the Intelligence
that Cobham had with Aremberg by Lawrency.
liaUigh. I thought it had been no other
Intelligence, but such as might be warranted.

Attorney. Then it was but lawful suspicion.
But to that whereas you said, that Cobham had
accused you in passion, I answer three ways :
1. I observed when Cobham said, Let me see
the Letter again, lie paused ; and when he did
see that count Aremberg was touched, he
cried out, Oh Traitor ! On Villain ! now will
I confess the whole truth. 2. The accusation
of a man on hearsay, is notliing ; would he ac-
cuse liimself on passion, and ruinate his case
and posterity, out of malice to accuse you ?
3. Could this be out of passion? Mark the
manner of it; Cobbam had told this at least
two months before to his brother Brook, ' You
' are fools, you are on the bye, Raleigh and I
' are on the main ; we mean to take away the
' king and his cubs :' this he delivered two
months before. So mark the manner and the
matter ; he would not turn the weapon against
his own bosom, and accuse himself' to accuse
you,

Raleigh. Hath Cobham confessed that ?
L. C. J. This is spoken by Mr. Attorney
to prove that Cobham s Speech came not out of
passion.

Kaleigh. Let it be proved that Cobham
said so.

Attorney. Cobham saith, he was a long
time doubtful of Raleigh, that he would send
him and the money to the king. Did Cobham
fear lest you would betray him in Jersey ? Then
of necessity there must be Trust between you.
No man can betray a man, but he that is
trusted, in my understanding. This is the
greatest argument to prove that he was ac-
quainted with Cobham f s Proceedings. Raleigh
has a deeper reach, than to make himself, at
he said, ' Robin Hood, a Kett, or Cade ;' yet
I never heard that Robin Hood was a Traitor;
they say he was an outlaw. And whereas ha
saith that our king is not only more wealthy
and potent than his predecessors, but also more
politic and wise, so thut he could have no hope
to prevail; I answer, There is no king so
potent, wise and active, but he may be over-
taken through Treason. Whereas you say
Spain is so poor, discoursing so largely thereof;
it had been better for you to have kept in Gui-
ana, than to have been so well acquainted with
the state of Spain. Besides, if you could have
brought Spain and Scotland to have joined,
you rui«:bt have hoped to prevail a great deal
the better. For his six Overthrows, I answer,
he hath the more malice, because repulse* ' '

15] STATE TRIALS, 1 Jambs I. 1603.— Trial qf Sir Walter Raleigh, [10

desire of revenge. Then you say you never
talked with Cobham, but about teases, and
letting lands, and ordering hii house ; I never
knew you Clerk of the Kitchen, &c. If you
had fallen on your knees at first, and confessed
the Treason, it had been better for you. You
say, He meant to have given me a Cabinet of
30/. ; perhaps he thought by those means to
have anticipated me therewith. But you say
all these are Circumstances • I answer, all this
Accusation in Circumstance is true. Here
now I might appeal to my lords, that you take
hold of tfiis, that he subscribed not to the Ac-
cusation.

Lord Hen. Howard. Cobham was not then
pressed to subscribe.

Attorney. His Accusation being testified by
the lords, is of as great force, as if ne had sub-
scribed. Raleigh saith again, If the Accuser
be alive he must be brought face to face to
speak ; and alledges 25 Edw. 3rd that there
must be two sufficient Witnesses, that must be
brought face to face before the accused ; and
alledgeth 10 and 13 Elizabeth.

Raleigh. You try me by the Spanish Inqui-
•itition, if you proceed only by the Circum-
stances, without two Witnesses.

Attorney. This is a treasonable speech.

Raleigh. Evertere Hominemjuttum in cauta
sua injustum est. Good my lords, let it be

Jirovcu, either by the laws of the land, or the
aws of God, that there ought not to be two
Witnesses appointed; yet I will not stand to
defend this point in law, if the king will have it
. so : it is no rare thing for a man to be falsely
accused. A Judge condemned a woman in
Sarum for killing her husband on the testimony
of one Witness ; afterwards his man confessed
the Murder, when she was executed ; who
after being touched in conscience for the Judg-
ment, was used to say, Quod nunquam de hoc
J'acto anvnam in vita sua purgaret. It is also
commanded by the Scripture; Allocuhis est
Jehova Moten, in Ore duorum aut trimn Tcs-
tium, Sfc. If Christ requireth it, as it appeared),
Mat. xviii. if by the Canon, Civil Law, and
God's Word, it be required, that there must be
two Witnesses at the least ; bear with me if I
desire one. I would not desire to live, if I
were privy to Cojbham's Proceedings. I have
been a slave, a villain, a fool, if I had endea-
voured to set up Arabella, and refused so graci-
ous a lord and sovereign. But urge your proofs.
L. C. Justice. You have offered Questions
on diverse Statutes, all wluch mention two ac-
cusers in case of Indictments: you have de-
ceived yourself, for the laws of 25 Edw. 3d,
and 5 Edw. 6th are repealed. It sutficeth now
if there be Proofs made either under hand, or
by testimony of Witnesses, or by oaths; it
needs not liie Subscription of the party, so there
be hands of credible men to testify the Ex-
amination.

Raleigh. It may be an error in me; and if
those laws be repealed, yet I hope tlie equity
of them remains still,; but if you affirm it, it
must be a law to posterity. The proof of the

Common Law is by witness and jury: let Cob-
ham be here, let him speak it. Call my ac-
cuser before ray face, and I have done.

. Attorney. Scientia sceleris ett mcra igno-
rant ia. You tiave read tlie letter of the law,
but understand it not. Here was your anchor-
hold, and your rendezvous : you trust to Cobham,
either Cobham must accuse you, or* nobody ; if
he did, then it would not hurt you, because he
is but one Witness ; if he did not, .then you are
safe.

Raleigh. If ever I read a word of the law
or statutes before I was Prisoner in the Tower!
God confound me.

Attorney. Now I come to prove the Cir-
cumstances of the Accusation to be true.
Cobham confessed he had a Pass-port to travel,
hereby intending to present overtures to the
Arch-Duke, aud from thence to go to Spain,
and there to have conference with the king for
Money. You say he promised to come home
by Jersey, to make merry with you and your
wife.

Raleigh. I said in his return from France,
not Spain.

Attorney. Further in his Examination he
saith, nothing could be set down for the Dis-
tribution of the Money to the discontented,
without conference with Raleigh. You said it
should have been for procurement of Peace,
but it was for raising Rebellion. Further, Col>-
ham saith, he would never have entered into
these courses, but by your instigation, and that
you would never let him alone. Your scholar
was not apt enough to tell us all the Plots ;
that is enough for you to do, that are his mas-
ter. You intended to trust sir Arthur Savage,
whom I take to be an honest and true gentle-
man, but not sir Arthur Gorge.

Raleigh. All this is but one Accusation of
Cobham s, I hear no other thing ; to which Ac-
cusation he never subscribed nor avouched it.
I beseech you, my lords, let Cobham be sent
for, charge him on his soul, on l^s allegiance to
the king ; if he affirm it, I am guilty.

Lord Cecil. It is the Accusation of my lord
Cobham, it is the Evidence against you : must
it not be of force without his subscription ? I
desire to be resolved by the Judges, whether by
the law it is not a forcible argument of evi-
dence.

Judges. My lord, it is.

Raleigh. The king at his coronation is
sworn In omnibus Judiciis snis <rouitatemf non
rigorem Legis, observare. By the rigour and
ciueltv of the law it mav be a forciMe evidence,

L. C. J. That is not the rigour of the law,
but the justice of tlie law ; else when a man
hath made a plain Accusation, by practice he
iui»ht l>e brought to retract it again.

Raleigh. Oh my lord, you may use equity.

L. C. J. That is from the king; you are to
have justice from us.

Lord Anderson. The law is, if the matter be
proved to the jury, they must find you guilty ;
for Cobham's Accusation is not only againftt
you, there are other things sufficient.

17)

STATE TRIALS, I James I. 1603.— for High Treasou.

[IS

Lord Cecil. Now that sir Walter Raleigh is
satisfied, that Cobham's Subscription is nut ne-
cessary, I pray you, Mr. Attorney, go on.

Raleigh. Good Mr.% Attorney, be patient,
and give me .eavc.

Lord Cec il. An unnecessary patience is a.„
hindrance ; let him go on with' iiis proof-, and
then refel them.

Raleigh. I would answer particularly.

Lord Cecil. If you would have a tabic and
pen and ink, you shall.

Then paper and ink was given him. Here
the Clerk of the Cruwn rend the Letter, which
the lord Cobham did write in July, which was
to the effect of his fonner Examination ; fur-
ther saying, I hate disclosed all : to accuse any
one falsely, were to burden my own couscier.ee.

Attorney. Head Copley's Confession the
8th of June ; lie saith, lie was offered 1000
crowns to be in this action.

Here Watson's Additions were read. ' The
great mass of Money from the count was im-
possible,' &c.

Brook's Confession read. * There have Let-
ters passed, saith he, between Cobham and
Aremberg, for a great sum of Money to assist a
second action, for the surprizing of his majesty.'

Attorney. It is not possible it was of pas-
sion : for it was in talk before three men,
being severally examined, who agreed in the
sum to be bestowed on discontented persons ;
That Grey should have 12,000 crowns, and
Raleigh should have 8000, or 10,000 crowns.

Cobham* s Examination, July 18.
If the money might be procured (saith he)
then a man may give pensions. Being asked,
if a pension should not be given to his brother
Brook, he denied it not.

Lawreney'i Examination.

Within five days after Aremberg arrived,
Cobham resorted unto him. That nirfit that
Cobham went to Aremberg with Luwrency, Ra-
leigh supped with him.

Attorney. Raleigh must have his part of t he
Money,* therefore now he is a traitor. The
crown shall never stand one year on the head
of the king (my master) if a Traitor may not be
condemned by Circumstances : for if A. tells
B. and B. tells C. and C. D. &c. you shall ne-
ver prove Treason by two Witnesses.

Raleigh's Examination was read.

He confesseth Cobham offered him 8000
crowns, which he was to have for the further-
ance of the Peace between England and Spain,
and that he should have it within three (lavs.
To which he said, he gave this answer ; When
1 see the Money, I will tell you more : for I
had thought it had been one of his ordinary
idle conceits, and therefore made no Account
thereof.

Raleigh. The Attorney hath made a long
narration of Copley, and the Priests, which
concerns me nothing, neither know I how
Cobham was altered. For he told me if T
would agree to further the Peace, he would get
me 8000 crowns. I asked him, W ho shall ha ve

YOU II.

the rest of the money ? He said I will offer
such a nobleman (who was not named) some
of the Money, f said, he will not be persuaded
by yon, and he will extremely hate you for such
a motion. Let me be pinched to death with
hot iron?, if ever I knew there was anv intcu-
tion to bestow the money on discontented per-
sons. I hud made a disco m>e uguinst the
Peace, and would have prin'cd it ; if Cobham
changed his mind, ii' the I'rtctis, if llruok had
any such intent, what is that to me? They
must answer lor it. lie offered me the Money
before Aremberg came, that is difference of
time.

Scrj. Philips. Raleigh confesseth the matter,
buravoideth it by distinguishing of times. You
said it was offered you befoic the coining of
Aremberg, which is false. For yen being exa-
mined whether you should have such Money of
Cobham, or not ; you said, Yea, and that you
should have it within two or three da)S. Nctn
moriturus punumitur mentiri.

Ld. Hut. Howard. Alledge me any ground
or cause, wherefore you gave ear to my lord
Cobham for receiving Pennons, in matters you
had not to deal with.

Raleigh. Could I stop my Lord CobhanVs
mouth ?

Ld. Cecil. Sir Walter Raleigh presseth, that
my lord Cobham should be brought face to
face. If he asks things of favour and grace,
they must come only from him that can give
them. If we sit here as commissioners, how
shall we be satisfied whether he ought "to be
brought, unless we hear the Judges speak?

L. C. J. This thing cannot be granted, for
then a -uunihcr of Treasons should flourish :
the Accuser may be drawn by practise, whilst
he is in person.

Justice Gundy. The Statute you speak of
concerning two Witnesses in ruse of Treason, is
found to he inconvenient, therefore bv another
law it. was taken away.

Rultiuh. The common Trial of England is
by Jury and Witnesses.

L. C. J. No, by Examination : if three
conspire a Treason, and they all confess it;
here is never a Witness", yet they are con-
demned.

Justice Warburton. I man el, sir Walter, that
you being of such experience and wit, should
stand on this point ; tor so many horse- stealers
may escape, if they may not be condemned
without witnesses. If one should ru*h into tVtf
king's Privy-Cl#mbcr, whilst he is alone, and
kill the king (which (.Jod forbid) and tln> man
be met coming with hi.* sword dra\Mi all hhiody ;
shall not he be condemned to dc.tth ? My lord
Cobham hath, perhaps, hem laboured withal;
and to save vou, bis old friend, il mav be that
he will deny all that which »w hath -aid.

Raleigh. 1 know not how you onceive
the Law.

L. C. J- Nay, we do not com -he the Liw,
but we know \\w Law.

Ralfinh. Tee wisdom of the Law of God is
absolute and perfect Uurjac O vivo?, «,S c. But

c

15]

STATE TRIA 15, 1 Jame» I. 1003.— Trial qf Sir Walter Raleigh,

[M

dow by the Wisdom of the Stuff , the Wisdom of be charged with them ? I will not hear i

Indeed, where the Ac-

it to be hud conveniently, I agree with
v»ii; but here my Accuser may; he is. alive, and
in the house. Susnnna had been condemned, if
Dnniel had not cried out, * Will you condemn
an innocent Israelite, without ex ami nation or
knowledge of the truilif* Remember, it is ab-
solutely the Commandment of God : If a fulsc
witness rise up, you shall cause him to be brought
before the Judges; if he be found false, he shall
have the punishment which the accused should
hate had. It is very sure, for my lord to accuse
me is my certain danger, and it may be a means
to excuse himself.

L. C. J. There must not such a gap be
opened for the destruction of the king, ns would
he if we should grant this. You plead hard
for yourself, but the laws plead as hard for the
king. I did never hear that course to be taken
in a case of Treason, ns to write one to aniithcr,
or apeak one to another, during the time of
their imprisonment. There hath been intelli-
gence between jouj and what under-hand
practices there may he, I know not. If the
circumstances agree nut with the Evidence, we
fill not condemn you.

Raleigh. The king dciires nothing but the
knowledge of the truth, and would have no ad-
vantage tjken by severity of the law. If ever
we bud a gracious king, now we have; I hope,
ns he is, such are his ministers. If there be
but u trial of live marks at Common Law, a
witness must be deposed. Good tny lords, let
my Accuser come face to face, and be deposed.

L. C. J. You have no law for it : God for-
bid any man should accuse himself upon his

Attorney. The law presumes, a man will
not accuse himself to accuse another. You are
no odious man: for Cohham thinks his cause
theworse that you arc in it. Now you shall
hear of some stirs to he raised in Scotland.
Pari of Copley'* Exaniination.

" Also Watson told me, that a special per-
son told him, that Aremberg offered to him
1000 crowns to be in that action; and that
Brook said, the Stirs in Scotland rone out of
Raleigh's head."

Raleigh, Brook liath been taugbl his Lcs-

I.ti. Urn. Hoamrd. This Examination was
taken before. Did I teach him his lesson ?

Raleigh. I protest before Qi-td, I meant it
not by any privy-counsellor; hut because mo-
ney is scant, he will juggle on both sides.*
Raleigh'i Eranii.iatiim.

" The way to invade England, were to be-
gin with Stirs in Seotland."

Raleigh. I think so still : I have spoken it to
divers of the Lords of the Council, by way of
discourse and opinion.

Attorney. Now let ns come to those words

* (/ drtl roving the king and

RaUish. O barbarous • _._,.._ .._

ton! villains, should use those words, shall I

J barbarous ! If they, like It

was never any Plotter with them against my

ury, I was never false to the crown of

land. I have spent 4000 pounds of my

against the Spanish Faction, fur the good

of my country. Do you bring the words of

these hellish spiders, Clark, Watson, and others.

ler

Attorney. Thou hast a Spanish heart, and
thyself art a Spider ofllell; tor tliuu confesses!
the king to he a most sweet and gracious prince,
and yet hast conspired against bun.
Wat ion' i Examination read.
He said, that George Biook told him twice.
That his brother, the lord Cobliam, said to liiin,
that you are but on the bye, but Raleigh and I
are on the main."

Brook' » Examination read.

" Being asked what was meant by this Jar-
gon, the Bye and the Main ? he said, That the
lord Cohham told him, that Grey and others
were in the Bye, he and Raleigh were on the
Main. Being asked, what exposition his bro-
ther made of these words? He said, he is loath
to repnnt it. And after saith, by the main
was meant the taking away of the king and
his issue ; and thinks on bis conscience, it was
infused into his brother's head by Raleigh."
Cobham'i Examination read.

" Being asked, if ever he had said, * It will
never he well in England, till the king and his
enhs were taken away;' he said, he had answer-
ed before, and that he would answer no more
to that point."

Raleigh. I am not named in all tin's : there
is a law of two sorts of Accusers ; one of his
own knowledge, another by hear-say.

¥.. of Suffolk. .See the Case of Arnold.

L. V. J. It is the Case of sir Will. Thomas,
and sir Nicholas Arnold.

Raleigh. If this may be, you will have any

'slile

week.

Attorney. Raleigh saith, that Cobham was
in a passion when he said so. Would he tell
his brother any thing of malice against Raleigh,
whom he loved as his life?

Ralchh. Brook never loved me; until hi*
brother had accused me, he said nothing.

Id. Cecil. We have heard nothing that
might lead us to think that Brook accused you,
he was only in the surprizing Treason : for by
accusing vuu he should accuse his brother.

r.nleigh. He doth not much care for that.

IjI. Cecil. I must judge tlie best. The ac-
cusation of his brother was notVoluntary; he
pared every thing as much as he could to save
his brother.

Cobham'i Examination read.

" He saith he had a Book written against
the Title of the King, which be had of Raleigh,
and tltit he gave it to his brother Brook : and
Raleigh said it was foolishly written."

Attorney. After tlie king caine within 11
miles of London. Cobham never cunt to Me
him; and intended to travel without seeing the

21]

STATE TRIALS, I JUnes I. 1603.— Jbr High Treason.

[52

queen and the prince. Now in thin discon-
tentment you gave him the Book, and he gave
it his brother.

Raleigh. I never gave it him, he took it off
my table. For I well remember a little before
that time I received a Challenge from sir Amias
Preston, and for that I did intenji to answer
it, I resolved to leave my estate settled, there-
fore laid out all my loose Papers, amongst which
was this Book.

Ld. Havard. Where had you this Book ?

Raleigh. In the old Lord Treasurer's Study,
after his death.

Ld. Cecil. Did you ever shew or make
known the Book to me ? '

Raleigh. No, my Lord.

Ld. Cecil. Was it one of die books which
was left to me or my brother?

Raleigh. I took it out of the study in my
Lord Treasurer's house in the Strand.'

Ld. Cecil. After my father's decease, sir
Walter Raleigh desired to search for some Cos-
Biographical descriptions of the Indies, which
he thought were in his Study, and were not to
be had in print; which I granted, and would
have trusted sir Walter Raleigh as soon as any
man : though since for some infirmities, the
bands of my aifection to liim have been bro-
ken; and yet reserving my duty to the king my
master, which I can by no means dispense with,
by God, I love him, and have a great conflict
witliin myself: but I must needs say, sir Waiter
used me a little unkindly to take the Book
away without my knowledge : nevertheless, I
need make no apology in behalf of my father,
considering liow useful and necessary it is for
privy-counsellors and those in his place to in-
tercept and keep such kind of writings ; for
whosoever should then search his study may in
all likelihood find all the notorious Libels that
•ere writ against the late queen ; and whoso-
ever should rummage my Study, or at least my
Cabinet, may find several against the king, our
Sorereign Lord, since his accession to the
throne.

Raleigh. The Book was in Manuscript,
and the late Lord Treasurer had wrote in the
beginning of it with his own Hand, these
words, ( This is the Book of Robert Snagg.'
And I do own, as my lord Cecil has said, that
1 believe they may also find in my house almost
all the Libels that have been writ against the
late queen.

Att. You were no privy-counsellor, and I
hope never shall be.

Ld. Cecil. He was not a sworn counsellor
of state, but he has been called to consul-
tations.

Raleigh. I think it a very severe interpre-
tation of the law, to bring me within compass of
Treason for this Book, writ so long ago, of
allien nobody had rend any more than the
Head* of the Chapters, and which was burnt by
O. Brook without my privity ; admitting I had
delivered the same to the lord Cobham, with-
out allowing or approving, but discommending
it, according to Cobhajn s first Accusation :

and put the. case, I should come to my lord
Cecil, as I have often done, and find a stran-
ger with bim, with a packet or Libels, and my
lord should let me have one or two of them to
peruse : this I hope is no Treason.

Att. I observe there was intelligence be-
tween you and Cobham in the Tower; for
after he said it was against the king's Title, ha
denied it again.

Sir W. Wade. First, my lord Cobham con-
fessed) it, and after he had subscribed it, be
revoked it again : to me he always said, that
tlie drift of it was against the king's Title.

Raleigh. _ I protest before God, and all his
works, I gave lum not the Book.
Note9 Sir Robert Wroth speaketb, or whis*
pereth something secretly.

Alt. My lords, I must complain^ of sir
Robert Wroth ; he says this Evidence is not
material.

Sir R. Wroth. I never spake the words.

Att. Let Mr. Serjeant Philips' testify whe-
ther he heard him say the words or no.

Ld. Cecil. I will give my word for sir R.
Wroth.

Sir R. Wroth. I will speak as truly as you,
. Mr. Attorney, for by God, I never spake it.

L. C. J. Wherefore should this Book be
burnt ?

Raleigh. I burned it not.

Seij. Philips. You presented your friend
with it when he was discontented. If it had
been before the queen's death, it had been a
less matter ; but you gave it him presently
when he came from the king, which was the
time of his discontentment.

Raleigh. Here is a Book supposed to be
treasonable ; I never read it, commended it, or
delivered it, nor urged it.

Attorney. Why, tins is cunning.

Raleigh. Every thing that doth make for
me is cunning, and every thing that maketa
against me is probable.

Att. Lord Cobham saith, that Kemish
came to him with a letter torn, and did wUh
him not to be dismayed, for one witness could
not hurt him.

Raleigh. This poor man hath been close
prisoner these 13 weeks ; he was offered the
rack to make him confess. I never sent any
such message by him ; I only writ to him, to
tell lum what I had done with Mr. Attorney ;
having of his at that timo a great pearl and a
diamond.

Ld. II. Howard. No circumstance moveth
me more than this. Kemish was never on the
rack, the king gave charge that no rigour
should he used.

Commissioners. We protest before God,
there was no such matter intended to our know-
ledge.

Raleigh. Was not the Keeper of the Rack
sent for, and he threatened with it?

Sir W. Wade. When Mr. Solicitor -and my-
self examined Kemish, we told him hedocned
the Rack, hut did hot threaten him with it.

Commissioners. It was niote than we knew.

2S] STATE TRIALS, 1 James I. 1603.— Trial of Sir Walter Raleigh,

[24

Cob/tarn* $ E rumination read.

lie saith, Kemish brought him a Letter from
Raleigh, and that part which was concerning
the Lords of the Council was rent out; the
Letter contained that he was examined, and
cleared himself of aH ; and that the lord II.
Howard said, because he was discontent, he
was fit to be in the action. And further, that
Kemish said to him from Raleigh, that he
should be of pood comfort, for one witness
could not condemn a man for treason.

Ld. Cecil. Cobham was asked, whether,
and when he heard from you ? He said, every
•day.

Raleigh. Kemish added more, I never bade
him speak those words.

Note, Mr. Attorney here offered to interrupt
him.

Ld. Cecil. It is his last Discourse ; give
him leave, Mr. Attorney.

Raleigh. I am accused concerning Arabella,
•concerning Money out of Spain. My L. C.
Justice saith, a man may be condemned with
one Witness, yen, without any Witness. Cob-
ham is gnilty of many things, Conseicniia mille
testes ; he hath accused himself, what cm he ,
hope for but mercy ? My lords, vouchsafe me
this grace : let him be brought, being alive,
and in 'the house ; let him avouch any of these
tlungs, I will confess the whole Indictment,
nod renounce the king's mercy.

Ld. Cecil. Here hath been a touch of the
ladv Arabella Stuart, a near kinswoman of the
king's. Let us not scandal the innocent by
confusion of speech: she is as innocent of all
these things ns I, or any man here ; only sbc
received a Letter from my lord Cobham, to
prepare her; which she laughed at, and imme-
diately sent it to the ki'ig. So far was she from
discontentment, that she laughed him to scorn.
But you see how far the count of Aremberg did
consent.

The Lord Admiral (Nottingham) being by in
a Standing, with the lady Arabella, spake to
the court : The lady doth here protest upon her
salvation, that she never dealt in any of these
things ; and so she willed me to tell the court.

Ld. Cecil. The lord Cobham wrote to my
lady Arabella, to know if he might come to
speak with her, and gave her to understand,
that there were some about the king that la-
boured to disgrace her ; she doubted it was but
a trick. But Brook saith, his brother moved
him to procure Arabella to write Letters to the
king of Spain ; but he saith, he never did it.

Raleigh. The lord Cobham hath accused
me, you see in what manner he hath forsworn
it. Were it not for his Accusation, all thi>
were nothing. Let him be asked, if 1 knew
of the letter which Lawnriicy brought to him
from Arcmherg. Let me speak for my life, it
can be no hurt for him to be brought ; lie
dares not accuse me. If you grant me not this
favour, I am strangely used ; Campian* was
sot denied to have his accusers lace to face.

■ T — f — ■ ■ f ^ ■ ■■■■! — I — ■

• See No. 5&

L. C. J. Since he must needs have justice,
the acquitting of his old friend may move him
to speak otherwise than the truth.

Raleigh. If I had been the infuser of all
these Treasons into him ; vou Gentlemen ef
the Jury, mark this, he said I have been the
cause of all his miseries, and the destruction of
his house, and that all evil hath happened unto
him by my wicked counsel : if this be true,
whom hath he cause to accuse and to be re-
venged on, but on me ? And I know him to be
as revengeful as any man on earth.

Attorney. He is a party, and may not come ;
the law is against it.

Raleigh. It is a toy to tell rae of law ; I
defy such law, I stand on the fact.

Ld. Cf.cil. I am afraid my often speaking
(who am inferior to my lords here present) wirll
make tl*» woild think i delight to hear myself
talk. My affection to you, bir Walter, was not
extinguished, but slaked, in regard of your de-
serts. You know the law of the realm (to
which your mind doth not contest), that my
lord Cobham cannot be brought.

R-aieigh. lie may be, my lord.

Ld. Cecil. But dare you challenge it ?

Raliigh. No.

Ijord Cecil. You say that my lord Cobham,
your main accuser, must come to accuse you.
You say he hath retracted : I say, many par-
ticulars are not retracted. What the validity
of all this is, is merely left to the Jury. Let me
ask you this, If my lord Cobham will say you
were the only instigator of him to proceed in
the Treasons, dare you put yourself on this ?

Rakigh. If he will speak it before God and
the king, that ever I knew of Arabella's matter,
or the Money out of Spain, or oi* the surprising
Treason ; 1 put myself on it, God's will and
the king's be done with me.

Lord If. Howard. How ! if he speak things
equivalent to that you have said ?

Ralcidi. Yes, m the main point.

Lord Cecil. If he say, you have been the
instigator of him to deal with the Spanish king,
had not the council cause* to draw you hither ?

Raleigh, I put myself on it.

Lord Cecil. Then, sir Walter, call upon God,
and prepare yourself ; for I do verily believe
my lords will prove this. Excepting your faults
(I call them no worse), by God, 1 am your
friend. The heat and passion in you, and the
Attorney's zeal in the king's service, makes me
speak this.

Raltigh. Whosoever is the workman, it is
reason lie should give an account of his work to
the u ork-masler. But let it be proved that he
acquainted me with any of his conferences with
A i em hcrg : lie would surely have given me some
account.

Iwd Cecil. That follows not : If I set you
on woik, and you give me no account, am I
therefore innocent ?

Att. For the lady Arabella, I said she was
never acquainted with the matter. Now that
Raleigh had conference in nil these Treasons, it
it manifest. The Jury hath beard the matter.

*]

STATE TRIALS, 1 James I. 16()3.-/or High Treason.

[26

There is one Dyer a pilot, that being in Lisbon,
met with a Portugal gentleman who asked him
if the king of England was crowned yet : To
whom he answered, ' I think not yet, but he
1 shall be shortly/ Nay, saith the Portugal,
that shall never be, for his throat will be cut
by Dun Raleigh and DonCobham before he be
crowned.

Dte* teas -called and sworn, and delivered this

Evidence.

Dyer. I came to a merchant's house in Lis-
bon, to see a boy that I bad there ; there came
a gentleman into -the house, and enquiring what
-countryman I was, I said, an Englishman.
Whereupon be asked me, if the king was crown-
ed ? And I answered, No, but that I hoped he
should be so shortly. Nay, saith he, he shall
never be crowned*; for Don Raleigh and Don
Cobham will cut bis throat ere that day come.

Raleigh. What infer you upon this ?

Att. That your Treason hath wings.

Raleigh. If Cobham did practise with Arern-
berg, how could it not but be known in Spain ?
Why did they name the duke of Buckingham
with Jack Straw's Treason, and the duke of
Yoik with Jack Cade, but that it was to coun-
tenance his Treason? Consider, you Gentle-
men of the Jury, there is no cause so doubt till
which the king's counsel cannot make good
against the law. Consider my disability, and'
their ability : they prove nothing against me,
ooly they bring the Accusation of my lord Cob-
ban, which he hath lamented and repented as
heartily, as if it had been for an horrible mur-
der: for he knew that all this sorrow which
should come to me, is by his means. Presump-
tions must proceed from precedent or subsc-
4)oent facts. I haye spent '10,000 crowns against
the Spaniard. I had not purchased 40 pound
a year. If I had died in Guiana, I had not left
600 marks a year to my wife and son. I that
have always condemned the Spanish Paction,
Bethinks it is a strange thin*; that now I should
affect it ! Remember what St. Austin says, Sic
judical e tanquam uh alio moi judwandi ; unus
jWcr, unutn Tribunal. If you would be con-
tented on presumptions to be delivered up to
be slaughtered, to have your wives and children
tamed into the streets to beg their bread ; if
you would be contented to be so judged, judge
so of me.

Serj. Philips. I hope to make this so clear,
a* that the wit of man shall have no colour to
ai'iwer it. The matter i» Treason in the high-
est degree, the end to deprive the king of his
crow n. The particular Treasons are these : first,
to rai*e up Rebellion, and to effect that, to
procure Money ; to raise up Tumults in Scot-
land, by dj\ uluing a treasonable Book against
the kins'* right to the crown ; the purpose, to
tale away the life of his majesty and his issue.
My loid Cobham confesseth sir Walter to be
guilty of all these Treasons. The question is,
»!»' iher he be guilty as joining with him, or in-
tubating of him ? 1 he course to prove tin*, was
by my lord Cobbam's Accusation. If that be

true, he is guilty ; if not, he is clear. So whe-
ther Cobham say true, or Raleigh, that is the
question. Raleigh hath no answer but the
shadow of as much wit, as the wit of man can
devise. He uscth his bare denial ; the denial
of a Defendant must not move the Jury. In
the Star Chamber, or in the Chancery, for mat-
ter of Title, if the Defendant be called in ques-
tion, his denial on his oath is no Evidence to
the Court to clear him, he doth it in propria
causa ; therefore much less in matters of Trea-
son. Cohhani's testification against him before
them, and since, hath been largely discoursed.
Raleigh. If truth be constant, and constancy
be in truth, why hath he forsworn that that he
hath said ? You have not proved any one thing
against me by direct Proofs, but all by circum-
stances.

Att. Have you done ? The king must have
the last.

Raleigh. Nay, Mr. Attorney, he which
speaketh for his life, must speak last. False
repetitions and mistakings must not mar my
cause. You should speak secundum allegata et
probata. I appeal to Cod and the king in this
point, whether Cobhum's Accusation be suffi-
cient to condemn me.

Att. The king's safety and your clearing
cannot agree. I protest before God, I never
knew a clearer Treason.

Raleigh. I never had intelligence with Cob-j
liam since I came to the Tower.

Att. Go to, 1 will lay thee upon thy back,
for the; confidentest Traitor that ever came at
a bar. Why should you take 8,000 crowns for
a peace ?

Lord Cecil. Be not so impatient, good Mr.
Attorney, give him leave to speak.

Att. If I may not be patiently heard, yon
will encourage Traitors, and discourage us. I
am the king's sworn servant, and must speak ;
If he be guilty, he is a Traitor ; if not, deliver"
him.

Note, Here Mr. Attorney sat down in a chafe,
and would speak no more, until the Com-
missioners urged and intreated him. After
much ado, he went on, and made a long
repetition of all the Evidence, for the direc-
tion cf the Jury ; and at the repeating of
some things, sir Walter Raleigh interrupted
him, and said, he did him wrong.
Att. Thou art the most vile and execrable
Traitor that ever lived.

Raleigh. You speak indiscreetly, barbar-
ously and uncivilly.

Att. I want words sufficient to express thy
viperoMs Treasons.

Raleigh. I think you want words indeed,
for you have spoken one thing half a dozen
times.

Att. Thou art an odious fellow, thy name
is hateful to all the realm of England for thy
pride.

Raleigh. It will go near to prove a mea-
Miring east between you and me, Mr. Attorney.
Att. Well, I* will now make it appear to
the \%orld, that there never lived a viler '

*71

STATE TRIALS, 1 Jamks I. 1603.— Trial of Sir Walter Rakfch,

[28

upon the face of the earth than thou. And
therewithal he drew a Letter out of his pocket,
saying further, My lords, .you shall see, this is
an Agent that hath writ a Treatise against the
Spaniard, and hath ever so detested him ; this
is. he that hath spent so much Money against
him in service ; and yet you shall all see whe-
ther his heart he not wholly Spanish. The
lord Cobham, who of his own nature was a

food and honourable gentleman, till overtaken
y this wretch, now finding his conscience
heavily burdened with some courses which the
subtilty of this Traitor had drawn him into ;
my lords, he could be at uo rest with himself,
nor quiet in his thoughts, until he was eased of
that heavy weight : out of which passion of his
mind, and discharge of his duty to his prince,
and his conscience to God, taking it upon his
salvation that he wrote nothing but the truth,
with his own hands he wrote this Letter.
Now, sir, you shall see whether you had intelli-
gence with Cohham, within four days before
he came to the Tower. If he be wholly Span-
ish, that desired a Pension of 1500/. a year
from Spain, that Spain by him might have in-
telligence, then Raleigh is a Traitor : He hath
taken an apple, and pinned a Letter unto it,
and threw iuinto my lord Cobham's window ;
the contents whereof were this, ' It is doubtful
' whether we $hall he proceeded with or no,

* perhaps you shall not be tried.' This was to
get a retractation. Oh ! it was Adam's apple,
whereby the devil did deceive him. Further,
he wrote thus, « Do not as my lord of Emcx

* did ; take heed of a Preacher ; for by his
' persuasion he confessed, and made himself
' guilty/ I doubt not but this day God shall
have as grout a conquest by this Traitor, and

4 the Son of God shall be as much glorified, as
when it was said, Vicisti, Gulilae ; you know
my meaning. What though Cob ham retract-
ed, yet he could not rest nor sleep till he con-
firmed it again. l\ this be not enough to prove
him a Traitor, the king my master shall not live
three years to an end.

Noto, Here Mr. Attorney produced the lord
Cobham's Letter, and as he read it, inserted
some speeches.

* I have thought fit to set down this to my
' lords, wherein I protest on my soul to write

* nothing but the truth. I am uow come near
' the period of my time, therefore I confess
' the w hole truth before God and his angels.
' Raleigh, four days before I came from the
4 Tower, caused an apple' (Eve's apple) ' to be

* thrown in at my chamber window ; the effect
' of it was, to intre.it *no to risrht the wrong
' that I had done him, in siying, ' that I should
' hive come home by Jersey;* which under

* my hand to him I have ret rat-ted. His first
' Letter I answered not, which was thrown in
' the same manner ; whertiu he grayed me to
< write him a Letter, which I did. He tent
4 me word, that the Judges met at Mr. Attor-
4 ney's house, and that there was good hope
4 the proceedings against us should be slaved :

' he sent me another time a little tobacco.
1 At Aiemberg's coming, Raleigh was to have
' procured a pension of 1500/. a year, for

* which he promised, that no action should be
< against Spain, the Low Countries, or the In-

* dies, but he would give knowledge before-

* hand. He told me, the States had audience
'with the king.* — (Attorney, ' Ah ! is not this
a Spanish heart in an English body ?') * He
4 hath been' the original cause of my ruin ; for

* I had no dealing with A rem berg, but by his
' instigation. He hath also been the cause of

* my discontentment ; he advised me, not to
' be overtaken with preachers, as Essex was ;
' and that' the king would better allow of a
1 constant dcuial, than to accuse any/

Att. Oh, damnable atheist ! He hath
learned some Text of Scripture to serve bis
own purpose, but falsely alledged. He coun-
sels him not to be counselled by preachers, as
Eh-tex was : He died die child of God, God
honoured him at his death ; thou wast by when
he died * ; Et lupus et turpes instant moricn~
Ubus Ursa, He died indeed for his offence.
The king himself spake these words ; * He that
' shall say, Essex died not for Treason, is
' punishable.'

Raleigh. You have heard a strange tale of
a strange man. Now he thinks, he hath mat-
ter enough to destroy me ; but the king and all
of you shall witness, by our deaths, which of
us was the ruin of the other. I bid a poor fel-
low throw in the Letter at his window, written
to this purpose ; ( You know you have undone
me, now write three lines to justify me.' In
this I will die, that he hath done me wrong :
Why did not he acquaint him with my disposi-
tions ?

L. C. J But what say you now of the Let-
ter, and the Pension of 1500/. per annum ?

liuicifih. I say, that Cobham is a base, dis-
honourable, poor soul.

Att. Is he base ? I return it into thy throat
on his behalf: But for thee he liad been a good
subject.

L. C. J. I perceive you are not so clear a
man, as you have protested all this while ; for
you should have discovered these matters to
the king.

Nota, Here Raleigh pulled a Letter out of his
pocket, which the lord Cobhain had written
to him, and desired my lord Cecil to read
it, because he only knew his hand ; the ef-
fect of it was as follows :

Cobham's Letter of Justification to Raleigh.

1 Seeing myself so near mv end, for the dis-
charge of my own conscience, and freeing
myself from your blood, which else will cry
vengeance against me; I protest upon my
salvation I never practised with Spain by
your procurement; God so comfort me in
this my affliction, as you are a true subject,
for any thing that I know. I will say as
Daniel, Purus sum d sanguine hujus. So

* See rol. 1. p. 1359.

23]

STATE TRIALS, 1 James I. 1003.-: for High Treason.

[30

1 God have mercy upon my soul, as I know no
* Treason by you/

Raleigh. Now I wonder how many souls
this man hath ! He damns one in this Aictter,
tnd another in that.

[Here was much ado : Mr. Attorney alledg-
ed, that his last Letter was politicly und cun-
ningly urged from the lord Cobham, and that
the first was simply the truth ; and that lest it
ihould seem doubtful tliat the first Letter was
drawn from my lord Cobham by promise of
mercy, or hope of favour, the Ld. C. J. billed
that the Jury might herein be satisfied.
Whereupon the earl of Devonshire delivered,
that die same was mere voluntary, and not ex-
tracted from the lord Cobham upon any hopes
or promise of Pardon.]

This was the last Evidence • : whereupon a
Marshal was sworn to keep the Jury private.
The Jury departed, and staid not a quarter of
ui hour, but returned, and gave their verdict,
Guilty.

Serf. Heale demanded Judgment ngainst
the Prisoner.

Clerk of the Crown. Sir Walter Raleigh,
Thou hast been indicted, arraigned, and plead-
ed Not Guilty, for all these several Treasons ;
and for Trial thereof, bast put thyself upon thy
country ; which country are these, who have
found thee Guilty. What canst thou say for
thyself, why Judgment and Execution of Death
•hootd not pass against thee ?

Raleigh. My lords, die Jury have found
me Guilty : they must do as they are directed.
I can say nothing why Judgment should not
proceed. You see whereof Cobham hath ac-
cused me : you remember his Protestations,
that I was never Guilty. I desire the king
fiboeld know of the wrongs done unto me
since I came hither.

L. C. J. You have had no wrong, sir Wal-
ter.

Raleigh. Yes, of Mr. Attorney, I desire
nj lords to remember three things to the
king. 1. I was accused to be a practiser with
Spain : 1 never knew that my lord Cobham
meant to go thither ; I will ask no mercy at
the king's hands,' if he will affirm it. 2. 1 never
knew of the practice with Arabella. 3. 1 never
knew of my lord Cobhatn's practice with Arem-
kert» nor of the surprizing Treason.

L. C. J. In my conscience, I am persuaded
that Cobham hath accused you truly. You
cannot deny, but that you were dealt with to
have a Pension to be a spy for Spain ; there-
fore y.j are not so true to the king as you
We protested yourself to be.

Raleigh. I submit myself to the king's

* Kennett says that " Upon the trial, sir
Walter Raleigh denying the tact, pleaded, That
though it were proved, it could not amount to
Treason against king James, being done in the
reign of the late queen; and no acts of parlia-
ment made to entail the crown upon him after
W death."

mercy ; I know his mercy is greater than my
o Hence. I recommend my wife, and son of
tender years, unbrought up, to his compassion.
L. C. J. I thought I should never have
seen this day, to have' stood in this place to
give Sentence of Death against you ; because
I thought it impossible, that one of so great
parts should have fallen so grievously. God
hath bestowed on you many benefits. You
had been a man fit and able to have served
the king in good place. You had brought
yourself into a good state of living; if you had
entered into a good consideration of your
estate, and not su tiered your own wit to have
in trapped yourself, you might have lived in
good comfort. It is best for man not to seek
to climb too high, lest he fall : nor yet to creep
too low, lest he be trodden on. It was the
Poesy of the wisest and greatest Counsellor of
our time in EngUuid, In medio sputio medio-
cria firma locantur. You might have lived
well with 3000/. a vear, for so I have heard
your Revenues to be. 1 know nothing might
move you to be discontented : but if you hud
been down, you know fortune's wheel, when it
is turned about, riseth again. 1 never heard
that the king took away any thing from you,
bur the Captainship of the Guard, which he
did with very good reason, to have one of his
own knowledge, whom he might trust, in that
place. You have heen taken tor a wise man,
and so have shewed wit enough this day.
Again, for Monopolies for Wine, &c. if the
king had said, It is a matter that offends my
people, should I burden them for your private
good ? 1 think you could not well take it hard-
ly, that his subjects were cased, though by
your private hindrance. Two \ ices have lodged
chiefly in you ; one is an eager ambition, the
other corrupt covetousness. Ambition, in de-
siring to be advanced to equal grace and fa-
vour, as you have been before time ; that
grace you had then, you got not in a day or
year. For your covetousness, I am sorry to
hear that a gentleman of your wealth should
become a base Spy for the enemy, which is
the vilest of all other ; wherein on my con-
science Cobham hath said true : by it you
would have increased your living 1500?. a year.
This covetousnos is like a canker, that eats
the iron place where it lives. Your case being
thus, lej it not grieve you, if 1 speak a little
out of zeal, and love to vour good. You have
been taxed by the world, with the Defence of
the most heathenish and blasphemous Opinions,
which I list not to repeat, because Christian
ears cannot endure to hear them, nor the au-
thors and maintained of them be suffered to .
live in any Christian Commonwealth. You
know what men said of llarpool. You shall
do well, before you go out of the world, to give
satisfaction therein, and not to die with these
imputations on you. Let not any devil per-
suade you to think there is no eternity iu
Heaven : for if you think thus, you shall find
eternity in Hell-fire. In the first accusation of
my lord Cobham, I observed his manner of

31]

STATE TRIALS, 1 James I. ltfOS.— Trial qf Sir Walter Raleigh,

[32

speaking ; I protest before the living God, I
am persuaded he spoke nothing but the truth.
You wrote, that he should not in any case
confess any thing to a Preacher, telling him an
example of my lord of Essex, that noble earl
that is gone ; who, if he had not been carried
away with others, had lived in honour to this
day among us : he confessed his offences, and
obtained mercy of the Lord ; for I am verily
persuaded in my heart, he died a worthy ser-
vant of God. Your conceit of not coniessing
any thing, is very inhuman and wicked. In
this world is the time of confessing, that we
may be absolved at the Day of Judgment.
You have shewed a fearful sign of denying God,
in advising a man not to confess the truth, it
now comes in my mind, why you may not have
your Accuser come face to face : tor such an
one is easily brought to retract, when he seeth
there is no hope of his own life. It is dange-
rous that any Traitors should have access to,
or conference with one another ; when they
see themselves must die, they will think it best
to have their fellow live, that he may commit
the like Treason again, and so in some sort
seek revenge. — Now it resteth to pronounce
the Judgment, which I wish you had not been
this day to have received of me : for if the
fear of God in you had been answerable to
your other great parts, yuu might have lived to
have been a sinuular good subject. I never
saw the like Trial, and hope 1 *hall never see
the like again :

The JVDT.MEM',

But since you have been found guilty of these
horrible Treasons, the judgment of this court
is *, That you s-hull be had from hence to the
place whence you came, there to remain until
the day of execution; and from thence you
shall be drawn upon a hurdle through the open
streets to the place of execution, there to be
hanged and cut down alive, and your body
shall be opened, your heart and bowels plucked
out, and your privy members cut off, and
thrown into the fire before your eyes ; then your
head to be stricken off from your body, and
your body shall be divided into four quarters,
to be disposed of at the king's pleasure: And
God have mercy upon your soul.

Sir Walter Raleigh Besought the carl of
Devonshire, and the lords, to be suitors on his
behalf to the king; that in regard of places of
estimation he did bear in his majesty's time,
the rigour of his Judgment might be qualified,
and his death be honourable, and not igno-
minious. Wherein after they had promised
him to do their utmost endeavours, the court
rose, and the prisoner was carried up again to
the castle.

Fourteen years sir Walter had spent in the

* As to the Judgment for Treason and the
difference between the Judgment pronounced
and that entered on the record, see Lord Der-
wentwater's Case, infra, a. d. 1715, and East's
Pleas of the Crown, ch. 2. •. 78.

Tower, and being weary of a state wherein he
could be only serviceable by his pen, but not
in a capacity of serving and enriching his
country any other way, (of whom prince Henry
would say, ' that no king but his father would
keep such a bird in a cage;') at length he fell
upon an enterprize of a golden mine in Guiana
in the Southern parts of America. The propo-
sition of rhis was presented and recommended
to his majesty by sir Ralph VVinwood, Secretary
of State, ns*a matter not in the air, or specula-
tive, but real, and of certainty : for that sir
Walter had seen of the ore of the mine, and
tried the richness of it, having gotten a pound
from thence by the hands of Captain Kemish's
ancient servant. — Sir Ralph's recommendation*
of the design, and the earnest solicitations for
his enlargement by the queen and prince, and
the French Leiger, (with much affection to his
deserts, not without some politic designs on
Spain) together with the asseverations of sir Wal-
ter of the truth of the mine, worked upon his
majesty, who thought himself in honour obliged,
nay, in a manner engaged, as the Declaration
which he published after the death of sir Walter
tells us, not to deny unto his people the adven-
ture and hope of so great riches to be sought
and achieved at the charge of volunteers, espe-
cially since it stood so well with his majesty's
politic and magnanimous courses in these his
nourishing times of peace to nourish and encou-
rage noble and generous enterprizes for planta-
tions, discoveries, and opening of a new trade.
— Count Goudomar, an active and subtle in-
strument to serve his master's ends, took alarm
at this, and represented to his majesty the
Enterprize of sir Walter to be hostile, and pre-
datory, intending a breach of the peace between
the two crowns. But notwithstanding, power
at last is granted to sir Walter to set forth ships
and men for that sen ice. llowoer, the king
commanded him upon pain of his allegiance,
to give him under hi* hand, promising, on the
word o( a king, to keep it secret, the number of
his men, the burden and strength of his ships, to-
gether with the country and river which he was
to enter: Which being done accordingly by sir
Walter, that very original Paper was found in
the Spanish governor's closet at St. Thomas's.
So active were the Spanish ministers, that ad-
vertisement was sent to Spain, and thence to
the Indies, before the English Fleet got out of
the Thames. — But as we have just cause to
admire the' more than usual activity of the
Spanish Agents, so may we wonder no less at
I the miscarriage of his majesty's present minis-
ters, who, notwithstanding he had pasr£d his
royal word to the contrary, yet they did help
count Gondoraar to that very Paper; so much
both king and court were at Gondomar's ser-
vice. A Commission* indeed is granted, but
by Gondomar's means is limited, That the

* This Commission bears date Aug. 26,
1616, and is to be found in 1 Rymer's Eccdera,
789, wherein no mention is made of the king of
Spain, or his subjects, notwithstanding it is so

S3]

STATE TRIALS, 1 James I. 1003.— /or High Treason.

[34

Fleet should commit no outrages upon the king
of Spain's subjects by lund, unless they begun
first. With this commission, and the company
of several brave captains, and other knights
and gentlemen of great blood and worth, he
set out in quest of the Mine with a compleat
fleet of 12 sail ; letting fall a Speech at his de-
parture, which was rather an argument of his
wit than liis wisdom ; * That his whole History
' of the World hud not the like precedent, of a
1 king's prisoner to purchase freedom, and his
' bosom favourite to have the halter, but in
' Scripture, Mordecai and Haman ;* meaning
himself and the carl of Somerset. To which
he was told, that the king replied, * He might
die in that deceit.* Which he did, for Somer-
set was saved. Of whom was made good what
sir Waller used to say of Favourites, * That
minions were not so happy as vulgar judgments
thought them, being frequently commanded to
uncomely, and sometimes to unnatural employ-
ments.' On the 17 th of Nov. he arrived at Guiana
having been much retarded by contrary winds,
and having lost several of his volunteers in the
voyage, by a violent calenture. When sir Wal*
ter was returned to Plymouth, sir Lewis Stetikly,
Vice-Adiniral of the county of Devon, seized
him, being commissioned by his majesty to
bring him to London ; which could add no ter-
ror to a person who could expect nothing less.
When be was brought to London, he was per-
mitted the confinement of his own house: but'
fading the court wholly guided by Gondomar,
he could hope for little mercy ; therefore he
wisely contrived the design of an escape into
France; which sir Lewis Steukly betrayed.

The Voyage proving unsuccessful, king James
was willing to sacrifice the life of sir Walter11 to
the advancement of peace with Spain, but not
upon such grounds as the ambassador had de-
signed; for he desired a Judgment upon the
pretended breach of peace, that by this occa-
sion he might slily gain from (he English an
acknowledgment of his master's right in those
places, and hereafter both stop their mouths,
and quench their heat and valour.

Hence they resolved to proceed against him
apon his old condemnation f, for having had
eiperience upon a former Trial, they cared not
to run the hazard of a second. Accordingly,
upon Wednesday, the 28th of Oct. 1618, the
Lieutenant of the Tower, in pursuance of a
Writ of Habeas Corpus to him directed, brought
sir Walter Raleigh from the Tower to the
KingVbench bar at Westminster. Wliere
Mr. Attorney (Mr. Henry Yelverton,) spake in
eject thus: My lord*, sir Walter Raleigh, the
prisoner at the bar, was 15 years since, con-
victed of High-Treason, by him committed
^fainst the person of his majesty, and the state

insinuated in the king's Proclamation against
Sir Walter Raleigh, June 11, 1618, which is
extant in 1 Ryra. Foedera, 92.

* 1 Rush. coi. 9.

t See the Order for hit Execution, 1 Rym.
Fo><L 115.

vol. y.

of this kingdom, and then received the Judg-
ment of death to be hanged, drawn, and quar-
tered ; his majesty, of his abundant grace, oath
been pleased to shew mercy upon him 'till
now, that justice calls unto him tor Execution.
Sir Walter hath been a statesman, and a man,
v\ho, in regard of his parts and quality, is to be
pitied : he hath beeu as a star, at which the
Vorld hath gazed; but stars may fall, nay they
must fall, when they trouble the sphere wherein
they ahide. It is therefore his majesty's plea-
sure now to call for Execution of the former
Judgment, and 1 now require order for the same.

'1 hen Mr. Fanshaw, Clerk of the Crown,
read the Record of the Conviction and Judg-
ment, and called to the Prisoner, tn hold np his
hand, which he did. Then was the Prisoner
asked, Whit he could say for himself, why exe-"
cution should not be awarded against turn ?

Sir Walter Raleigh. My lords, my voice is
grown weak, by reason of my late sickness, and
an ague, which I now have ; for 1 was even now
brought hither out of it.

L. C. Justice (sir Edw. Coke). Sir Walter,
your voice is audible enough.

Sir Walter. Then, my lord, all I can say is
this; That the Judgment which 1 received to
die so long since, 1 hope it cannot now be
strained to take away my life ; for that since it
was his majesty's pleasure to grant roc a commis-
sion to proceed in a Voyage beyond the seas,
wherein I had power as marshal, on the lite and
death of others, so, under favour, I presume I
am discharged of that Judgment : for, by that
Commii-sion I departed the land, and undertook
a Journey, to honour my sovereign, and to en-
rich his kingdom with gold, of the ore whereof
tins hand hath found and taken in Guiana ; but
the Voyage, notwithstanding my endeavour, had
no other success, but what was fatal to me, the
loss of my son, and waiting of my whole estate.

Being about to proceed, he was by the L. C.
Justice interrupted, who spake :

L. C. J. Sir Walter Raleigh, this which you
now speak, touching your Voyage, is not to the*
purpose, neither can your Commission any way
help you, by that you are not pardoned ; for by
words of a special nature, in case of treason,
you must be pardoned, and not implicitly.
There was no word tending to Pardon in all
your Commission, and therefore you must say
something else to the purpose ; otherwise, ne
must proceed to give execution.

Sir Waiter Raleigh. If your opinion be so,
my lord, I am satisfied, and so put myself on
the mercy of the king, who I know is gracious ;
and, under favour, I must say I hope he will be
pleased to take commiseration upon me, is
concerning that judgment, which is so long
past, and which, I think, here are some could
witness, nay, his majesty was of opinion, that
I had hard measure therein.

L. C. J. Sir Walter Raleigh, you must re-
member yoursrlf; you had an honourable
Trial, and so were justly convicted; and it were
wisdom in you now to submit yourself, and to
confess your Offence did justly draw upon you

35]

STATE TRIALS, 1 James I. 1603— Trial of Sir Walter Raleigh,

[36

that Judgment which was then pronounced
against you ; wherefore I pray you attend what
1 shall say unto you. I am here called to
grant Execution upon the Judgment given you
15 years since; all which time you have been
as a dead man in the law, and might at any
minute have been cut off, I ut the king in mercy
spared you. You might tbiuk it lienvy, if this
were doue in cold blood, to call you to Execu-
tion, but it is not so ; for new Offences have
stirred up his majesty's justice, to remember to
revive what the law hath formerly cast upon
you. 1 know you have been valiant and wise,
and I doubt not but you retain both tliete vir-
tues, for now vou shall have occasion to u*e
them. Your faith hnth heretofore been ques-
tioned, but I am resolved you are a gocd Chris-
tian ; for your Book, which is an admirable
work, doth testify as much. I would give you
counsel, but I know- you can apply uuto your-
self far better than I am able to give you ; yet
will I,*with the good neighbour in the Gospel,
who finding one in the way, wounded and dis-
tressed, poured oil into his wounds, and refresh-
ed him, I give unto you the oil of comfort ;
though, in respect that I am a minister of the
law, mixed with vinegar. Sorrow will not
avail you in some kind : for, were you pained,
sorrow would not case you ; were you afflicted,
sorrow would not relieve you ; were you tor-
mented, sorrow could not content you ; and
yet, the sorrow for your sins would be an ever-
lasting comfort to vou. You must do as that
valiant captain did, who perceiving himself in
danger, said, in defiance of death ; ' Death,
* thou expectest me, but maugre thy spite, I
' expect thee/ Fear not death too much, nor
fear not death too little : not too much, lest
you fail in your hopes ; not too little, lest you
die presumptuously. And here I must con-
clude w ith my prayers to God for it ; and that
he would have mercy on your soul.- — And so
the L. C. Justice ended with these words :
1 Execution is granted'.

Sir Walter Raleigh. My lord, I desire thus
much favour, that I may not be cut off suddenly;
for 1 have something to do in discliarge of my
conscience, and something to satisfy hismnjestv
in, something to satisfy the world in; and 1
desire I may be heard at the day of my death.
And here I take God to be my judge, before
w horn I shall shortly appear, 1 was never dis-
loyal to his majesty, which I will justify where
L shall not fear the face of any king on earth:
and so I beseech you all to pray for me. •

The Court having awarded Execution, the
Sheriffs of Middlesex were commanded for that
purpose to take him into their custody, who
presently carried him to the Gatehouse. The
following is a Copy of the Warrant for his Exe-
cution :

Dc Warranto speciuli pro dccollullonc Walteri
Ralek.h, militia.

* James, by the grace of God, king of Eng-
1 land, Scotland, France, and Ireland, defender
' of the faith, &c. To our right trusty and well-

beloved Counsellor Frances lord Verulam,
our chancellor of England ; greeting. —
Whereas sir Walter Raleigh, knigbt, late of
the parish of Saint Martin in the Fields, in
the county of Middlesex, with others, hath
been indicted of divers High-Treasons by him
committed against us* and thereupon hath
been tried, and found Guilty of the same, be-
fore our dear cousin and counsellor, Thomas
earl of Suffolk, then Chamberlain of our
Housetibld, Gilbert late earl of Shrewsbury,
Charles late carl of Devon, Henry lord How-'
ard, Robert lord Cecil, of Essingdon, then our
principal Secretary, Edward lord Wotton then
our Comptroller of our Household, and other
our Justices of Oyer and Terminer, at onr
city of Winchester, in our county of South-
ampton, concerning Treasons, and other of-
fences, lately assigned ; which said sir Walter
R deign was, tor the same his Treasons, by
them adjudged to be drawn, hanged, and quar-
tered, according to the laws and customs of
this our realm df England, in that case pro-
vided ; which said Commission, with the said
Judgment, Indictment, and the Trial and pro-
ceedings thereupon, were returned, and do
remain in our said Court of Pleas, before us
to be holdcn ; and although the said sir Wal-
ter Raleigh be adjudged to die as aforesaid ;
yet we, minding to dispense with that manner
of Execution of Judgment, do therefore, by
tliese presents, pardon, remit, and release the
said sir Waiter Raleigh, of and from such Ex-
ecution of his Judgment to be drawn, hanged,
and quartered, as abovesaid, and instead
thereof, our pleasure is to have the head only
of the said sir Walter Raleigh cut off, at, or
within our palace of Westminster, in, or upon
some fit and convenient place, or scaffold, to
be provided in that behalf, and that in such
sort and order, as in such cases have been
heretofore done ; the said Judgment to be
drawn, hanged, and quartered, or any law, or
other thing, or matter, whatsoever, to the
contrary notwithstanding: willing, charging,
and hereby expressly commanding you #ur
said Chancellor, That, upon receipt hereof,
you do forthwith direct, under our great seal
of England, two several Writs, one to the
lieutenant of our Tower of London, or his
deputy there, for the delivery of the said
Walter Raleigh to the sheriff of Middlesex,
at, or within our said palace of Westminster
aforesaid ; and another Writ to the said she-
riff of Middlesex, for the receiving the said
sir Walter Raleigh of and from the hands of
our said Lieutenant, or hi* deputy, and for
the executing of him there, at some fit and con-
venient place, to be there, by our said sheriff,
erected and provided for that purpose, in such
manner and form as in such cases hath here-
tofore been done, or used to be done; and
these presents sliall be your warrant and dis-
charge for the same, against us, our heirs and
successors for ever. Witness our self at
Westminster, the 98th day of October 1618.
Psr Brevt d$ Frivato Sigillo.'

37]

STATE TRIALS, J James I. 1603.— /or High Treason.

[38

Bat all persona have wondered how that old
Sentence, that had lain dormant 16 yean and
upwards against sir Walter, could have been
Biade uie of to take off his head afterwards :
considering the then Lord Chancellor Verulam
cold him positively, (as sir Walter was acquaint-
ing hi in with thut proffer of sir Vr\n. St. Geon
for a Pecuniary Pardon, which might have
been obtained for a lets sum than his Guiana
preparations amounted to) in these words :

* Sir, the knee-timber of your Voyage is Money ;
' spare ^our purse in this particular, fur upon

* my lite you have a sufficient Pardon for all
' tipit is passed already, the king having, under

* his broad-seal, made you admiral of your

* fleet, and «iven you power of the martial law,
1 over the officers and soldiers.'

be esteemed or judged Recttu in curia, and
free from all old convictions. But sir Walter
hath made the best defence for his Guiana ac-
tions, in his letter to his majesty, which is here
inserted.

' May it please your most excellent majesty;
4 In my Journey outward-bound, I had my men
' murdered at the island, and yet spared to take
4 revenge : if I did discharge some Spanish

* barques taken without spoil; if I did forbear
4 all parts of the Spaui*h Indies, wherein I
' might have taken 20 of their towns on the

* sea-coasts, and did only follow the Enterprize
' I undertook for Guiana, where, without any
' directions from me, a Spanish village was
' burnt, which was new set up within three

* miles of the Mine, by your majesty's favour, I
' find no reason why the Spanish Ambassador
4 should complain of me. If it were lawful for
4 the Spaniards to murder 20 Englishmen, bind-
4 ing them back to back, and then cutting their
4 throats, when they had traded with them n

* whole month, and came to them on the land
' without so much as one sword ; and that it
4 may not be lawful for your majesty's subjects,
4 being charged first by tliein, to repel force by
' force ; we may justly say, 0 miserable Eng-
4 lish ! If Parker and Metham took Campench
' and other places in the Honduraes, seated in
1 the heart of the Spanish Indies, burned towns,
4 killed the Spaniards, and had nothing said to
1 them at their return, and myself forbore to
4 look into the Indies because I would not of-
4 fend ; I may justly say, O miserable sir W. Ila-
4 )etgh4 If I spent my poor estate, lost my son,
4 suffered by sickness, and otherwise, a world
4 of miseries; if I have resisted with the mani-
4 Jest hazard of my life, the robberies and spoils
4 which my company would have made; if when
4 I was poor, I might have made myself rich ;
4 if when I had gotten my liberty, which all
' men, and nature itself do so much prize, I vo-
' lontarily lost it; if, when I was- sure of my
' life, I rendered it again ; if I might elsewhere
4 ha\e sold my ship and goods, and put 5 or
' GOpO/. in my pocket, and vet have brought
4 her into England : J beseech your majesty to

' believe, that all this I have done, because it
1 should not be said to your majesty, that your
' majesty had given liberty and trust to a man

* whose end was but the recovery of his liberty,

* and who had betrayed your majesty's trust.
1 My mutineers told me, that if I returned for
' England I should be undone ; but I believed
t in your majesty's goodness, more than in all
' their argumettt*. Sure I am, that I am the

* first that being free, and able to enrich any-

* self, have embraced poverty and peril ; and

* as sure I am, that my example shall maketue
' the last. But your majesty's wisdom and
1 goodness I have made my judge; who have
' ever been, and shall ever be, your majesty's
•" most humble vassal, Walter Raleioii.'

But this Apology, though never so persuasive,
could not satisfy Gondomar's rage, who was re-
solved to sacrifice the only favourite left of
queen Elizabeth, to the Spanish interest : aud
who, as Osburn remarks, was the only person
of Essex's enemies that died lamented ; and the
only man of note left alive, that had helped te
beat the Spaniard iu the year 1588.

Sir Walter Raleigh's Letter to the King the
Right before his Execution.

Tie night before the Execution, sir Walter
wrote the following Letters, the one to the
King, the other to his Wife:

1 The life which I had, most mighty prince,
' the law hath taken from me, and I am now
' but the same earth and dust, out of which I
4 was made. If my offence had any propor-

* Lion with your majesty's mercy, I might de-
4 spnir, or if my deserving had any quantity
' with your majesty's uiuncasurable goodnets*
4 I might yet have hope ; but it is you that

* in us>t judge, and not I. Name, blood, genti-
1 lity, or ebtate, I have none; no not so much
' as a being, no not so much as a vita/n plantax

* I have only a penitent soul in a body of iron,
' which moveth towards the loadstone of death,
' and cannot be withheld from touching ir, ex-
4 cept your majesty's mercy turn the point jo-
' wards me that cxpelleth. Lost I am for hear-
1 ing of vain man, for hearing only, and never

* l>efieving nor accepting : aud so little account
' I made of that speech of his, which was my
' condemnation (as my forsaking him doth truly
' witness) that 1 never remembered any such
' thing, till it was at iny trial objected again*
' me. So did Ir: repay my care, who cared to
( make him good, which I now see no care of
1 man can effect. But God (for my otience t«

* him) hath laid this heavy burden on me, mi-
' serahle aud unfortunate wretch that I am !
' But for not loving you (my sovereign) Go4

* hath not laid this sorrow on me; for he knows

* (with whom I am not in case to lie) that I
4 honoured your innjesty by fame, and loved
' and admired you by kuowledge; so that whe-

* ther I live, or die, your majesty's loving aer-
' vant I will live and die. If now 1 write what
' seems not well-fa veu red, most merciful
4 prince, vouchsafe to ascribe it to the counsel

* of a dead heart, and te a mind that satroir

SO]

STATE TRIALS, 1 James I. 1003.— Trial qf Sir Walter Raleigh,

[40

' hath confounded. But the more my misery

* is, the mote is your majesty's mercy, if you
4 please to' behold ir, and the less 1 can de-
4 serve, the more liberal your majesty's gift

* shall be : heremy you shall only imitate God,

* by giving free life ; and by giving it to such a
4 one, from whom there can be no retribution,
4 but only a desire to pay a lent life with the
4 same great love, which the same great good-
4 ness shall bestow on it. This being the first
4 letter that ever your majesty received from a *
4 dead man: I humbly ;>ubmit myself to the

4 will of God, my supreme lord, and shall wil-
4 ltngly and patiently suffer whatsoever it shall
4 please your majesty to afthct inc withal.

* Walteu Raleigh.'
Sir Walter Raleigii** Letter to hit Wife.
4 You shall now receive, my dear wife, my
last words in these my hist lines. My love 1
send you, that you may keep it when I am
dead; and my counsel, that you may re-
member it wlu n I am no more. I would not
by my Wdl present you with sorrows, dear
Besse, let them go into the grave with me,
and be buried in (he dust. And seeing that
it is not God's will that I should see you any
more in this life, bear it patiently, and with a
heart like thyself. First, 1 send you all the
thanks whicn my heait can conceive, or my
words can rehearse, for your many travails,
and care taken for me; which though they
have not taken effect as you wished, vet my
debt to you is not the less; but pay it \ never
shall in this world. Secondly, I beseech you,
for the love you bare me living, do not hide
yourself many days, but by your travels seek
to help your miserable fortunes, and the right
of your poor child. Thy mourning cannot
avail me, I am but dust. Thirdly, you shall
understand that my laud was conveyed bona
fide to my child : the Writings were drawn at
Midsummer was Vi month?, my honest cousin
Breit can testify so much, and Doiberry too
can remember somewhat therein. And I
•rust my blood will quench their malice that
have nuellv murdered me, and that they will
not s<-ck .'.I so to kill thee and thine with ex-
treme poverty. To what fiiend to direct thee
I know not, for all mine have, left me in the
true time of trial. And I perceive that my
de.it i was determined fro.n the first day.
Most sorry I am, God knows, that being thus
surprised with death 1 ran Irave you in no
better estate. God is my witness, I meant
you all my other of wines, or all th:it I could
have purchased by selling ir, half inv stuff,
and all my jewels, but some one for the boy;
but God hath prevented all toy resolutions,
that great God that rulcth ail in all : but if
you can live free from w.tnt, care for no move,
the rest is but vanity. Love God, and begin
betimes to repose yourself upon him, and
therein shall you find true and lasting riches,
and endless comfort : tor the rest, when you
have travelled and wearied vour thoughts
over all sorts of worldly cogitation?, you shall
but tit down by sorrow in the end. Teach

4 your son also to love and fear God whilst ho
4 is yet young, that the fear of God may grow

* with him; and then God will be a husband

* to you, and a father to him; a husband and
4 a father which cannot be taken from you*
4 Buily oweth me 200/. and Adrian COO/, in
4 Jersey. I aho have much owing me besides.
4 The arrearages of the wines will pay your
4 debts. And howsoever you do, for my soul's
4 sake, pay all poor men. When I am gone, no
4 doubt you shall be sought to, for the world
4 thinks that I was tery rich. But take heed

* of the pietcnces of men, and their affections,
4 for they last not but in honest and worthy
4 men ; and no greater misery can be fa I you in
4 this life than to become a prey, and after-
' wards to be despised. I speak not this, God
4 knows, to dissuade you from marriage, for ic
4 will be best for you both in respect of the
4 world and of God. As fur me, 1 am no more
4 yours, nor you mine, death hath cut ns
4 asunder ; and God hath divided me from the
4 world, and you from me. Remember your
4 poor child tor his father's sake, who chose
4 you, and loved you in his happiest times. Get
4 those Letters, if it he possible, which I writ
4 to the lords, wherein I sued for life : God is
4 my witness, it was for you and yours that I
4 desired life; but it is true that [disdained
4 myself for begging of it : for know it, my dear
4 wife, that your sou is the son of a true man,
4 and who, in his own respect, despiseth death,
4 and all his misshapen and ualy forms. I
4 cannot write much, God he knows how hardly
4 I steal this time while others sleep, and it is
4 also time that I should separate my thoughts
4 from the world. Reg my dead body, which
4 living was denied thee ; and either lay it at
4 Sherburne (and if the land continue) or in
4 Exeter church by my father and mother. I
4 can say no more, Time and Death call me
4 away; the everlasting, powerful, iutinite, and
4 omnipotent God, (hat Almighty God, who is
4 goodness itself, the true life and true light,
4 keep thee and thine, have mercy on me, and
4 teach me to forgive my persecutors and accu-
4 sers, and send us to meet in his glorious king-
4 dom. My dear wife, farewell. Bless my
4 poor boy. Pray for me, and let my good ( »od
4 hold you both in his anus. Written with the
4 dying hand of sometime thy husband, but
4 now alas overthrown. Walter Rallich."

His Execution.
Upon Thursday the 29th of Oct. 16W, >jr
Walter Raleigh whs conveyed by the Sheriffs of
London to a scaffold in the Old Palace- Yard
at Westminster, about 9 in the morning of the
same day. Whereupon, when he CHine, with a
chearful countenance he saluted the lords,
knights, and gentlemen thcie present. After
which, a Proclamation was made for silence,
and he addressed himself to speak in this man-
ner, * I desire to be home withal, for this is
4 the third day of my lerer ; and if I shall sliew
4 any weakness, I beseech you to attribute it to
4 my malady, for this is the hour in which it is
4 wont to come/

' A

♦1]

STATE TRIALS, i James I. 10O3.-^br High Treason.

[\'2

Then pausing a while, he sat, and directed
himself towards a window, where the lords of
Arundel, Northampton, and Doncaster, with
some other lords and knights, sate, and spake
a* folio .veth: • I thank God, of his infinite

* goodness, that he hath brought me to die in
1 tlie light, and not in darkness ;' (but by reason
that the place where the lords, &c. sat, was
vrnie distance from the scaffold, that he per-
cwred they could not well hear him, he said)

* I will strain my voice, for I would willingly
' have your honours hear me.'

But my lord of Arundel said, Nay, we will
n*her come down to the scaffold; which he
and tome others did. Where being come, he
saluted them severally, and then began again
to speak as followeth, vit.

' As I said, I thank God heartily, that he
' hath brought me into the light to die, and
( that he hath not suffered me to die in the dark
4 prison of the TGwer, where I have suffered a
4 sreat deal of misery and cruel sickness ; and I
4 thank God that my fever hath not taken me
1 *t this time, as I prayed to God it might not.
' — "I here are two main points of Suspicion that
' hi* majesty, as I hear, hath conceived against

• me. To rev>lve your lordships wherein his

< majesty cannot be satisfied, which I desire to
« clear, and to resolve your lordships of: One

< i«, Thnt his majesty hath been informed that

• I have often had Plots with France, and his
; majesty had good reason to induce him there-

• unto. One Reason that his majesty had to
• « 'Mijectnre so was, that when I came back

• train Guiana, being come to Plymouth, I en-

• tb-atoured to go in a bark to Rochel, which

• »»\ for tliat I would have made my peace
'before I had come to England. Another

• reason was, That upon my flight, I did intend
1 |o fly info France, for the saving of myself,
4 feting had some terror from above. A third
« rea*m, that his majesty had reason to suspect,
4 was the French agent's coming to me ; be-
1 tides, it was reported that I had a Commis-
4 «■« from the French kins at my going forth :
•These are the Reasons that his majesty had,
'us I am informed, to suspect me. — But (his I
' **rv for a man to call God to witness to a
■ fahhood at the hour of death, is far more
4 pievou* and impious, and that a man that so

• (tab cannot have salvation, for he hath no

I uuie »f repentance ; then what shall I expect,
' that am going instantly to render up my ac-
4 '-'itifit f I do therefore call God to witness, as

I I hope to be saved, and as I hope to see him
4 -n his kiiiiT'lom, which I hope 1 shall within

• t^» quartt r of an hour, I never had any Com-
4 mttvon from the French king, nor never saw
4 the French king's hand-writing in all my life ;

• neither knew I that there was a French Agent,
4 nor what he was, till I met him in my gallery

I ■ at my lodging unlooked for : If I speak not
' trot, O lord ! let me never enter into thy
1 kingdom. — The second Suspicion was, That

• bs majesty had been informed, thnt I should
1 "peak dishonourably and disloyally of my
1 Kwereign ; but my Accuser was abase French-

man, and runnagate'fe How, one that hath nor
dwelling, a kind of a chymical fellow, one that
I knew to be perfidious; for being by him
drawn into the action of fearing myself !at
Winchester, in which I confess my hand was
toucht, he being sworn to secrecy over-night,"
revealed it the next morning. — But this I
speak now, what have I to do with kings ? I
have nothing to do with them, neither do I
fear them ; I have only now to do with my
God, in whose presence 1 stand ; therefore to
tell a lye, were it to gain the king's favour,
were vain : Therefore, as I hope to be saved
at the last Judgment-day, I never spoke dis-
honourably, riisloyajly, or dishonestly of hit
majesty in all my life ; and therefore I cannot
but think it strange that that Frenchman, be-
ing so base and mean a fellow, should be so
far credited as he hath been. — I have dealt
truly, as 1 hope to be saved, and I hope I shall
be believed; I confess I did attempt to
escape, 1 cannot excuse it, but it was only to
save my life. — And I do likewise confess,
that I did feign myself to be ill-disposed and
sick at Salisbury ; but I hope it was no sin, for
the prophet David did make himself a fool, and
suifered spittle to full down upon his beard, to
escape from the hands of his enemies, and it
was not imputed unto him : So, what I did, I
intended no ill, but to gain and prolong time
till his majesty came, hoping for some com-
miseration from Rim. — Rut I forgive this '
Frenchman and sir Lewis Steuklev, with all '
mv heart, for I have received the Sacrament
this morning of Mr. Dean of Westminster,
and I have forgiven all men ; but that they
are perfidious, I am bound in charity to speak,
that all men may take heed of them. — Sir
Lewis Steuklev, my keeper and kinsman,
hath affirmed that I should tell him, that my
lord Carew, and my lord of Doncaster here,
did advise me to escape; but I protest before
God, I never told him any such thing, neither
did the lords advise me to any such matter,
neither is it likely that I should tell him any
such thing of two privy counsellors; neither
lind I any reason to tell him or he to report
it ; for it is well known he left me 6, 7, 8, 9,
and 10 days together alone, to go whither I
listed, whilst he rode himself about the coun-
try.— He further accused inc, that I should
shew him a Letter, whereby I did signify unto
him that I would give him 10,000/. for my
Escape ; hut God cast my soul into everlast-
ing fire, if I made any such prolfer of 10,000/.
or 1000/. but indeed I shewed him a Letter,
that if he would go with me, there should be
order taken for his- Debts when he was gone;
neither had I iO-,000/. to give him ; for if 1 had
had so much I could have made my peace bet*
ter with it other way, than in giving it to Steuk-
lev.— Further, When I came to sir Edw. Pel-
ham's house, who had been a follower of
mine, and who gave me good entertainment ;
he gave out that 1 had there received some
dram of poison, when I answered him that I
feared no such thing, for 1 was well assured

43]

STATE TRIALS, 1 James I. 1603.— Trial <f Sir Walter Raleigh,

[44

' of them in the house, and therefore wisht him
' to have no such thought. Now God forgive
' him, for I do, and 1 desire God to forgive
' him : I will not only say, God is a God of

* Revenge ; but I desire God, to forgive him,
4 as I do desire to be forgiven of God.'

Then looking over his note of remembrance,

* Well, said he, thus far I have gone; a little

* more, a little more, and I will nave done by

* and by. — It was told the king that I was brought

* per force into England, and that I did not m-
,' tend to come again ; but sir C. Parker, Mr.

' Tresham, Mr. Leake, and divers know how
' I was dealt withal by the common soldiers,
4 which were 150 iu number, who mutinied,
' and sent for me to come into the ship to
< them, for unto me they would not come, and
4 there I was forced to take an Oath that I
' would not go into England till ttiat they would
4 have me ; otherwise they would have cast me
' into the sea, and therewithal they drove me
' into my cabbin, and bent all their forces
' against me. — Now after I have taken this

* Oath, with wine and other things such as I
4 had about me, I drew some of the chiefest to
4 desist from their purposes ; and at length I

* persuaded them to go into Ireland, which
4 they were willing unto, and would have gone
' into the North parts of Ireland, which I dis-
4 suaded them from, and told them that they

* were Red-Shankes that inhabited there : and
« with much ado I persuaded them to go into

* the south parts of Ireland, promising them
4 to get their pardons, and was forced to give
' them 125/. at Kinsalc, to bring them home,
4 otherwise I had never got from them. — I hear

* likewise there was a report that I meant not
4 to go to Guiana at nil, and that I knew not

* of any Mine, nor intended any such thing or
' matter, but only to get my liberty, which I
' had not the wit to keep. Rut 1 protest it
' was my full intent, and for Gold ; lor Gold,
4 for the benefit of his majesty and myself, and
' of those that ventured and went with mc,
' with the rest of my countrymen : but he I hat
4 knew the head of the Mine would not disco-
4 rer it, when he saw my son was slain, but
1 made away himself." And then turning to
the earl of Arundel, be said, ' My Lord, being
' in the gallery of my ship, at my departure, I
' remember your honour took me by die hand,

* and said, You would request one thing of me,

* which was. That whether I made a good

* voyage or a bad, I should not fail, but to
4 rtturu again into England ; which I then pro-

* miscd you, and gave you my faith I would;
- and so I have.'

To which my Lord answered, and said, Tt is
true I do very well remember it, they were the
very last word) I spnkc unto you.

* Another slander was raised of me, That I
' would hare gone away from them, and left
4 them at Guiana. But there were a great

* many worthy men that accompanied me nl-
4 ways ; as my sen. major, George Raleigh, and

* divers others, which knew my intent was no-

* thing to.— 'Another opinion was held of mc,

( that I -carried with mc to sea 16,000 pieces,
' and that was alt the Voyage I intended, only
' to get money into my bunds. As I shall an-
' swer it before God, 1 hud not in all the world
1 in my bands, or others to my use, either di-
( rectly or indirectly, above a 100/., whereof
4 wheo I went I gave my wife 'lol. thereof;
' but the error thereof came, as I perceived, by
' looking over .the Scrivener's Books, where
1 they found the Bills of Adventure arising to a
' great sum, and so raised that false report. — On-
' ly I will borrow a little time of Mr. Sheriffs to
' speak of one thing, that doth make my heart
' to bleed to hear that such an imputation
' should \ye laid upon me; for it is said, that I
4 should be a persecutor of the death of the
' earl of E«sex, and that I stood in a window
' over-against him when he suffered, and puffed
' out tobacco in disdain of him. God I take to
1 witness, I shed tears for him when he died ;
4 and as I hope to look God in the face hereaf-
' ter, my lord of Es«ex did not see my face when
' he suffered, for I was afar off in the Armory,
' where I saw him, but he saw not me. — I
( confess indeed 1 was of a contrary faction,
1 but, I know my lord of Essex waa a noble
' gentleman, and that it would be worse with
' me when he was gone ; for I cot the hate
' of those which wished me well before, and
1 those that set me against him, afterwards
1 set themselves against me, and were my great-
' est enemies, and my soul hath many times been
' grieved that I was not nearer him when he died ;
1 because, as I understood afterwards, that lie
' asked for me at his death, to have been recon-
' ciled unto me. — And these be the material
' points I thought good to speak of, and I am
' now at this instant to render up an account to
' God ; nnd I protest, as I shall appear before
* him, this that I have spoken is true, and I hope
' I shall be believed.'

'Then a Proclamation being made, that all
men should depart the scaffold, he prejmred
himself for death ; giving away his hat, his cap,
with some money, to such as he knew, that
stood near him. And then taking his leave of
the lords, knights, gentlemen, and others of his
acquaintance, and amongst the rest, taking his
leave of my lord of Arundel, he thanked him for
his company, and intreated him to desire the
king that no scandalous Writing to defame hi in
might be published after his death ; sayiug fur-
ther unto him, I have a long journey to go, and
therefore I will take my leave. — And then put-
ting off his doublet and gown, desired the heads-
man to shew him the ax ; which not being sud-
denly granted unto him, he said, I prithe«,let
me see it, dost thou think that I am afraid of
it ? So it l>eing given unto him, he felt along
upon the edge of it, and smiling, spake unto
Air. Sheriff, saying, * This is a sharp medicine,
but. it is a physician that will cure till diseases.9

Then going to nnd fro upon the scaffold on
every side, he intreated the company to pray to*
God to give him strength.

Then having ended his Speech, the execu-
tioner kneeled down end asked him forgiveness;

«1

STATE TRIALS, 1 James I. 1 60S.— /or High Treason*

l-M

the which laying his hand upon his shoulder he
forgave him. Then being asked which way lie
would lay himself on the block, lie made nuswer
and said, So the lieort be straight, it is no mut-
ter which way the head lieth: So laying his
head on die block, his face being towards the
east, tlie headsman throwing down his own
cloak, because he would not spoil the prisoner's
gowo, he giving the headsman a sign when he
should strike, by lifting up his hands, the Exe-
cutioner struck off his head at two blows, his
body never shrinking nor moving. U is head
was shewed on each side of the scaffold, and
then put into a red leather bag, and his wrought
velvet gown thrown over it, which was after-
wards conveyed away in a mourning coach of
his lady's.— He was 66 years old.

u This Conspiracy of sir Walter Raleigh's,"
writes Bishop Kennett in a note to Wilson's
Life of James the first, " is variously represent-
ed by the Historians and Writers of that time,
but acknowledged by all of them to have been
a Riddle of State. I liave seen most of the Ac-
counts that have been published on this sub-
ject ; and from them and from some sheets of
Cecil earl of Salisbury, and a Manuscript of one
Buck, who it seems was secretary to Chancellor
Egerton, I take the case to have been this : —
The earl of Salisbury and sir Wulter Raleigh had
been open and declared enemies of the unhappy
earl of Essex, and the chief promoters of his ruin :
Though king James could easily digest the death
of queen Mary Stuart his mother, it is noto-
riously known he nerer heartily forgave any of
Essex's enemies; which both Cecil and Raleigh
were aware of, but took contrary measures to
avoid his resentment. Raleigh trusting in the
justice of his procedure in that affair, made no
steps towards the making his peace with her
successor, contenting himself with the favour of
that mistress who raised hiiu, which he enjoyed
to her death. On the contrary, Cecil, by ilie
mediation of Hume, that was afterwards earl of
Dunbar, had been long before entirely recon-
ciled to king James, had done him important
services, and kept a correspondence with him,
while queen Elizabeth was alive. — When king
Janes came into England, Cecil was not only

continued in his places, but, contrary to all
men's expectations, was indeed made the first
minister of state, and Raleigh neglected. The
latter knowing the former to be at least equally
concerned with him in the fall of Essex, his
great mind could not bear the distinction made
between them by their new master ; and the
rather, that Cecil acted the courtier, in frown-
ing upon his old friend and acquaintance, and
giving him fresh mortifications upon every occa-
sion. In Buck's Manuscript there is mentioned
a Memorial of Raleigh's to king James, where-
in hte reflects heavily upon Cecil in the matter
of Essex, and vindicating himself, throws the
whole blame upon the other. At the end of
that Memorial, he lays open the conduct of
Cecil and his father the lord Burleigh, in the
matter of queen Mary Stuart, and, with a sin-
gular bitterness of style, not only vindicates the
memory of queen Elizabeth, but lays the death
of that unfortunate queen chiefly at the door of
Cecil and his father ; for which he appeals to
Davison, then in prison, the man that had dis-
patched the Warrant for her Execution, con-
trary to queen Elizabeth's express command.
All this had no influence on king James, and
irritated Cecil the more against Raleigh; which
helped to sour a temper that of itself was impa-
tient of injuries, and for all his other excellent
qualities, was not fitted for this reverse of for-
tune.— This^brought him into the acquaintance
and familiarity of other men, as discontented
as himself, though of different religions and in-
terests; and occasioned probably more dis-
courses than one, of having recourse to foreign
powers- to mend their present fortunes. It is
also not unlikely, that the lady Arabella's name'
might, upon these occasions, be mentioned by
sir Walter Raleigh, as one that had a near title
to the crown : but that he ever entered into
any form or design of altering the established
religion, (as was said at his Trial) no body then
nor since did ever believe."

The eminent merits, high reputation, and un-
common fate of sir Walter Raleigh, together
with the obscurity of the transactions con-
cerning lum, will justify the insertion of the
following Articles which tlirow light on his in-
teresting story :

Two Letters of Sir Dudley Carleton (afterwards Viscount Dorchester) concerning
Sir Walter Raleigh's Plot ; inclosed in the following Letter from Mr. Dudley
Carleton to Philip Lord Wharton.

[Extracted from the Hardwicke State Papers, vol. 1. p. 377.]

MY noble lord ; The two letters inclosed are
those, of which, when I told your lordship, you
shewed yourself very desirous to hare sight and
therefore I have sent them to you. That Dud-
ley Carleton, whose name you will find sub-
scribed to them, was my uncle, who died secre-
tary to bis late majesty, who had likewise ho-
noured him with the title of viscount Dorches-
ter; and I suppose too knew him. He was, ai
tbttnaehe wrote them, secretary to my lord

of Northumberland's father, and both an ear
and eye witness of most that passed in the Ar-
raignment and Execution at Winchester, in
anno 1603. I wish they may serve your Lord-
ship to such use as you desire ; and if I could
give you any farther light, I should be most
ready to serve you, as being your Lordship's,
&c. Dudley Carleton

•* London, •
Feb. 14th, 1651.

47]

St ATE TRIALS, 1 James I. 1003.— Trial qf Sir Walter Raleigh,

[4»

Sir Dudley Carleton, to Mr. John Chamber-
lain.

Sir; I was taking care .how to send unto
you, and little looked for so e;ood a mems as
your man, who came to me this morning ; and
though he would in all haste he gone, I have
stayed him this night, to have time to discourse
unto you these tragical Proceedings. I was
not present at the first or second Arraignment,
wherein Brooke, Mark ham, Brookes by, Copley,
and the two Priests were condemoed, tor prac-
tising the surprize of the king's Person,* the
taking of the Tower, the deposing of Counsel-
lors, and proclaiming Liberty of Religion.
They were ail condemned upon their own Con-
fessions, which were set down under their own
bands, as Declarations ; and compiled with
such labour and care, to make the matter they
undertook seem very feasible, as if they had
feared they should not say enough to hang
themselves. Pirra was acquitted, being only
drawn in by the priests as an assistant, without
knowing the purpose ; yet had be gone the
same way as the rest (as it is thought), save
for a word the lord Cecil cast in the way as his
cause was in handling, That the king's glory
consisted as much in freeing the innocent, as
condemning the guilty.

The Commissioners for this Trial were, the
Lord Chamberlain, lord of Devon, lord Henry
Howard, lord Cecil, lord Wottou, the Vice
Chamberlain, the two Chief Justices, J us r ice
Gawdy, and Warburton. Of the King's Coun-
cil, none were employed in that, or the arraign-
ment, but the Attorney (Coke,) Ileale, and
Philips; and in effect, none but the Attorney.
Sir Walter Raleigh served for a whole act, and
played all the parts himself. His cause was
disjoined from the Priests, as being a practice
ouly between himself and the lord Cobhani,* to
have brought in the Spaniard, to have raised
Rebellion iu the realm, by fastening money
Upon discontents, to have set up the lady Ara-
bella, and to have tied her to certain condi-
tions ; as to have a perpetual peace with
Spain ; not to ha\e bestowed herself in mar-
riage but at the direction of the Spaniard ; nnd
to have granted Liberty of Religion. The Evi-
dence against him, was only Cobham*s Confes-
sion, which was judged sufficient to condemn
him ; ami a Letter ,was produced, written by
Cobhani the day before, by which he accused
Ralegh as the first pracri^er of the Treason l»e-
twixt them : which served to turn ngaiusi him;
though he shewed, to countervail this, a Letter
written by Cobhani, and delivered to him in
the Tower, by which he was clearly acquitted.
After Sentence given, his request was, to have
his Answers related to the king, and pardon
begged; of which, if there were no hope, then
that Cobham might die first. He answered
with that temper, wir, learning, courage and
judgment, thut save that it went with the hazard

* It does not appear whut proceedings had
be%U had against Cobham.

of his life, it was the happiest day that ever he
spent. And so well he shifted all advantages
that were taken against him, that were not
fama malum graviui qu&rn res, and an ill name
naif hanged, in the opinion of all men, he had
been acquitted. — The two' first that brought the
news to the king, were Roger Ash ton and a
Scotchman; whereof one affirmed, That never
any man spoke so well in times past, nor would
do in the world to come ; and the other said,
That whereas wheu he saw liiin first, he was so
led with the common hatred, that he would have
gone a hundred miles to have seen him lianged,
he would, ere he parted, have gone a thousand
to have saved his life. In one word, never was
man so hated, and so popular, iu so short a
time. It was thought the lords should have
been arraigned on Tuesday lust, but they were
put off till Friday and Saturday ; and had their
trials apart before the Lord Chancellor (Elles-
mere, as Lord Steward for both those days),
- eleven earls, nineteen barons. The duke*, the
earl of Marr, and many Scotish lords, stood as
spectators ; and of our ladies, the greatest part,
as the lady Nottingham, the lady Suffolk, and
the lady Arabella, who heard herself much
spoken of these days. But, the arraignment
before, she was more particularly remembered,
as by sir Waiter Raleigh, for a woman, with
whom he had no acquaintance, and one, whom,
of all that he ever saw, he never liked ; and by
Serj. Hale, as one that had no more right to the
crown than himself ; and for any claim that he
had to it, he utterly disavowed it. Cobha.n led
the way on Friday, and made such a fasting
day's piece of work of it, that he discredited
the place to which he was called ; nrver was-
seen so poor and abject a spirit. He heard his
indictment with much fear aud trembling, and
would sometimes interrupt it, by forswearing
what he thought to be wroi g)y inserted ; so as,
by his fashion, it was known ere he spake, what
he would confess or den v. Iu his first answer,
he snid, he had changed his mind since he came
to the bar ; for whereas he came with an inten-
tion to have made his confession, without deny-
ing any thing, now seeing many things inserted
in this indiciinent with which he could not be
i charged, being not able in one word to make
! distinction of many parts, he must plead to all
! not guilty. For any thing that belonged to the
■ lady Arabella, hedeuied the whole accusation;

• only said, she had sought his ii ieudship, and

• his brother Brooke had sought Iter's. For the
! other purposes, he said, he had hammered in his
! brains some such imaginations : but never had

purpose to bring them to effect. Upon Ra-
leigh, he exclaimed as one who had stirred him
\ up to discontent, and thereby overthrown his
; fortunes. Against liim he said, that he had
| once pro|KHinded to him a means for the Spa-
j niard to invade England, which was, to bring
I down an army to the Groyne, under pretence
! to send them into the Low Countries, and land
' them at Milford Haven : that lie had made

* Of Lenox, then (lie only one of that degree*

40]

STATE TRIALS, 1 James I. 1603.— /or High Treason.

[50

himself a pensioner to Spain tor 1500 crowns I seemed) have dispensed with their consciences

1ft • • i I * m ^ • • la*/* * 1

by the year, to give intelligence ; anc , for an
earnest of his diligence, had already related
to the Count D'Axemberg, the particularities
of what passed in the states audiences at Green-
wich. His brother's confession was read
against him, wherein be accused him of a con-
tract made with Aremberg for 500,000 crowns
to bestow amongst discontents, whereof Raleigh
wa* to have had 10,000, Grey as much, and
Brooke 1000 ; the re»t, ns they should tind fit
■en to bestow it on. He excepted against his
brother as an incompetent accuser, baptizing
Lua with the name of a viper; and laid to his
charge (though far from the purpose) the getting
vi his wife's sister with child ; in which it is
thought he did young Coppinger some wrong.

A letter was produced which he wrote to
Aremberg's for so much money: and Arem-
berg** answer, consenting for the furnishing of
that sum. He then flew to his former retreat,
that in this likewise he had no ill meaning, and
cicused Aremberg as one that meant only
thereby to further the peace. When particu-
larities were farther urged, that, in his intended
travel, he meant to have gone into the Low
Countries to the archduke; from thence into
Savoy : so into Spain ; then have returned by
Jersey ; and there to have met lialeigh, and to
have brought some money from the well-spring
»hcre it was to be hud, ho confessed imagina-
tions, but no purposes , and still hud the fault
oprn hi? own weaknesses, in that lie suffered
kuiMrlf to be misled by lialeigh. Being asked
of his two letters to different purposes, the one
excusing, the other condemning; Kaleigh ; he
feud, i lie last was true, but the other was drawn
fruui him by device in the Tower, by young
ILrvty the lieutenant's sou, whom Raleigh
had corrupted, and carried intelligence betwixt
tkem (fur which he is there committed, and is
likely to be arraigned at the Kiug's-bcnch).
hating thus accused all his fiicmJs, and so
little excused himself, the peers were not long
ia deliberation what tojud^e; and after sen-
tence of condemnation given, he begged a
freat while for life and favour, alleging his con-
fession a* a meritorious act. Grey, quite in
another key, began with great assurances and
aJauity: spake a long and eloqm nt speech,
first to the lords, and then to tl»e judges, and
h»ti) to the king's council ; and told them well
of their charges, and spake effectually for him-
self. He he Id tlium the whole day, from ei^ht
ia the morning till eight at night, in subtle tru-
iei>es an i scapes ; but the evidence was too
perspicuous, both by BruokeV and ~\!uikham's
r-'jhteskioii*, that h- w;.s acquainted with the
lurprtte;* Vet the lord** were lonjj ere they
CHiidali agree, ami loth to ci.iue out with bo
hirdceueurc aeniji*t him. For though he had

to have shewed him favour. At the pronounc-
ing of the opinion of the lords, and the de-
mand whether he had any thing to .sny why
sentence of death should u-.»t he given against
him, these only were his words, " 1 have no-
ting to say;' there he paused long; '.' and yet
a word of Tacitus comes in my mind, fifon
eadem omnibus decora : the house of the Wil-
tons had spent many lives in their prince's ser-
vice, and Grey cannot beg his. God send the
king a long and prosperous reign, and to your
lord si up* all honour."

After sentence given, he only desired to have
one Travers,* a divine, sent for to come to
him, if he might live two days. If he were to
die before that, then he might have one Field,
whom he thought to be near. There was
great compassion had of this gallant young
lord ; for so clear and fiery a spirit had not
been seen by any that had been present at like
trials. Yet the Lord Steward condemned his
manner much, terming it Lucifer's pride, and

fireached much humiliation ; and the judges
iked him as little, because he disputed with
them against their laws. We cannot yet judge
what will become of him or the rest ; for all
are not like to go one way. Cobham is of the
surest side, for he is thought least dangerous,
and the lord Cecil undertakes to be his friend.
They say the priests shall lead the dnnce to-'
morrow; and iirooke next after : for he proves
to be the knot that tied together the three con-
spiracies ; the rest hang indifferent betwixt
mercy and ju>ticc, wherein the king hath now
subject to practise himself. The lords are most
of them returned to the court. The Lord
Chancellor und Treasurer remain here tdl
Tuesday, to bhnt up the term. My lord goetli
from her.ee to I'rt worth ; but I pick quarrel to
stay behind, to «»ee an end of these matter*.
I do call to n.ind a pretty secret, that the
lady of P< -iiibioke hath written to her son Philip,
and charged him, of nil her blessings, to em-
ploy his own credit, his friends, and all he can
(\of for Its high's pardon : and though she does
little good, u-t she :.- to be commended for do-
ing her hot, in shewing ve teria ve$t't»ia tlan,m<r.
And thus being como round where 1 began, it
is time to ljave- you, de.-iring you to excuse me
to my ciuhu sir Him land Litton, for not writ-
ing; ami m» yuu we'd may, for \ou have enough
for yourself and all my kindred and friends, to
make you alt weary. Sir \V:-l»er Cope \*> in
tliii town, and sir Hugh Bv>ti*-n likewise,
who often asks for voii as Your friend, and
then lore v.^u arc the more to lament that he
is niitime!\ come to a night-cup. Many marvel
at his sudden hr-.».»kiiii:, but most ascribe it to

sithiH' r!:t W* took a1 a word which sir Walter
Ituleijili spoke ;.t hi> examinations : who asked

lonu heavy enenu<>, as his old antagonist, wl.o i if sir Uui-h IitM-.n w.isii'rt apprehended and

tortured, h- coi.-c In* was always of his chiefesC
council. 1 -hall ne\er end, unless I abruptly
hi. I vim fs-rewi-l. From \\ mcluMer, the 27th

<l A Puritan, the antagonist of Hooker,

was uiuie bi-tuiv his face, hut spake within j
terv nnnobly against him ; yet mo>l of them
itrote with themselves,' and would fain (us it

P Of the court.

ma. m

51]

STATE TRIALS, 1 James I. 1 COS.— IVial of Sir Walter Raleigh,

[53

of November, 1GU3. Your's, &c. Dldlly
La.rlf.tok.*

The Same to the Same.

Sir : I know not when or bow to send to von ;
yet here happening an accident worth your
knowledge, 1 cannot but put it in record whilst
tlie memory of it is fres.h ; and tor the rest,
*tu:»d to the venture, ihit because 1 have
taken a time of good leisure. and it is likely
this letter will take his leisure, ere it come at

tory denial. The bishop of Chichester had
soon done what, he came tor, finding in Cobham
a willingness to die, and readiness to die well;
with purpose at his death to affirm as much as
he had said against Raleigh; but the other
bishop had more to do with his charge; for
though, for his conscience, he found him well
settled, and resolved to die a Christian and a
good Protectant, for the point or' confession, he
found hitn so strait-laced, that he would yield
to no p:ut of Cobhnm's accusation; only, the

I

,'ou; I may as well leap in where I left, when ] pension, he said, was once mentioned, but

wrote to you by your man, and proceed in an
order by mrration- ; since this was a part of
the same play, and that other nets came be-
twixt, to make up a tragical comedy.

The two priests that led the way to the exe-
cution, were very bloodily handled ; for they
were both cut down alive; and Clarke, to
whom more'favour was intended, had the worse
Luck ; for he both strove to help himself, and
spake after he was cut down. They died
boldly both ; and Watson (as he would have it
seem) willing : wishing he had more lives to
spend, and on** to lose, for every man he had
bv his treachery drawn into tliis treason. Clarke
stood sojntv.ti.it upon his justification, and
thought he had hard measure: but imputed it
to his function, and therefore thought Jus death
meritorious, as a kind of martyrdom. Their
quarters were set on Winchester gates, and
their heads on the first Tower of the castle.
Brooke was beheaded in the castle-yard, on
Monday last; and to double his grief, hid Sr.
Croft es in hi* sight, from the Lcau'ohl, which
drove him first to discontent*. There was no
greater assembly than I h«i\e seen at ordinary
executions; nor no man of miality more than
the lord of Arundel and young Somerset; only
the biihop of Chichester who was sent from the
court two days before, to prepare him to his
end, could not get loo.-^e from him; but, by
Brooke's earnest entreaty was- fain to accom-
pany him to the scaffold, and serve for his
ghostly father, lie died coi^tantly (and, to
terming, religiously) ; spake not much ; hut
v liar he said was well and assured. He did
somewhat extenuate his oitences, both in the
treasons, and the course of his life; naming
rhese rather errors than capital crimes ; and his
former faults, sins; but not so heinous as thev
were traduced ; which he referred to the God
of truth and time to discover ; and so left it, as
it* somewhat lay yet hid, which would one day
appear for his justification. The bishop went
from him to the lord Cobham : and at the same
lime, the bishop of Winchester was with lta-
lcigh: both by express order from the kinc ; us
well to pn-paie them for their ends, as likewise
to bring them to liberal confc^iosn, and by
that means reconcile the roiitiadictimis of the
one's open nrciivuliiiu, and the other's peremp-

* This Letter contains otiier matter, which
i* not here inserted a> having no relation to
Raleigh or his associates.

t Missing, I suppose, the mastership.

never proceeded in. Grey in the mean time,
with his minister Field, having had the like
summons for death, spent his time in great de*
votions; hut with that careless regard of that
with winch he was threatened, that he was ob-
served neither to eat or sleep the worse, or
be any ways distracted from his accustomed
fashions. Markh.un was told he should like*
wise die: but by secret message from soma
friends at court, had still such hope given him,
that he would not believe the worst news till
the last day ; and though he could be content
to talk with the pieacher which was assigned
him, it was rather to pass time, than for any
good purpose; for he was catholicly disposed;
to think of death no way disposed. Whilst
these men were so occupied ut Winchester,
there was no small doings about them at court,
for life or death; some pushing at the wheel
one way, some another. The lords of the
council joined in opinion and advice to die
king, now in the beginning of his reign to shew
as well examples ot mercy as seventy, and to
i»a:n the tit:e of Clemens, us well as Justus;
hut some other.*, h-d by their private spleen and
pa&sinns, drew :m hard the other way; and
Patrick Galloway, in his sermon on Tuesday,
preached so hotly against remissness and mode-
ration of justice, in the head of justice, us if it
were one of the seven deadly sins. The king
field hiimcif upriuht betwixt two waters: and
first let the lords know, that since the law had
passed upon the prisoners, and that they ihcm-
sehes had been their judges it became not
them to be petitioner* lnr ih.it, but rather to
press for execution of their own ordinances;
and to others, gave as pood reasons, to let them
know that he would go no whit the faster for
their driving; hut would be led as his own
judgment and utl'eclious would mo\e him ; but
seemed rather to lean to this side than the
other, bv the care he took to have the law take
h'b coi.r.-e, and tl.e execution lifted.

Warrants v. ere signed, and sent to sir Benja-
min T.chLornv, on Wednesday last at night, tor
Ah.iklam, Grey, and Cohham, who in thin
ord« r were to take their turns, as yesterday,
heiiii: l'ridav, aboi:t ten ofthe chick. A fouler
day could ba«dl\ have bven picked out, or
lifter ii«r such a tr::'::--dy. .Mark ham being
bio'.i'jhl to the Muii'oM, was much dismayed,
imd t'uiiipLiii.i d much of his hard hap, to be
deluded with hope*, and brought to that place
mi prepare it. One mivht see in his face the
very picture of sorrow : but he seemed not tQ
1

11] STATE TRIALS, 1 James I. lOol.— for High Tnason. [54

want resolution ; tor a napkin being offered | He was stayed by the sheriff, and told, that
by a friend that stood by, to cover his face, he , there resteth yet s>omew hat else to be done ;
threw it away, saying, he could look upon death i fur. that he was to be confronted with some
with >ut blushing. He took leave of some other of the prisoners, but named none. So as
fhends Ur.it stood near, and betook himself to ' Grey and Mark ham being; brought buck to the
he devotions, after his manner; and those 'scaffold, as they then were, but no tiling ac-
eaded, prepared himself to the block. The quainted with what had pussed, no more than
sheriff, iu die mean time, was secretly with* ' the lookers-on with what should follow, looked
drawn, by one John Gib, a Scotch groom of strange one upon the other like men beheaded,
the bedchamber ; whereupon the execution and met. again in the other world. Now all
«u stayed, and Markham left upon the scaffold ; the actors beintr together on the stage (as use
t) entertain his own thoughts, wi.-ich, no doubt, j is at the end of a play,) the sheriff made a short
were as melancholy as his countenance, sad speech unto them, by way of the interrogatory
and heavy. The sheriff, at his return, told of the heinousuess of their offences, the justness
him, that since he was so ill prepared, he should of their trials, their lawful condemnation, and
jet have two hours respite, so led him from the ! due execution there to be performed ; to all
scaffold, without giving him any more comfort, \ which they absented ; then, saith the sheriff,
and locked him into the great ha'l, to walk see the mercy of your prince, who, of himself,
with prince Arthur. The lord Grey, wtuse | hath sent luthor to countermand, and given yoa
turn was next, was led to the scaffold by a ' your lives. There was then no need to beg a
troop of the young courtiers, and was sup- ! plaudite of the audience, for it was given with
ported on both sides by two of his he-t friends ; such hues and cries, that it went from the castle
and coining in this equipage, had such gaiety into the town, and there begun afresh, as if
and cheer in his countenance, thnt he seemed there had been some uich like accident,
t dapper young bridegroom. At his first com- And this experience was made of the differ-
ing on the scaffold, he fell on his knees, and his ; ence of examples of justice and mercy ; that
preacher made a long prayer to the present in this last, no man could cry loud enough,
porpoae, which he seconded himself with one - * God save the Kirg ;' ami at the holding up
of his own making, which, for the phrase, was ; of Brookes's head, when the executioner began
somewhat affected, and suited to his other ' the same cry, he was not seconded by the
speeches; but, for the fashion, expressed the ; voice of any one man, but the sheriff. You

fervency and zeal of a religious spirit. In his
confession, he said, though God knew this fault
'•f his was fur from the greatest, yet he knew,

must think, if the spectators were so glad, the
actors were not sorry ; for even those that
went best resolved to death, were glad of life.

and could but acknowledge his heart to be Cobham vowed openly, if ever he proved traitor
fealty ; for which he asked pardon of the king; again, never so much as to beg his life ; and
tnd thereupon entered into a long prayer lor | Grey, that since he hud Ins life, without beg-
ti* king's good estate, which held us in the rain ging, he would deserve it. Markham returned
more than half an hour : but being come to a i with a merrier countenance than he came to
full point, the sheriff stayed him, and said, he \ the scaffold. Kaleigh, you must think (who
lad received orders from the king, to change : had a window opened that way), had hammers
the order of the execution, and that the lord working in his head, to beat out the meaning
Cobham was to go before him ; wheieupon he of this stratagem. His turn was to come on
w» likewise led to prince Arthur's hall, and ; Monday next; but the king has pardoned him
hi* going away seemed more strange unto him, | with tue rest, and confined him with the two
tbui his coming thither ; for he had no more ! lords to the Tower of London, there to remain
hope given him, than of an hour's respite ; i during pleasure. Markham, Brooks by and
tether could any iirm yet dive into the mystery , Copley, are to be banished the realm. This
ofthik strange proceeding. I resolution was taken by the king without man's

Tbelord Cobham, who was now to play his I help, and no man can rob him of the praise of
part, and by his former actions promised no- yesterday's action; for the lords knew no other,
thing but maticre pour rirc, did much co/en but that execution was to go forward, till the
tiie world ; tor became to the scaffold with : \ery hour it should be pe: formed; and thent
■:-xH assurance, and contempt of death. He calling ihem before him, he told them, how
«aid <omc short prayers after his minister, and much lie h.id been troubled to resolve in thin
so outpravetl the company that helped t » pray business; for to • xet'u'e Givy, who was a no-
»:tl» lam, that a stander-bv said, * He hid a ble voting, soiiited fellow, and -n\e Cobham*
good mouth in a cry, but was nothing single.' who was ;>s b:^eand unworthy, were a m.r.iner
Vwnr few word* he used, to ex pit**"* Ins soirow of mju>ti:e. To ».i\v (J rev, who wis of a proud
Mrhrt orient** to the king, and craved pardon insoknt nature, and execute Cobham, who had
«!* h.iu and the world : for s>ir Walter Raleijh, shewed great tokens of humility aid repent*
he t jok it, upon the hope of his Mini's reMir- ance, wv-re as gre.it a solecism ; and so went on
rertion. that what he had said of him was true; with Plutarch's comparisons in the rest, till
aad wit'i those words would hate t «ken a short travelling in contrarieties, but holding the con-
Urewel of the world, with that constancy and elusion in s > different balance, that the lords
bejdnefs, that we might see by him, it is an , knew not what to look tor till the end came

matter to die well than live well. i out. and therefore I have saved them all. The

■

.53] STATE TRIALS, 1 James I. 1603 — Trial of Sir Walter Raleigh, [50

miracle was as *reat there, as with us at Win-
chester, and it took like effect; for the applause
that be«_;:ui about the kiug. went from thence
into the presence, mid so round about the
court.

I send you a copy of the king's letter, which
was privately written the Wednesday night,
and the messenger dispatched the Thursday
about noon. But one thing bad Like to have
marred the play ; for the letter was closed, and
delivered him unsigned ; which the king remem-
bered himself, and called for him back again.

And at Winchester, there was another cross
adventure ; for John Gib could not get so near
the scaffold, that he could speak to the sheriff,
but was thrust out amongst the boys, and was
fain to call out to sir James Hayes, or else
Markham in in lit have lost his neck. There
were other by-passages, if I could readily call
them to mind ; but here is enough already for
tin petit mot de lettre, and therefore I bid you
heartily farewcl. From Salisbury this 11th of
Dec. 1603. Your's, &c.

Dudley Carlteon.

Account of the Guiana Expedition ; with a Character of Sir Walter Raleigh.
[Extracted from Howell's Familiar Letters, pp. 21, 3 b* 3.]

To Sir James Croft *, kt. at St. Osith.

«

The news that keeps greatest noise here
now, is the return of sir Walter Raleigh from
his Mine of Gold in Guiana, the South parts of
America, which <it first was like to be such a
hopeful boon Voyage, but it seems that that
golden mine is pro ted a mere Chimera, an ima-
ginary airy mine; and indeed his majesty had
never any other conceit of it: But what will
not one in captivity (as sir Walter was) pro-
mise, to regain his freedom ? who would not
promise ; not only mines, but mountains of
gold, for liberty ? and it is pity such a knowing
well-weighed Knight had not had a better for-
fortune; for the Destiny (I mean that brave ship
which l.e built himself of that name, that carried
him thither) is like to prove a Fatal Destiny to
him, and to some of the rest of those gallant Ad-
venturers which contributed for the setting forth
of 13 ships more, who were most of them his
kinsmen and younger brothers, being led into the
said Expedition by a general conceit the world
had of the wisdom of sir Walter Ualeigh ; and
many of these are like to make shipwreck of
their estates by this Voyage. Sir Walter land-
ed at. Plymouth, whence he thought to make an
escape ; and some say he hath tampered with
his body by physic, to make him look sickly,
thi.t he may be the more pitied, and permitted
to he in his own house. Count Goudamar the
.Spanish ambassador speaks high language ; and
sending lately to desire audience of his majesty,
he s.:i<i he had but one word to tell him; his
inaji&ty wondering what might be deliveied in
one word when became before hiiii, he said only,
* .Pirates, Pirates, Pirates,* and so departed.

It is true that he protested against this
Voyage before, and that it could not be hut for
some predatory design : And that if it he as I
hear, 1 fear it will go very ill with s>r Walter,
and that Gondamar will never give him over,
tdl he hath his head otf his shoulders ; which
may quickly be done, without any new Arraign-
ment, by virtue of the old Sentence that lies
still dormant against him, which he could never
get off by Pardon, notwithstanding that he
mainly laboured in it before he went : but his
majesty could never be brought to it, for be
•aid he would keep this as a curb to bold him

within the bounds of his commission, and the
good behaviour.

Goudamar cries out, that he hath broke the
sacred Peace betwixt the two kingdoms; That
he hath fired and plundered Santo Thoma, a
colony the Spaniards had planted with so much
blood, near under the line, which made it prove
such hot service unto him, and where, besides
others, he lost his eldest son in the action : And
could they have preserved the magazine of To-
bacco only, besides other t lungs in that town,
something might have been had to countervail
the charge of the Voyage. Gondamar al-
ledgeth farther, That the enterprize of the
Mine failing, he propounded to the rest of his
fleet to go and intercept some of the plate Ga-
leons, with oilier designs which would have
drawn after them apparent acts of hostility;
and so demands justice : besides other disasters
which fell out upon the dashing of the first de-
sign, captain Kentish, who was the main instru-
ment for discovery of the mine, pistoled himself
in a desperate mood of discontent in his cabin,
in the (Jonvertine.

This return of sir Walter R-deich from Gui-
ana, puts me in mind of a facetious tale I read
lately in Italian (for 1 have a little of that lan-
guage already; how Alphonso kiug of Naples
sent a Mmr, who had been his captive a long
time, to Barbary, with a considerable' sum of
money to buy horse*, and return by such a
time. Now there was about the king n kind of
Buffoon or jester, who had a taUe-book or
Journal, wheicin he was used to register any
absurdity, or impertinence, or merry passage
tutu happened upon the court. That day the
Moor wasdinpatched for Barbary, the said Jes-
ter waiting upon the king at supper, the king
called for his Journal, and asked what he had
observed that day j thereupon he produced his
Table-Book, and among other things, he read
how Alphonso king of Naples had sent Beltram
the Moor, who had been a long time his pri-
soner, to Morocco (his own country) with so
many thousand crowns, ro buy horses. The
king asked him why he inserted that ; Because,
said he, I think he will never come hack to be
a prisoner again, and so you have lost both man
and money. But if he do come, then your Jest
is marred, quoth tht king : ' No sir : for if ha

.i

«]

STATE TRIALS, I James I. l603.-^br High Tivason.

[58

return I will blot out your name, and put him
id for a fool/ The application is easy and ob-
vious : Bat the world wonders extremely, that
to great a wise man as sir Walter Raleigh
would return to cast himself upon so inevitable
a rocky as I fear he will ; and much more, that
such choice men, and so great a power of ships,
sfaoold all come home and do nothing/'

To the Honourable Matter Car. Ra.

u Sir;Whereas you seem to except against some-
thing in one letter that reflects upon sir Walter
Raleigh's voyage to Guiana, because I terra
the gold mine he wenl to discover, an airy and
suppositions mine, and so infer, that it touch-
ed) his honour ; truly, sir, I will deal clearly
with you in that point, that I never harboured
ia my brain the least thought to expose to the
world any thing that might prejudice, much less
traduce in the least degree that could be that
rare renowned knight, whose fame shall contend
in longevity with this Island itself, yea, with
that great World which he historiseth so gal-
lantly. I was a youth about the town when he
aodertook that expedition, and I remember
most men suspected that Mine then to be but
to imaginary politic thing; but at his return;
and missing of the enterprize, these suspicions
turned in most to real beliefs that it was no
ether. And K. James, in that Declaration
which he commanded to be printed and pub-
lished afterwards, touching the circumstance of
this action, (upon which my letter it grounded,
and which I have still by me) terms it no less.
And if we may not give fnith to such public re-
pd instruments, what shall we credit? Besides,
there goes another printed kind of remon-
strance annexed to that declaration, which in-
timates as much : and there is a worthy cap-
tain in this town, who was co-ad vent mer in
that expedition, who upon the storming of St.
Thomas, heard young Mr. Raleigh encouraging
his men in these words : Come on, my noble
hearts, this is the mine we come for ; and ihey
who think there is any other are fools. Add
hereunto, that sir Richard Raker, in his last
historical collections, intimates so much.
Therefoie, it was far f»on> being any opinion
broached by myself, or bottomed upon weak
pounds; for I was careful of nothing more,
than that those letters be'ng to breath o; en
air, should relate nothing but what should be
derived from good fountains. And truly, sir,
touching that apology of sir Walter Raleigh's
you write of, I never saw it, I am very sorry I
did not ; for it had let in more light upon me of
the carriage of that great action, and then you
miehl have been assured, that I would have done
that noble knight all the right that could be.

M But, sir, the several arguments that you urge
m your Letters are of that strength, I confess,
tint they are able to rectify any indhTerent man
in this point, and induce liim to believe that it
w«*ls ho chimera, but a real mine ; for you write*
of d i vera pieces of gold brought thence by sir
Walter himself, and capt. Kemy?, and of some
ingot* that were found in the governor's closet at

St. Thomas's, with divers crucibles, and other re-
fining instruments : yet, uudcr favour, that might
be, and the benefit not counteivail the charge,
for the richest mines that the king of Spain hath
upon the whole continent of America, which
are the mines of Potosi, yield him but six in the
hundred, all expences defrayed. You write
how K. James sent privately to sir Walter, be-
ing yet in the Tower, to in treat and command
him, that he would impart his whole design to
him under* his hand, promising upon the word
of a king to keep it secret; which being done
accordingly by sir Walter Raleigh, that very
original paper was found in the said Spanish
governor's closet at St. Thomas's : whereat, as
you have just cause to wonder, and admire the
activeness of the Spanish agents about our
court at that time, so I wonder no less at the
miscarriage of some of his late majesty's minis-
ters, who notwithstanding that he had passed
his royal word -to the contrary, yet they did
help Count Gondomar to that paper ; so that
the reproach lieth more upon the English than
the Spanish ministers in this particular. Where-
as you al ledge, that the dangerous sickness of sir
Walter being arrived near the place, and the
death of (that rare spark of courage) your brc—
ther, upon the first landing, with other circum-
stances, discouraged capt. Ketnys from discover-
ing the mine, but would reserve it for another
time ; I am content to give as much credit to
this as any man can ; as also that sir Walter, if
the rest of the fleet, according to his earnest
motion, had gone with him to revictual in Vir-
ginia, (a country where he had reason to be
welcome unto, being of his own discovery) he
had a purpose to return to Guiana the spring
following to pursue his first design. I am also
very willing to believe that it cost sir W. Ita-
leigh much more t» put himself in equipage for
that long intended Voyage, than would have
paid for his liberty, if he had gone about to pur-
chase it for* reward of money at home; though
I am not ignorant that many of the co-adven-
turers made large contributions, and the for-
tunes of some of them MiftV-r for it at this very
day. Hut although Gondomar, as my letter
mentions, calls Mr Walter Pirate, I tor my part
am far from thinking so ; because, a«» you give an
unanswerable reason, the plundering of St. Tho-
mas was an act done beyond the equator, where
the articles of peace betwixt the two kings do
not ext> nd. Yet, under favour, though he
broke not the peace, he was said to break his
patent by exceeding the bounds of his commis-
sion, as the foresaid declaration relates : For K.
James had made strong promis» s to Count
Gondomar, that this fleet should commit no
outrages upon the king of Spain's subjects by
land, unless they began first ; and 1 believe
that was the main cause of his death, though I
think if thry had proceeded that way against
him in a legal course of trial, he might have de-
fended himself well enough.

" Whereas you alledge, that if that action
had succeeded, and afterwards been wrll pro-
secuted, it might have brought Gondoniar's

50]

STATE TRIALS, 1 James I. 1G03.— Trial qf Sir Walter Raleigh.

[60

great catholic master to have been begged for
at the church-doors by friar?, as he was once
brought in the latter end of queen Elizabeth's
days : .1 believe it had much damnified him,
and interrupted him in the possession of his
West-Indie-*, but not brought hiin, under fa-
vour, to so low an ebb. I have observed, that
it is an ordinary thing in your popish countries,
for princes to borrow from the altar, when they
are reduced to any straits ; for they say, The
riches o( the church are to serve as anchors in
time of a storm. Divers of our kings have
done worse, by pawning their plate and jewels.
Whereas my letter make* mention that sir W.
Raleigh mainly laboured for his pardon before
he went, but could not compass it ; this is also
a passage in the foresaid printed relation : But
I could have wi>hed with all my heart he had
obtained it; for I believe, that neither the
transgression of his commission, nor any tiling
that he did beyond the Line, could have short-
ened the line of his life otlierwisc ; but in nil
probability we might have been happy in him | year came about, to be found clipping the

to this very day, having such an heroic heart
as he had, and other rare helps, by Ids great
knowledge, for the preservation of health.
I believe without any scruple what you write,
that sir Win. St. (iron made an overture to
hiin of procuring his paidun f<»r 1500/. but
whether he could have e: tec led it, 1 doubt a
little, when he had come to negotiate it reallv.
But I extremely womler how that old sentence
which had lain dormant above sixteen years
against sir W. Raleigh, could have been made
use of to take off his head afterwards, consider-
ing that the Lord Chancellor Vn-ulum, as you
write, told him positively (as sir Walter was
acquainting him with that proffer of sir Win.
St. Gcon for a pecuniary pardon) in these
words, Sir, the knee-timher of your voyage is
money ; spare your purse in this particular, for
upon my life you have a snlhrient pardon for
all that is passed already, the king having under
his broad-seal made you admiral of your fleet,
and given you power of the martial law over
your officers and soldiers. One would think
that by this royal patent, which gave hiin power
of life and death over the king's liege people,
sir W. Raleigh should become recltu itt cuiia,
and free from all old convictions. But, Mr, to
tell you the plain truth, count Oondoinar at
that time had a great stroke in our court, be-
cause there was more than a mere overture
of a match with Spain; which makes me apt
to believe, that that srreat wise knight being
such an anti-Spaniard, was made a sacrifice to
advance the matrimonial treaty. But I must
needs wonder, as you ju.stly t\o, that one and
the same man should be condemned for being a
friend to the Spaniard, (which was the ground
of his rir#t condemnation ) and afterwards lo^e
his head for being their enemy by the same sen-

tence. Touching his return, I must confess I
was utterly ignorant that those two noble
earls, Thomas of Arundel, and William of
Pembroke, were engaged for him in this parti-
cular ; nor doth tho printed relation make any
mention of them at all : Therefore I must say,
that envy herself must pronounce that return
of his, for the acquitting of his fiduciary
pledges, to be a most noble act ; and waiving
that of king Alphonso's Moor, I may more pro-
perly compare it to the act of that famous Ro-
man commander, Regulus, as I take ir, who to
keep his promise and faith, returned to his
enemies where he had been prisoner, though
he knew he went to an inevitable death. But
well did that faithless cunning knight, who be-
trayed sir W. Raleigh in his inteuded escape,
being come a-shore, fall to that contemptible
end, as to die a poor detracted beggar in the
isle of Lundey, having for a bag of money fal-
sified his faith, confirmed by the tie of the holy
saci Mincnt, as you write ; as also before tlie

same coin in the king's own house at White-
hall, which he had received as a reward for his
pcrtidinusness; for which being condemned to
be hanged, he was driven to sell himself to his
shirt, to purchase his pardon of two knights.

" And now, sir, let that glorious and gallant
cavalier sir W. Raleigh (w1m> lived long enough
for his own honour, though not for his country,
as it was said of a Roman consul) rest quietly
in his grave, and his virtues live in his posterity,
as 1 find tin v do strongly, and very eminently
in you. 1 have heard his enemies confess that
he was one of the wciiihiiest and wisest men
that this island ever bred. Mr. Nath. Carpen-
ter, a learned and judicious author, was not in
the wrong when he gave this discreet character,
of him : * Who hath not known or rend of this
prodigy of wit and fortune, sir Wulter Ra-
leigh, a man unfortunate in nothing else but
in the greatness of his wit and advancement,
whose eminent worth was iuch both in do-
mestic policy, foreign expeditions, and dis-
coveiies in arts and literature, both practick
and contemplative, that it might seem atonce
to conquer example and imitation !' "

See also " A Declaration of the demeanour
and carriage of sir Walter Raleigh, kut. as well
in his Voyage ns in and sithence his return, and
of tlu* true Moti\cs and Iuducemcu's which
occasion* d his majesty to proceed in doing
justice upon him as hath beea done. Printed
by the kings printers in loltt;" republished, 3
Ilarl. Mis. 1745: and '* A Brief Relation of sir
Walter UaleiidisTrouhlc*, with the taking away
the Lands and Castle of Sherhourn in Dorset,
from him and his heirs," 4 Harl. Mis. 57 ; and
for farther particulars the 2d Volume of Cay*
lev 's Life oi Sir Walter Raleigh may be cousulted.

61] STATE TRIALS, 1 Jamis I. 1603.— Trial of Sir Griffin MaMam, $c. [6<z

7J. The Trial of Sir Griffin Markham, knt. Sir Edward Par-
ham, knt. George Brooke, esq. Bartholomew Brookksby,
esq. Anthony Copley, William Watson, Priest; William
Clarke, Priest, for High Treason, at Winchester: 1 Jac. I.
Nov. 15, a.d. 1603. [From a MS. in the Bodleian Library,
Rotulae in Archivo. A. 3033. 44. 8.]

TlIE Commissioners were, the earl of Suffolk,
Lord-Chamberlain, Charles earl of Devonshire,
Henry lord Howard, Robert lord Cecil, Secre-
tory ; Edward lord Wotton, Comptroller; John
Stanhope, Knight and Chamberlain ; Lord-
Chief-Justice of England, Lord-Chief- Justice
of the Common-Pleas, Justice Gawdy, Justice
Waimedey, Justice War burton, sir William
Wade, knight.

On Tuesday the 15th of November, were
arraigned at Winchester, George Brooke, esq.
fir Griffin Markham, knight, Bartholomew
Brookesby, esq. Anthony Copley, gent. Wm.
Watson, priest ; Wm. Clarke, priest, and sir
Edward Parham, knt.

The Effect of the Isdtctment.

* For consulting with the lord Gray and
' others, traitorously to surprize the king and
1 y.nmg prince at Greenwich, to carry them to
4 the lower guarded with some, tliat after the

* daughter of many of the guards, should put
4 on the guards coats, and so bring them, send-
1 ir.g the Lord-Admiral before to signify the
' d stress where the king was, and escape be

* mule by the guards from Greenwich; i:nd
4 therefore desired to be taken in there for
' more safety. Which, if they could have cf-
1 Sertoli, the treasures i-.nd jewels in the Toner

* should serve the tu;*n .or th.* elloctmi: «»f their

* twiner purposes ; that some of thosie of the
' f-rhy-council, viz. the Lord-Chanceilor, trca-

* surer Cecil, Chief- Justice;, should be removed
1 a*!d cut off: and Mr. W.it.-on ;-hould be

* chancellor, Brooke lo.d treasurer, and Mnrk-

* fuin secretary ; Gray lord marshal and mar
' Ut of the horse, if the now muster of the
' horse were otherwise preferred ; but for the
1 iord-chie f-justiie no man named. If their
1 project for bringing them to the Tower failed,
1 then tu conwy the king to Dover, where

* George Brooke presumed upon hi* intereat
1 « ith Thomas Vands ; but Mr. Attorney jus-
' fitted hi* assurance of the lord Cobhiim. In
4 •.•'■£ of iher.e places they meant to lnve kept
' tie kin* for the space of thr.ee months, and

* ••; their first entrance, they should require
1 th?ee things. 1. A general pan ion of all
; th- :r purposes and intentions a&ahvtt the king

* Mil prince. '2. The kiiii: should yield to a
' toleration of religion; with an" equality of all
' <*o<iu<4etlors und other officer*, as well papists
4 ** protestants, within his court or otherwise.
' ."». That be should remove and cut off the

* fwre-mntioaed counsellors, and others who

* should be thought to hinder this designment,
' for which purpose Watson named Veale,

* alias Cole, to alledge sufficient matter against
' them. — And for the belter effecting of tins

* their purpose, Watson had devised under

* writing an oath should be administered for
1 the preservation of the king's person, for the
' advancement of the catholic religion, and for
' the concealing of all secrets that should be
' revealed unto them. That all the actions
' should be proceeded withal in the king's
' name, and they meant to send for the lord-
' mayor and aldermen of London, that the king
' would speak with them : whom they meant
4 to keep in safe custody, till they had deliver-
' ed hostages to them not to withstand their
' assignments, and to furnish them with all

* such necessaries as they should require from

* them. Watson was the villainous hatcher of

* these Treasons ; and Brooke, upon the leam-
' ing of then, was as eager a prosecutor; and
' the lord (Tray more eager and violent than
' he, purposing to make a suit to the king for
' carrying over a regiment for the relief of
1 Ostend, which he would have ready tor the
1 defence of his own person in this action, fear-
' ing the greatness of the catholic forces nc-
1 cording to the promises of George Brooke,

* Markham and Watson, and knowing not
' how he might he dealt withal amongst them/

Mr. George Brooke said little or nothing in
his own defence, only he made a ridiculous ar-
gument or two in the beginning: \iz. that,
that only could be the judge, and examiner of
any action, which was the rule of the action :
but the Common Law was not the rule of the
action, rrgo, it could not be judge or ruler of
the action : and therefore appealed to the per-
son of the king. 2. That the Commissioners
or Common Law had no authority over thcrn ;
because it is a maxim in the law, ejus esse con*
titmnare* cujus est abfoirere : but the Commou
Law could not absolve him, being guilty, there-
fore- could ijiit condemn him.

Air. Attorney to this would have answered
I particularly, but was by the Commissioners
and Judges willed to reduce himself to his own
element.

Loid Henry Howard undertaking to have
answered him, my L. C. Justice t'dd him, that
the Kin::, bv reason of his uiativ causes, had
man" under him to execute the 1 iw of justice;
but he kept, in his own hands the key of mercv,
either to bind or loose the proceedings, as in
his own princely wisdom he should think fit.

C3] . STAT^ TRIALS, 1 James I. 1603— fr/af qf Sir Griffin Markham, [61

Scotland and England in combustion ; and so
upon Cobhain's return out of Spain, to meet
Raleigh at the isle of Jersey, and so to put on
foot both titles, both within and without the
land.

Mr. George Brooke, after lib first arguments,
spake little or nothing for himself, more than
his own Confession led him otherwbiles to
excuse or qualify his own offence; only he
gave cast of a Letter, which, he said, he re-
ceived from his majesty, wherein he had liberty
and authority to deal in the sounding out of
these practices ; but neither at any nine be-
fore nor at his Arraignment, could shew the
said letter. And the king being by some of dm
Lords Commissioners questioned withal on that
point, requireih his Letter to be produced,
and deiiieih be wrote any such letter.

Sir Griffin Markham answered exceeding
well, and truly to all things ; denying nothing
for his fault of Treason ; but that he deserved
death upon the persuasion of Watson, by whom
he was misled, and assured that the king before
liis coronation was not an actual, but a political
king : only he desired to avoid the imputation
of effusion of blood in that enterprize, and (if
it were possible) the brand of a Traitor lor his
house and posterity, protesting how carders he
was of his own life, which he desired to he
exposed to any hazard or sacrifice (though it
was never so desperate;) which if the king
would not (in mercy) yield him, yet he desired
their lordships to be intercessors, that he might
die under the axe, and not by the halter.

Watson spake very absurdly and deceivingly,
without grace, or utterance, or good deliver-
ance ; which (added to his foresaid villainy)
made him more odious and contemptible to all
the hearers.

Clarke, the other Priest (mi excellent nim-
ble-tongued fellow), of good speech, more
honest in the carriage of the business, of an ex-
cellent wit and memory, boldly, and in well-
beseeming terms, uttering his mind, not unwil-
ling to die, but desireth to avoid the imputa-
tion of a traitor.

Copley, a man of a whining speech, but a
shrewd invention and resolution.

Brookesby drawn in merely by Watson to
take the Oath before-mentioned, for some of the
particularities, as the bringing the king to the
Tower for the advancement of Ucligion ; but
spake with nobody to incite them to the busi-
ness nor came himself according to his time ap-
pointed by Watson, the 23rd or 2 -1th of June,
but at that instant attended upon the queen.

Sir "Edward Par ham was also by that villain
Watbon dealt withal after he had tendered hiin
the oath to this purpose : that he understood
the lord Gray meant with forces to set upon
the king, and to surprize him, that against that
time, whether he would not draw his sword
against the lord Gray with the king'* servants
aud friends? And if the king's servants were
discomtited, whether with the rest of the Ca-
tholics he would not encounter the lord Gray,
aud if he could bring him to die Tower for his

Therefore said Mr. Attorney, you, Mr.
Brooke, professing yourself to be learned, cannot
be ignorant that both your ancestors have been,
and you must he liable and subject yourself to
the trial of the law of this nation, wherein you
were born, and under which you live, 6f igno-
lantia juris non esc u sat. These treasons were
termed by the lord Cobham ' The Bye/ as Mr.
George Brooke confessed to Watson aud the
lord Gray ; but, said he, Walter Raleigh* and
1 arc chanced at the Main. Whereupon Mr.
Attorney gave a touch of the Treasons of the
lord Cobham and Raleigh, who had procured
from A rem berg five or 600,000 crowns, to be
disposed by the lord Cobham, who should
therewith raise forces for the extirpation of
the King and his Cubbes, and putting both

* Sir John Hawles (Solicitor-General temp.
Will. 3.) in his reply to sir Bart. Shower's
" Magistracy and Government of England vin-
dicated, &c." pag. 32, says, the king came to
London in May, and in Joly following was the
pretended plot discovered ; and in November
following, the pretended delinquents were tried
at Winchester, together with Watson and
Clarke. Their Accusations were in general,
1. To set the Crown on the lady Arabella's
head, and to seize the king. 2. To have a
toleration of Religion. 3. To procure Aid and
assistance from foreign princes. 4. To turn
out of court such as they disliked, and place
themselves in otftces. — Of these the first Arti-
cle is Treason; what crimes the rest are, is
doubtfuL What of them was proved against
the lords Cobham and Gray, Watson and
Clarke, or how their Trials were managed, doth
not appear : but sir Walter Raleigh's Trial
does appear, and is much like the lord Russet's,
and therefore of some circumstances of it, I
think, it is fit to take notice. Instead of Con-
sults, &c. in the lord Russel's Trial, the cant
words of the surprizing the Bye, and the Main,
were made use of in sir Walter's, interprctable
as the Council thought fit ; at least it was asto-
nishing to the Jury, which was all that was de-
signed by the Council, and fatal to the pri-
soners. I have no mind to run through all the
ramble of sir Walter Raleigh's Trial, as it is
printed before his History of the World, be-
cause the parallel is too exact, and sticks too
close to the memory of persons gone : only 1
will say, That if sir Walter Raleigh was guilty
qf the thing he was accused of by the Witnesses,
though the accusation did not amount to a legal
proof, it was Iliuh-Treason ; but if the lord
Russel was guilty of the^hing he was accused
of, he was not guilty of High-Treason." — And
the same author, says, p. 35, " I think it is
plain at this duy, that of sir Walter Raleigh's
is thought a sham Plot ; what the lord Russel's
is thought, let the author say, I am loath to enu-
merate all, but if any person will give himself
the tro'ible of reading and comparing the
Trial of the lord Rustri with that of»ir Waiter
Raleigh, they will find them exactly parallel in
a number of other particuhirs."

<fc]

STATE TRIALS, 1 James I. 1 603. —and others, for High Treason.

[66

relief and the advancement of the Catholic
rehgion ?

far ham told him, that he would so, if he was
persuaded that bis intendment of the lord
Gray were true, which at that time Watson
could not assure him of; for he did but hear
of so much : but said he, when I have better
assurance thereof, which will be within these
three davs, you shall further hear of me. He
laying the time, Watson came not, and so
P*j ham's proceedings went no further : but
bang urged in the point for bringing the king
to the Tower, for the advancement of the Ca-
tholic religion, he said, he *aade no doubt, but
ttat he with others, adventuring ther lives for
the rescuing the king from the lord Gray, and
bringing him for his safety to the Tower, this
then Mould not but merit some grace from the
king, for the advancement of the Catholic
rthiion.

Sir Francis Ihircy being Foreman of the
Jury, and excellently commended for this day's
carriage and behaviour, made two or three
doubt* concerning Mr Edward Parhaui's Case,
and received lesoiution from the Bench in some
points, and the rest left to his conscience and
understanding, vent with the rest of the Jury,
and found all Guilty, saving Parham, and so
he«.i» discharged ; and upon the rest Sentence
«4' death ivus pronounced by the Lord-Chief-
Jtfetice.

The Copie of a Letter written from master
1. M. net re Salisbury, to Master II. A. at
l»iid'>ii. concerning the Proceeding at Win-
chester ; where the l.ue lord Cobham, lord
Gray, and sir Griniu Mark ham, all attainted
of hie Treason, were ready to be executed,
ou Friday the 9th of Dec. 1603. At which
time his majesties Warrant, all written with
his own hand, (whereof the true Copie is,
here annexed) was deliuered to sir lien-
jaroiu Tichboume, High She ri lie of Hamp-
shire, commanding him to suspend their
execution till further order. Imprinted at
Loudon, 1603.

Sr; I hauc receiued a letter from you; hv
*uch I perceiue howe much you desire to be*
particularly enfourmed of the cause and man-
J*r of i he stay of the late lord CobhanYs, lord
Onne's, and sir Grirtiii Mark ham's Execution,
^pointed at Winchester; wherein, although
there are many better able to discourse at large
o;' -iic li an action then myselfe, yet 1 conceiue
*hen you ha\e perused this plaine and true
relation, of that which all men there behelde
t .at day, and many more since haue heard,
t: »m persons of the best qualitie mid know-
kfl*e, you will thaiike me more, for 6utferiii£
On- trueth to stiew itself vuclothed, then if I had
laboured to haue deliuered you a tale well
painted with curious words and tine phrases. —
Yen mu-t therefore vnderbtand, that as sonne
t* the Arraignments were passed at Win-
ttatter, his majesties Priue-couiisel (to the
Dumber of 14 or 15, of which companie all of
ttan had cither bctae trycrs of the noblemen

f OU II.

as their peers, or sitten as high Commissioners
vpon the gentlemen) were called before his
majestic (in his* Priue-chamber, at Wilton,
where he commanded them to deliuer (w ithout
respect to any per>on) the true narration onely ;
of the order in the Trial! ot these persons that
had beene condemned by the law t, and of the
nature and degree of their offences, as had ap-
peared in euery one of them, by their seucral
answeres. — Ail which being cleerely and justly
reported by them (each speaking in the hearing
of the rest) his majestie . for his part, used'
himself so grauely and reseruedly in all his
speeches, as well to themselues at that time, as
also to all other persons after, in priuate or
publique, us neither any of his priue-counself,
nobilitir, or any that attended ueerest to his
sacred person, durst presume to mediate for
any, or so much as to enquire what should
be the conclusion of this proceeding.

In the meane tune, while the Court was full
of uariety of discourse, some speaking out of
probabilirie, others arguing out ol desin , what
was like to be (he fortune ot all, or of any of these
Offend ours, his majestic hauing concluded
onely in his own secret heart (which is the true
oracle of tjrace and know ledge) in what manner
to proceed ; and that without asking counsel
of any earthly person it pleased him to rcsolue
between e God and i.imselfe, that their execu-
tion should be staved, euen at the instant
when the axe should be layde to the trees
routes. For the seciet and orderly caniage
whereof, his majestie wa* careful to preuent all
cause or colour ot' suspicion, of that judicious,
joyall, and vuexpected course which followed.
And therefore, after the two Priests were exe-
cuted, on Tuesday the 29th of Nov. and master
George Brooke on Monday following, his' ma-
jestie on the same day, being the 1st of Dec.
signed three Warrants, for the execution of the
late lord Cobham, l«»rd Gray, and sir Grirtin
Markham, knt. with particular direction to the
She ride, to performe it ou Friday after, before
ten a clockc in the morning. — All these direc-
tions being now become notorious, both by
the Writs of Execution (which passed voder
the great seale) and by the making rcadie the
Scaffolds at Winchester, his majestie uery
secretly (as now appeareth by the sequele)
drewe himselfe into his cabinet, on Wednesday
befoie the day of execution, and there pi in ate ly
framed a Wurrant, written all with his own
hand, to the Sheriffe, by venue whereof he
countermaunded all the former directions, al-
ledgiug the Reasons therein mentioned. Of
which seeing no man's pen can so well expresse,
as his owne, 1 ^end you the Copie verbatim,
as 1 took it out of the originnll, which many
read in my cousin sir Benjamin Tichbourne's
hand.

And now to come to the ordering of this bu-
sine«se ; among many other circumstances, it
is uery remarkable, with what discretion and
foresight that person was elected, which must
be vsed in carriage of the Warrant. First, his
majestie resolved it sh6uld be a Scoti

67] STATE TRIALS, 1 James I. 1303.— Trial of Sir G. Marlham, and others. [68

being thereby like to be freest from particular
dependeucie vpon any nobleman, counsellors,
or others, their friends or ailyes. Next bee
re^olued, to send a man of no cxtraordinnric
ranke, because the stnndrrs-by should not ob-
serue any alteration, nor the delinquents thcin-
selves should take any apprehension of such a
man's being there at that time : this being his
mujt'!>?ies speciall de*ire, that euery one of
them (being scucrully brought vpon the teat-
fold) might quietly breath foorih their last
wordes, and true Confession of his secret est
conscience. An J so, to be short, his majestic
made choice of Mr. John Gibb, a Scottish man,
as aforesaid, a man that had never dealt with
any counsellor, or other, for suite or businesse,
but one that had, vyithiu short while after the
Line's first en trie, bene sent backe into Scot-
land, from whence he was but freshly arriued
at Wilton, some fewe dayes before.

This party being by the king approoued for
au ancient, trust ie, and secret seruant, as a
groome of his majesties bed-chamber, and a
man, as is said be- fore, little knowen, and less
hound to any subject in England for any bene-
fit, receiuing the Warrant secretly, on Thurs-
day, from thtt king's owne hand, mid telling his
fellowes (who would otherwise bane missed
him) that he must lie that night at Salisbury
vpon some priuate businesse of his owne, lie
rode directly to- Winchester, and there, keeping
himselfe priuate all night, rose earely in the
morning on Friday, and went obscurely to the
Castle-grccne, where the people Hocking in all
the morning, as the time die we nccre, he put
himselfe with the throng, close by the Scallold,
and there leaned till the Sheritie brought up
sir Griffin Mark ham to the place, who was the
man appointed fir^t to die.

There the sayd tir Griftin Markham, hauing
ended his pmyer, and made himselfe rcadic to
kneele downc,. Mr. John Gibb finding it fit
time, while the axe was preparing, to giue some
secret notice of his charge, called to my cousin
Tichbourne, the Sheriffc, to speakc with him,
and then dcliuered him (prinatciy) his majesties
Warrant, with further direction.-) ucrbally, how
lie should vse it.

Herevpon the Shcriife, perreiuing fully his
majesties intention, so wuiily and discreetly
marshalled the matter, ns bee ouely called sir
G rutin Markham vuto Lira on the Scallold,
and told him, that he must withdraw him>elfe
into the Hall, to be confronted (before his
death) before those two lords, that were to
follow him, about some points that did concern
his majesties seruice ; and so carrying Mark-
ham into the Hall, lie left him there, and went
vp hastily, tor the lord Gray, to the Castle,
Mho Icing likewise brought vp to the Scaffold,
and suffered to powre out hi* prayers to God,
at great length, mid to make his last Confes-
sion, as he would answer? it upon bis soule,
when he was reodie to kneele downe, to rtcciue
the stroke of death, Master Sheritie caused
him to stay, and told him that he must goe
4owae for a while into the Hull, where finding

sir Griffin Markham, he willed him to tarry
them till he returned.

La.?t of all, he" went for the lord Cobham,
who bluing also ended his deuotion to God,
and making himselfe ready to receiue the same
blowt the Sheriflv finding the time come to pub-
lish the king's mercie to the worlde, and to re-
uealc his mysterie, he caused both the lord
Gray and sir Griffin Markham to be brought
backe to the Scaffold, and there, before thein
all three that were condemned, and in the
hearing of all the company, notified his majes-
ties Warrant, by which lie was authorised to
stay the Execution. Wliich strange srnd vn-
deserved grace and mercie, proceeding from a
prince, so deeply wounded without cause, or
colour of cause giuen by himselfe toward them
in any thing, but meerely contrary (to both
the loids especially) bred in the hearts, as well
of the offenders ^is of the standers-by, such/
sundry passions, according to the diuers tem-
pers of their minds, as to some that shall re-
ceiue those things by report, which others did
behold with their eyes, my relation may rather
seeme to be a description of some ancient His-
tory, expressed in a well-acted comedy, than
that it was euer possible for any other man to
represent, at one time, in a matter of this con-
sequence, so many liuely figures of justice and
mercy in a king, of terror and penitence in of-
fenders, and of so great admiration and ap-
plause in ail others, as appeared in this ac-
tion, carried only and wholly by his majesties
owne direction.

The lord Co Mi am (holding his hand to hea-
ucn) applauded this incomparable mercie of so
gracious a soueraigne, nggrauating his owne
fault, by comparing it with the princes clemen-
cie, wishing confusion to all men uliue, that
should euer thinke a thought against such a
prince, as neither gnue cause of offence, nor
tooke reuenge of ingratitude.

The lord Gray, finding in what measure tliis
rare king had rewarded good for euill, and for-
borne to make him an example of discounige-
ment and terror to all men that hereafter might
attempt to break the bonds of loyalty, vpon
the passions of any ambition, began to sob and
weep for a great while, with most deep contri-
tion, protesting now, that such was his zeale
and desire to redevme his fault by any meaues
of satisfaction, as he could easily sacrifice? his
life, to pseuent the lo?sc of one finger of that
myall hand, that had dealt so mercifully with
hiin, when he least looked for it.

Sir Griliin Markham (standing like a man
astonished) did nothing but admire and pray.
The people that were present witnessed, by in-
finite applause and shouting, the joy and com-
fort which they took in these wonderful 1 effects
of grace and mercy, from a prince whonie God
bad inspired with so many royal I gifts for their
conseruation, and would conserue for his owne
glorie.

The crie being carried out of the Castle-
gutes into the town, was nut onely sounded with
acclamation of all sexes, qualities and ajfcctioa,

69]

STATE TRIALS, 1 James I. 1004.— Hampton Court Conference.

[70

but the true report, diuulged since in ail partes,
hath bred ill live %voon>t disposed mindes, such
remorse of iniquitie, in ihe best such incourage-
loejit to loyaltie, and iu those that are indif-
ferent such feare to offend, and generally such
affection to his majesties person, as persuades
the v\ hole world, that Sat ban hiinselfe can neuer
so far prevail with any, as to make them lift vp
their hearts or hands against a prince, from
whom they receiue such true effects of j ustice
sod goodness.

To concluue, therefore, I haue now done
my best to satisfy your desire, though I feele
to my grlefe, how short I come to my own wish ;
because I would haue expressed to the life, it'
khud been possible, both the matter and the
forme of this. proceeding; of both which the
wisest men, that haue seene and vnderstoode
all particular circumstances, are at the eude of
their wits, to giue an absolute censure, whether
of them both deserue greater recommendation :
this being most assured, that there is no record
extant, wherein so great wisdome and vnder-
staodinge, so solid judgement, so perfect a re-
solution, to giue way to no request, or media-
tion: so inscrutable a heart, so royall and
equal a tempered mercie, after so clear and
publike justice, haue euer concurred so de-
monstratiuely as in this late action, wherein
this blessed king hath not proceeded after the
manner of men and of kings, Sed calrstis Ju-
dtcisy eternique Regis more, whereof he shall
I* most assured to reapc these tasting fruitcs,
ofbeiog beloued and feared of all men, obeyed
with comfort, and serued with continual! joy
and admiration. And so forbearing to hold
you any longer at this time, I end. From my
house, neere Salisbury, the 15th of Dec. 1(303.
Your lovin cousin and friend, T. M.

His Majesties Warrant, written with his own

hand.

' Although it be true, that all veil gouerntd
' and flourishing kingdoiues and common
' ?t alt his are established by iustice, and that
1 these tuo noblemen by birthe, that aire nou

* upon the point of Execution, aire for thair

* treasonable practices coudemnid by tlie lawe,
' and adiudgit worthy of the Execution thaireof,
' to the example and terror of utheris; the one
' of thaim hailing filthily practised the ouer-
' tlirow of the quhole kingdome, and the other
'for the surpri;>e of our owin personne; yet
' in regaird that this is the fimt yeere of out
' raignc, in this kingdome, and that neuer king
' was so kirre oblisheid to his people as ve haue
' bene to this, by our entrie heere with so
4 hairtie and generall an applause of all sorts ;
' among quhom all the kinne, friend is, and allies
i of the saidis condemnid personnis vaire as

* ibrduart and duetifuil as any other our good

* subjects, as also that at the very time of thair
' arraineincnt none did more freely and reddily

* giue thair assent to their conuiction, and to
' deliuer thaim into the hand is of iustice, then
' so many of thair neerest kinsmen and allies
' (as being peeris) vaiere vpon thair iurie; as
' likeuaise in regard that iustice hath in some

* sort gottin course akeadie, by the execution
' of the tuo priestis, and George Brooke, that

* vaire the principall plotteris and intisuirs of
' all the rest, to tl»e embracing of the saiddrs

* treasoirahill machinations; vee thai r fore (be-

* ing resoluid to mix clemencie with iustice)
' aire contented, and by these presentis com-
' inand you, our sheriffe of Hampshire, to su-

* perseide the execution of the saidis tuo noblc-
' men, and to take thaim backe to thair pri>on

* agaiue, quhile our further pleasure be knowin.
' And since vee vill not haue our lawis to haue
' respect to personnis, in spairing the great, and
' sirikking the meaner sort; it is our pleasure,
( that the like course be also taken with Mark-
' ham, bestir sorry from our hairt, that such is,

* not only tne hey nous naiure of the saidis con-

* demnid personnis crime, but euen the corrupt
' .tion is so great of thair n at u rail disposition, as
' the care vee haue for the safety and quiet of

* our state, and good subiectis, vill not permit

* vs to vse that ciemencie tovardis thaim,
i quhich, in our owin natural! inclination, vee
' micht very easily be persuadit vnto.'

76. Proceedings in a Conference at Hampton Court, respecting
11efor3i a tion of the Church :* 1 Jac. a. d. 1G04. [Fullers
Church Hist. 673. 2 Neal. 5. 2 Kcnnett's Com pi. Hist. 665.]

A.XD now, because there was a general ex-
pectation of o parliament, suddenly to suc-
ceed, the Presbyterian party, that they might

not be surprised, before they had their tackling
about them, went about to get hands of the mi-

• Bishop Kennett says, " This Conference
at lUuipton -Court was but a blind to introduce
Episcopacy in Scotland, all the Scotch noble-
men then at Court being designed to be pre-
sent, and others, both noblemen and ministers,
. being called up from Scotland to assist at it, by
the Km|> Letter.

nisters to a petition, which they intended sea-
sonably to present to the king and parliament.
Mr. Arthur Hilder*hum,und Sir. Stephen E^er-
ton, with some others were chosen, and chiefly
intrusted to manage this important business.
This was culled The Millenary Petition,* as,
One of a thousand, though indeed there wcie
but seven hundred and fifty preachers hands set
thereunto : lait those all collected only out of
five and twenty counties. However, for the

* The Petition is inserted at the eud of tlie
proceedings at this Conference.

?1]

STATE TRIALS, 1 James I. 100+.— Hampton Court Conference,

[72

more rotundity of the number, and grace of the
matter, it pnsseth for ti full thousand ; which,
no doubt, the collectors of the names (it* so
pleased) might easily have compleated. I dare
not guess what made them desist before their
number was finished ; whether they thought
that these were enough to do the deed, and
more were rather for ostentation than use; or,
because disheartened by the intervening of the
Hampton-court Conference, they thought, that
these were even too many to petition tor a de-
nial. It is left as yet uncertain, whether this
Conference was by the kind's favour graciously
tendered, or by the mediation of the lords of
his council powerfully procured ; or by the bi-
shops, as confident of their cause, voluntarily
proffered; or by the ministers importunity ef-
fectual I v obrained. Each opinion pretends to
probability, but the Ian most likely. And, by
what means soever this Conference was com-
passed, Hampton-court was the Place, the 11th
of January the time, and the following Names
the peipous which were employed i hen in.

For Conformity. — Archbishop of Cantcr-
buiy, Whitgift. — Bishops of London, Bancroft;
Durham, Mathew; W inches' er, Bilson ; Wor-
cester, Babiugton ; St. David's, Rudd; Chi-
chester, Watson ; Carlisle, Robinson; Peter-
borough, Dove. — Deans of the Chapel ;* Christ-
Church; Worcester; Westminster, Andreses;
St. Paul's, Ovcr.ill ; Chester, Barlow ; Salisbury,
Bridges ; Windsor. — Drs. Field ; hint:.

Moderator, king James. — Spectators, AH the
Lords of the Privy Council, whereas some at
times, interposed a few words. — Plaoe, A with-
drawing room within (he Privy chamber.

Against Conioiimiiy, Doctors Reynolds;
Sparks. — Messrs. Knewstul>s; Chaderton. —
These remaining in a room without, were not
called in the first day.

.- To omit all gratulatory preambles, as neces-
sary, when spoken, as needless, if now repeated,
we will present only the substance of this day's
Conference, his majesty thus beginning it :

His Alujvsttf. It is no novel device, but ac-
cording to the example ot all Christian princes,
f«>rkiii«:s to take the first course for the establish-
ing ol the Church, both in doctrine and policy.
To this the \ cry Heathen re!a*ed in their pro\erb,
a J..vc principtum, particilarlv in this land, king

where I sit amongst grave, learned, and reve-
rend men, not as before, else w I it re, a king
■without state, without honour, * it bout order,
where beardless boys would brave us to the face.
—And I assure you, we have not called this
Assembly tor any innovation, for we acknow-
lege the government ecclesiastical, as now it i«t
to have been approved by manifold blessing
from God himself, both for the increase of the
Gospel, and with a most happy and glorious
peace. Yet because nothing can be so ahso*
lntely ordered, but that -something may be added
thereunto, aud corruption in any state (as in the
body of man) w ill insensibly grow cither through
time or persons; and because we, have received
many complaints since our first entrance into
tins kingdom of many disorders, and much dis-
obedience to the laws, with a great falling away
to popery ; our purj>ose therefore is, like a good
physician, to examine and tiy the complaint?,
and fully to remove the occasions thereof, if
scandalous; cure them, if dangerous; and take
knowledge of them, if but frivolous, therchv to
cast a sop into Cerbcrus's mouth, that he bark
no more. For this cau«>e we have called von
bishops and deans in, severally by yourselves,
not to be confronted by the contrary opponents,
that if any thing should be found meet to be re-
dressed, it might be done without any visible
alteration. — Particularly there be some special
points wherein 1 desire to be satisfied, and which
may be reduced to three heads: 1. Concerning
the Book of Common-prayer, and divine ser-
vice used in the Church. 2. Excommunication
in ecclesiastical courts. 3. The providing of
fit and able minister* for Ireland. In the Coin-
mon-nraver Book I reouire satisfaction about
three things: — First about Confirmation : For
the vciy uame thereof, if arguing a Continuing
of Baptism, as if this sacrament without it it ere
of no validity, is plainly blasphemous. For
though at the first use thereof in the Chinch, it
was thought necessarv, that baptised infanK,
who fonnerlv had answeied hv then natriu',
should, when come to years of riiscn lion, after
their profession marie bv themst Ives, be con-
tinued with the blessing of the bishop, 1 abhor
the abtt«.e where. u it iv made a sacrament, or cor-
rohoratiiu to B-tptism. — As for Ahsoiutim. I
know not how it is used in our Church, but

lleiirv the f!t!», towards the end of his reign, al- i have heard it likened to the pope's p.irdons.

tried much, king Edward the tith m» re, ipiern
Mary reversed all, and lastly, rjii«en Elizabeth,
(of famous iin inorv) st'tth'd r-vligio'i as uow it

There be indeed two knd-. thereof from <«od :
O ic general, all prayer* "ii 1 preaching nnj.oit-
ing :m Absolution. I he o'her particular to

etandeth. — Hen in I am haj pier than they, be- \ sptcial parties, having committed a sc.und:il, and

caiof they were tain to aiter all things they
found established, whereas I -see yet no such
cause to change, as confirm what I find well
settled already. For hhvid be God's gracious
goodness, who hath brought me into the pio-
mised Lund, wheie religiiu is purely professed,

* Though all these Deans were summoned
by letters, "and present in the Presence-cham-
ber; yet only five, (viz. of the ChapcL.VVett-
niinster, Paul's, Chester and Salisbury) on the
first day were called ia.

repenting: otherwise, when Excommunication
piccedes not, in my judgment there neels no
Absolution. — Private Baptism is the third thing
whereiu I wV.uld he satisfied in the Common-
prayer: If called privati l.omthr place, I think
it agreeable with the* use of the pi motive Church ;
but. if tinned private, that any, besides a law-
ful minister, may baptise, I utterly dislike it.
[And here his Majesty grew somewhat earnest
in his expressions, against the baptising by wo-
men and bucks.]
" In the secoud Head of Excommunication,

73] STATE TRIALS, 1 Jamrs I. 1604.— respecting Reformation of the Church. [74

I offer two things to be considered of: first the
Mutter, secondly the Person*, lor the first, I
would be satisfied, whether it be executed (as
it is complained of to me) in light causes, and
that too commonly, which causeth the under-
valuing thereof. For the Person-, I would be
resolved, why Chancellors and Commissaries,'
bring laymen, should do it, and not rather the
bishops themselves, or some minister of gravity
and account, deputed by them for the more
dignity to so high and weighty a censure. As
for providing ministers for Ireland, I shall refer
it in the hist days Conference to a consultation.

* _

Abp. of Canterbury. Confirmation hath
b^f n u*ed in the Catholic Church ever since
the Apostles; and it is a very untrue suggestion
(if any have informed your highness) that the
Church of England holds Baptism imperfect
without it, as adding to the virtue and strength
thereof.

huhop of London. The authority of Con-
firmation depends not only on antiquity, and
the practice of the Primitive Church, but is an
Apostolical Institution, named in express words,
Hcb. vi. 2. and so did Air. Calvin expound the
very place, earnestly wishing the restitution
thereof in the reformed Churches. [The bishop
of Carlisle is said gravely and learnedly to have
urged the same, and the bishop of Durham
noted something out of S. Matthew for the in-
position of hands on children.]
The conclusion was this, For the fuller explana-
tion that we make Confirmation, neither a Sa-
crament nor a Corroboration thereof, their
lordships should consider whether it might not
without alteration (whereof his majesty was
still very wary) be intituled an Examination
with a Confirmation.

Abp. of C. As for the point of Absolution
(•herein your majesty desires satisfaction) it is
clear from all abu>e or superstition, as it is used
in our Church of England, as will appear on
the reading both of the Confession and Abso-
lution following it, in the beginning of the Com-
munion book. [Here the king perused both,
and returned]

His Mj. I like, and approve them, finding
it to be very true what you say.

Bp. of hand. It becometh us to deal plainly
with your Majesty. There is also in the book
a more particular and personal Absolution in
the Visitation of the Sick; [Here the dean of
the chapel turned unto it and read it.]

Bp. of Jjond. Not only the confessions of
Augusta, Boheme,«nd Saxon, retain and allow
it, but Mr. Calvin also doth approve, both such
a general, and such a private (for so he terms
it) Confe^ion and Absolution.

His Maj. I exceedingly well approve it,
being an Apostolical and Godly Ordinance,
given in the name of Christ, to one that desireth
it, upon the clearing of his conscience.
The conclusion was this, That the bishops
should consult, whether unto the rubric of the
general Absolution, these words, Remission of
fcins, might not lie added for explanation sake.
Abp. ofC. To the point of Private Baptism,

the administration thereof by women and lay-
persons is not allow ed in the practise of the
Church, but enquhed of, and censured by
bishops in their visitations.

His Mai. The words of the Book cannot
but intend a permission of women and private
persons to baptise.

Bp. of Wore. The doubtful words. may be
pressed to that meaning ; yet the Compilers of
the Book did not so intend them, as appeareth
by i heir contrary practice. But they pro-
pounded them ambiguously, because otherwise
(perhaps) the Book would not (then) have
passed the parliament.

Bp. of Lond. Those reverend men intended
not by ambiguous terms to deceive any, but
thereby intended a permission of private per*
sons to baptise, in case of necessity. Tins is
agreeable to the practice of the ancient Church,
Act. ii. when three thousand being baptised in
a day, (which for the Apostles alone to do,
was [at the least] improbable) some being
neither priests nor bishops, must be presumed
employed therein, and some Fathois arc of the
same opinion. Here he spake much, and ear*
nest I v about the necessity of Baptism.

His Maj. That in the Acts was an act ex-
traordinary, and done before a Church was
settled and grounded, wherefore no sound rea-
soning thence to a Church established and
flourishing. I maintain the necessity of Bap-
tism, and always thought the place John iii. 5.
" Except one be bom again of water,*' &c.
was meant thereof. It may seem strange to
you, my lords, that I think you in England give
too much to Baptism, seeing fourteen months
ago in Scotland, I argued with my divines
there, for attributing too little unto it ; Inso-
much that a pert minister asked me, if I thought
Baptism so necessary, that, it omitted, the child
should be damned. 1 answered, no: But if
you, called to baptise a child, though privately,
refuse to come, I think you shall be damned.—
But, this necessity of Baptism I so understand,
that it is necessary to be had, if lawfully to be
had, that is, ministered by lawful ministers, by
whom alone, and no private person in any case,
it may be administered : though I utterly dis-
like ail lle-haptization on those whom women
or laics have baptised.

Bp, if Winch. To deny private persons to
baptise in case of necessity, were to cross all
antiquity, and the common practice of the
Church, it being a rule agreed on amongst
divine*, that the miuister is not of the essence
of »he sacrament.

Hi* maj. Though he be not of the essence of
the sacrament, yet is be of the essence of the
right, and lawful ministry thereof, according to
Christ's commission to his disciples, '* Go
preach and baptihe," &c.

The result was this, To consult, whether in
the rubric of Private Baptism, which leaves it
indifferently to all, these words, Curate, or law-
ful Miuister, may not be inserted. — For the
point of Excommunication, his mojesty pro-
pounded, whether in causes of lesser moment

»«

STATE TRIALS, 1 James I. 1 60*.— Hampton Court Conference,

[70

the name might not be altered, and the same
censure retained. Secondly, whether in place
thereof unother coercion, equivalent thereunto,
mi^lil not be invented? Which all sides easily
Yielded unto, as long and often desired; and
to was the end of tiie first day's Conference.

On Monday Jan. 10, thev all met in the
same place, with all the diuns and doctors
above n j cm ion ed ; (I'atricL Galloway, minister
of Perth iu Scotland, admitted also to be there)
And hopeful prince Henry sat on a stool by his
father. The king made a pithy Speech to* the
same purpose which lie made the first day, dif-
fering only in the conclusion thereof, being an
address to the four opposers of conformity, there
present, whom lie understood the most grave,
learned, and modest of the aggrieved sort, pro-
fessing himself ready to hear at large what they
could object, and willed them to begin.

Dr. Kcyn. All tilings disliked or questioned,
may be reduced to the be four heads ;

1. That the Doctrine of the Church might
be preserved in purity, according to God's
Word. — 2. That good pastors might be planted
in all Churches to preach the same. — 3. That
the Church- government might be sincerely
ministered according to God's Word. — 4. That
the Book of Common- Prayer might be fitted to
more increase of piety. — For the first, may
your majesty be pleased, that the Book of Ar-
ticles ot Religion concluded on 15612, may be
explained where obscure, enlarged where de-
fective, \iz. Whereas it is said, Art. 16. "Af-
ter we have received the Holy Ghost, we may
depart from grace." Those words may be ex-
plained with this or the like addition. Vet nei-
ther totally, nor finally. To which end it would
do very well, if the nine orthodoxnl Assertions,
concluded on at Lambeth, might be inserted
into the Book of Articics.---Sccondly, whereas
it is said in the 23rd article, " that it is not
lawful for any iu the congregation to preach,
before he be lawfully called:" these words
ou^ht to be altered, because implying one out
of the congregation may preach,' though not
lawfully called. — Thirdly, in the 25th article
there scemeth a contradiction, one passage
therein confessing Confirmation, to be a de-
praved imitation of the Apostles, and another
grounding it on their example.

Bp, of Land. May your majesty be pleased,
that the ancient Canon may he remembered,
Schismatici contra Episcopox nun sunt uutli-
endi. And, there is unother Decree of n very
ancient council, That no man should he ad-
mitted to speak against that where unto he h:ith
formerly subscribed. — And ns for you doctor
Reynolds, and your sociatcs, how much are ye
bound to his majesty's clemency, permitting
you contrary to the statute 1 Eliz. so freely to
hpeak against the Liturgy, and Discipline esta-
blished. Fain would I know the end you aim at,
and whether you be not of Mr. Cartwright's
mind, who affirmed, that we ought in ceremo-
nies rather to conform to the Turks than to the
Papists. 1 doubt you approve his position, be-
came here appearing before hit majesty in

Turkey-gowns, not in your scholastic habits, ao
cording to the order of the universities.

His Majesty. My Lord Bishop, something
iu your passion I may excuse, and somt thing f
must, imslike. I may excuse you thus tar,
That I think you liuve just cause to be moved,
in respect that they traduce the well-settled go-
vernment, and also proceed in so indirect a
course, contrary to their own pretence, and the
intent of this meeting. 1 mislike your s>uddeu
interruption of doctor Reynolds, whom you
slipuld have suffered to have taken his liberty;
For, there is no order, nor. can be any ctlec-
tual issue of disputation, if each parly he not
suffered, without chopping, to speak at lar^e*
Wherefore, cither let the doctor proceed, or
frame your answer to his motions already made,
although some of them arc very needlets.

Bp. of Land. Upon the first motion con-
cerning Falling from Grace, may your majesty
be pleaded to consider how many in these days
neglect holiness of hie, presuming on persisting
in Grace upon Predestination, " If I shall be
saved, I slrdl be saved." A desperate doctrine,
contrary to good divinity, wherein we should rea-
son rutlier asetndendo than descendendo, from
our obedience to God, and love to our neigh-
bour, tc our election and predestination. As
for the Doctrine of the Church of England,
touching Predestination, it is in the very next
paragraph, viz. " We ritust receive God's pro-
mises in such wi.se as they be generally set forth
to us in Holy Scripture, and m our doings the
will of God is to be followed, which we have
expressly declared unto us iu the Word of
God."

His Majesty. I approve it very well, as
consonant with the place of Paul, " Work out
vour salvation with fear and trembling." Yet
let it be considered of, whether any thing were
meet to be added for clearing of die doctor's
doubt,- by putting in the word often, or the like.
Mean time, I wish that the doctrine of Predes-
tination may be tenderly handled, lest on the
one side God's omuipoteucy be questioned by
impeaching the doctrine of his eternal Predes-
tination, or on the other side a desperate pre-
sumption a r reared, by inferring the necessary
certainty of persisting in Grace.

Bp. of Loud. The second Objection of the
doctor's is vain, it being the doctrine and prac-
tice of the Church of England, that none but i\
licensed minister may preach, nor administer
the Lord's Supper.

His Majesty. As for Private Baptism, I
have already with the bishop* taken order for
the same.

Then came they to the 2nd point of Confirm-
ation, and upon the perusal ot the words of the
Article, his majesty concluded the pretended
contradiction u cavil.

Bp. of Ijond. Confirmation is not so much
founded on the place in the Acts of the apostles,
but upon Ileb. vi. 2. which was the opinion,
l»esidej the judgment of the Fathers, of Mr.
Calvin, and doctor Fulk ; neither needeth there
any farther proof, seeing (at I suppose) he that

77] STATE TRIALS, 1 James I. tf<)4.— rafectin^ Reformation rfthe Church. [7S

objected this holds not continuation unlawful ;
but he and his party are >exed that the use
thereof is not in their own hands, for every
vaster to continn his own parish ; for then it
would he accounted un Apostolical institution,
it Dr. Reynolds were pleased but to speak his
thoughts therein.

Dr. llryn. Indeed seeing some didcese of a
l.ih^p hath therein six hundred Parishes, it is
•* tiling very inconvenient to permit Confirma-
tion to the bishop alone ; and I suppose it im-
possible that he can tuke due examination of
ti*m all which come to lie confirmed.

Bp. of Land. To the matter of fact, I an-
swer, that bishops in their Visitations appoint
either their chaplaius, or some other ministers,
to examine them which are to be confirmed,
aad lightly confirm none but by the testimony
ct'die parsons uiid curates, where the children
;ire bred and brought up. — To the Opinion I
rawer, that none of all the Fathers ever ad-
mitted any to confirm but bishops alone. Yea,
eren St. Jerome liim self (otherwise no friend to
bishops) confessed) the execution thereof was
restrained to bishops only.

Bp. of Winch. Dr. Reynolds, I would fain
lave you, with all your learning, shew wherever
Coohrmution was used in ancient times by any
ether bishops; These used it partly to examine
children, and after examination by imposition
of hand* (the Jewish ceremony of blessing) to
Ueu and pray over them ; and partly to try
whether they had been baptised in the right
tuna or no. For in former ages some baptised
•'i>they ought) in the name ol the Father, Son,
tad Holy Ghost. Some (as the Arians) in the
ume of die Father as the greater, and the Son
ia th* less. Some in the uuine of the Father by
fee Son, in the Holy Ghost. Some not in the
name of the Trinity, but only in the Death of
Christ. WliereujM)n Catholic bishops were con-
tained to examine them who were baptised in
nttolis, concerning their Baptism, if right to
C9£i:rm them, if amiss to instruct them.

tib Majesty. 1 dissent from the judgment
<i S.Jerome in his assertion, that bullous are
£4t of divine ordination.

Bp. of Land, Unless I could prove my Or-
^•'tsiion lawful out of the Scriptures, I would
uf. be a bishop four hours longer.

Ha Mo it sty. 1 approve the calling and use
rflj^hops in the Church, and it is my aphorism,
1 Xo B:*hop, No King ;* nor intend I to take
(/m£ i illation from the bishops, which they have
it «jng enjoyed. Seeing as great reason that
i.nt thould confirm, as that none* should
) rtfech without the bishop's license. But let it
U referred, whether the word Examination
wd* not to he added to the ru brick in the title
"iX'jfifjrroation in the Communion-hook. And
to* Dr. Reynolds you may proceed.

Dr. Reyti. I protest I meant not to gall any
ain, tlioueh I perceive some took personal ex-
ception* at my words, and desire the imputu-
Urn of schism may not be charged upon me.
1o proceed on die 37 th Article, wherein are
lk« words* " The Bishop of Rome hath no

authority In this land." These are not sufficient,
unless it were ad Jed, nor ought to have any.

His Majesty. Hubvmus jure, quod habemut,
and therefore in as much as it is said he lmth
not, it is plain enough that he ought not to
have.

Here passed some pleasant discourse betnixt
the king and lords about puritans, till returning
to seriousness : There be jam the

Bp. of Loud. May it please your majesty
to remember the Speech of the French ambas-
sador, monsieur Rcgnee, upon the view of our
solemn service and ceremony, viz. That if the
Reformed Churches in France had kept the
same order, there would have been thousands
of Protestants more than there are.

Dr. Keyn. It were well if this proposition
might he added to the Book of Articles. < The
intention of the minister is not of the essence
of the sacrament,' the rather, because tome in
England have preached it to lie essential ; and
here again I could desire that the nine oitho-
doxal Assertions concluded at Lambeth, may
be generally received.

His Maj. I utterly dislike the first part of
your motion, thinking it unfit to thrust into the
Book of Articles every position negative, which
would swell the book into a volume as big as
the Bible, and confound the reader. Thus
one M. Craig in Scotland with his, I renounce
and abhor his multiplied detestations avid abre-
nuntiations, so amazed simple people, that not
able to conceive al! their tilings, they fell back
to popery, or remained in their former igno-
rance. If bound to this form, the confession of
my faith must be in my table-book, not in my
head.— Because you speak of Intention, I will
apply it thus. If you come hither with a good
intention to be informed, the whole work will
sort to the better effect : But if your intention
be to go as you came, whatsoever shall be said,
it will prove the intention is very material and
essential to the end of this present action. — As
for the nine Assertions you speak of, I cannot
suddenly answer, iu,t knowing what those Pro-
positions of Lambeth be.

lip. of Land. May it please your majesty,
this was the occasion of them, by reason of
some controversies arming in Cambridge about
certain points of divinity, my lord's grace as-
sembler! some divines of special note to set
down thi'ir Opinions, which they drew into
nine Assertions, and so sent them to the Uni-
versity for the appeasing of those quarrels.

His Maj. When such questions arise
amongst scholars, the quietest proceedings were
to determine them in the Uuiversitv, and not
to stuff the Book of Articles, with all Conclu-
sions theological. — Secondly, the better course
would he to punish the broudiers of false doc-
trine, than to multiply Articles, which, if never
so many, cannot pi event the contrary opinions
of men till they be heard.

Dean of Pauls. May it please your majesty,
I am nearly concerned in this matter, by rea-
son of a Controversy betwixt me and some
other in Cambridge, upon a Proposition which

79]

STATE TRIALS, 1 James I. lfi(H.— Hampton Court Conference,

[80-

I there delivered, namely, that whosoever
(though before justified) did commit any griev-
ous bin, as adultery, murder, &c. do become
ipso facto, subject to God's wrath, and guilty
of damnation, quoad pnexentam statum, until
they repent. Yet, so that those who are justi-
fied according to (lie purpose of God's Election
(though they might fill into grievous sin, and
thereby into the present estate of damnation)
Vet never totally nor finally from Justification ;
but were in time renewed -by God's spirit unto
a lively taith and repentance. Against this
doctrine some did oppose, teaching that per-
sons once truly justified, though falling into
grievous sins, remained still in the state of Jus-
tification, before they actually relented of these
sins ; yea, and though they never repented of
them through forget fulness or sudden death,
they nevertheless were justified and sived.

His Maj. I dislike this doctrine, there be-
ing a necessity id" conjoining repentance and
holiness of liie with true taith, and that is hy-
pocrisy, and not justifying faith, which is sever-
ed from them, lor although Predestination
and Election depend not on any qualities, ac-
tions, or works of man which are mutable, but
on God's eternal Decree : yet such is the ne-
cessity of Repentance after known sins com-
mitted, that without it no Reconciliation with
God, or Remission of Sins.

Dr. Hcj/n. The Catechism in the Common
Prayer-Book is too brief, and that by Mr.
Nowel (late dean of Pauls) too long for novices
to learn by heart. 1 icqucst therefore that one
uniform Catechism may be made, and none
other generally received.

His Maj. I think the doctor's request vcrv
reasonable, yet so, that th/1 Catechism may be
made in the fewest and plainest uliirinutive
terms that may be, not like the many ignorant
Catechisms in .Scotland, set out by every one
who was the Son of a good man ; insomuch
that what was Catechism-doctrine in one con-
gregation, was scarcely received as orthodox in
another ; and herein I would have two rules
ob.seived : Fir*t, That curious and deep qiu s-
tions be avoided in the fundamental instruc-
tion of a people, secondly, That there should
not be so geuer.d a departure from the papists,
that every thin-; should be accounted an error
wherein we agree win them.

Dr. fti un. Great is the profanation of the?
Sabbath day, and contempt of your majesty's
Proclamation, winch 1 earnestly desire may be
reformed.

This in.iti »n found an unanimous consent.

Dr. Rti/ti. May your majesty be pleased
that the llibic be new translated, such as are
extant not answering the original, and he in-
*taiioe i in three pa-titulars.

Gai. >v. '2'>. — In tiu m-i^iual, fum^u; ill-trans-
luted, Borderrrth. — Ps. cv. Uli. Orig. They
werenoi d - >bedient; ill-trans., Tliev were
not onrdient. — Ps. cvi. 30. Orig. Phine-
has executed judgment ; ill-trans., Plu-
nehus prayed.

Bp.ofLand* If every aiiii's haiQQur ought be

followed, there would be no end of translating. •

Hit Maj. I profess I could neter yet see a
Bible well translated in English ; but I think,
that of all, that of Geneva is the worst. I wUh
some special pains were taken for an uniform
translation ; which should be done by the best
learned in both Universities, then reviewed by
the bishops, presented to the privy council,
lasilv ratified by royal authority, to be read in
the whole church, and no other.

Bp. of Lo'td. But ii: is tit that no marginal
note* should be added thereunto.

His Maj. That caveat is well put in, for in
the Geneva translation, some notes are partial,
untrue, seditious, and savouring of traitorous
conceits : As, when from Kxodus i. IP. Diso-
bedience to kings is allowed in a marginal note.
And 2 Chron. xv. lti, king Asa taxed in the
note for only deposing his mother for idolatry,
and not killing her. To conclude this point,
let errors, in matters of faith, be amended, and
indifferent things be interpreted, and ;: uloss
added unto them. For as Barnlu* dc Neguo
saith, that a king with some weakness, is better
than still a change ; so ratl-er a ( imrcli with
some faults, than an innovation. And surelv,
it these were the greatest mutters that grieved
you, I need not have been troubled with such
importunate complaints.

Dr. lteyn. May it please your majesty,
that unlawful and seditious books be suppress-
ed, such as Ficlerus, a Papist, Dc Jure Magi*-
liatu$ in Su bd it as, applied against the late
queen for the Pope.

Bp. of Land. There is no such licentious
divulging of those books, and none have liber-
ty, by authority, to buy them, except stub us
Dr. Reynolds, who was supposed would con-
fute them. And, if such books come into the
realm by secret conveyance-, perfect notice
cannot be had of their importation. Besides,
Ficlerus \va- a great disciplinarian, whereby it
appears what advantage that sort gave unto
the Papists, who, mutatis person it, apply their
own arguments against princes of their reli-
lmoi), thoimh fonnv part 1 detest both the au-
thor and upplier alike.

The Ld. Cecil. Indeed the unlimited liberty
of dispelling Popish and seditious pamph!<ts
in PauU Church-yard, and both the Universi-
ties, hath done much miM'hief; but especially
| oiiecali'.kii Speculum Tn/gicum.

Hit Muj. That is a dangerous book indeed.

L. H. Howard. Both for matter and inten-
tion.

L. Chan. Of such Books, some are Latin,
some are English, but the last dispersed do most
harm.

Surcf. Cecil. But tny lord of London (and
no man else) hath done what he cjuld to sup-
press thrill.

His Muj. Dr. Reynolds, vim are a better
college-man than a states-man, if meaning to
tax the bishop of Ixiudon for MiiTcring those
books, between the Secular Priests and Jesuits,
to be published, which he did by warrant from
the council, to nourish a schism betwixt them.

$1] STATE TRIALS, V James I. \(m.—rtsperting Rtformation qf the Church. [82

Li. Cecil. Such books were tolerated, be-
cause by them tiie title of Spain was confuted.
Li. Treasurer. And because therein it ap-
pear*, by the testimony of the priests them-
selves, that no Papists are put to death, for
conscience only, but for treason.

Dr. Hryn. Indeed I meant not such books
as were printed in England, but only such as
cane from beyond the seas. And now to pro-
ceed to the second general point, concerning
tit planting of learned ministers, I desire they
be in every parish.

His Maj. I have consulted with my bishops
about it, whom I have found willing -and ready '
kerait : but, as subita evacuutio is per icu losa ;
so twbUa mutatto: It cannot presently be per-
formed, the Universities not affording them.
And, yet tney afford more learned men, than the
mum doth maintenance, which must be first
provided. In the mean time, ignoraut minis-
ters, if young, are to be removed, if there be '
ao nope of amendment; if old, their Heath
must be expected, because Jerusalem cannot
be built up in a day.

Bp. of Winch. Lay patrons much cause the
iasumciency of the clergy, presenting mean
derks to their cures (the law admitting of such 1
sufficiency) and, if the bis hop refuser h them,
presently a quart impedit is sent out against
Las.

Bp. of Land. Because this I sec is a time
of moving Petitions, may 1 humbly present two
er three to your majesty: First, That there
nay oe amongst us a praying ministry, it being j
now come to pass, thai men think it is the
aaly duty of ministers to spend their time in
the pulpir. I confess, in a Church newly to be
piftnted, preaching is most necessary, not so in
uoe long established, that prayer should be
neglected.

His Maj. I like your motion exceeding well,
sad dislike the hypocrisy of our time, who
place all their religion in the ear, whilst
prayer (so requisite and acceptable, if duly
performed) is accounted and used as the least
part of religion.

Bp. of L-nd. My second motion is, that
■nil learned men may be planted in every con-
pen' ion, jrp-tly homilies may be read therein.

Btt Maj. 1 approve your motion, especially
•hc:e the living is not oumcicnt for the main-
tenance of a learned preacher. AJso, where
there be multitudes of sermons, there I would
ha\e homilies read divers times. [Here the
king aked the assent of the plaiutiffs, and they
confessed it.]

A preaching ministry is best, but where it
may not be had, godly prayers and exhorta-
tions do ujuch good.

Li. Chan. Livings rather want learned
■en, than learned men livings ; many in the
rnivemties pining for want of places. I wish
therefore some may have single coats (one living)
leJore cithers have doublets (pluralities). And
thai method I have observed in bestowing the
uar s benefices*
Bp sf Lomd. I commend your honourable

care that way ; but a doublet is necessary in
cold weather.

Ld. Chan. I dislike not the liberty of our
church, in granting to one man t ■ o benefices,
but speak out of mine own purpose nnd prac-
tice, grounded on the aforesaid reason.

Bp. of Lond. My Ust motion is, tiiat Pul-
pits may not be made Pasquils, wherein every
discontented fellow may traauce his superiors.

His Maj. I accept what you offer, for the
Pulpit is no place of personal reproof, let them
complain to me, if injured.

Bp. if Lond. If your majesty shall leave
yourself open to admit oi' all complaints, your
highness shall never be quiet, nor your under-
ofticers regarded, whom every delinquent, when
censured, will threaten to cninphtiu' of.

His Maj. J mean they shall complain to
me by degrees, first to the Ordinary, from him
to the Archbishop, from him to the lords of
the council ; and, if in all these no remedy be
found, then to myself.

Dr. Ret/n. I come now to Subscription, as
a great impeachment to' a learned ministry,
and therefore in treat it may not be exacted at
heretofore : for which many good men are kept
out, though otherwise willing to subscribe to
the Statutes of the Realm, Articles of Reli-
gion, and the King's Supremacy. The reason
of their backwardness to subscribe, is, because
the Common-prayer enjoineth the Apocrypha
books to be read in the church, although some
chapters therein contain manifest err ours re-
pugnant to Scripture. For instance, Ecclus.
xlviii. 10. Elias in person is said to come before
Christ, contrary to what is in the New Testa-
ment. Mat. xi. 14. Luke i. 17. of Elias in re-
semblance, that is, John the Baptist.

Bp. of Lond. Most of the objections against
those books, are the old cavils of the Jews,
renewed by S. Jerome (who first called them
Apocripha) which opinion, upon Rurfinus his
challenge, he, after a sort, disclaimed.

Bp. of Winch. Indeed S. Jerome saith, Ca~
nonici sunt ad informundos mores non ad con-
firmandam fidem.

His Maj. To take an even order betwixt
both, I would not have all canonical books read
in the church, nor any chapter out of the Apo-
crypha, wherein any error is contained; where-
fore let Dr. Reynolds note those chapters in
the Apocrypha Looks, wherein those offences
are, and bring them to the abp. of Canterbury
against Wednesday next; and now Doctor, pro-
ceed.

Dr. Reyn. The next scruple against Sub-
scription, is, because it is twice set down in the
Common- prayer- book, Jesus said to his disci-
ples, when by the text in the original, it is
plain, that he spake to the Pharisees.

His Maj. Let the word Disciples be omit-
ted, and the words, Jesus said, be printed in a
different letter.

Mr. Kncustub. I take exceptions at the
Cross in Baptism, whereat the weak brethren
are offended, contrary to the counsel of the
apostle, Romans xiv, 2 Corinth, viii.
G

83] STATE TRIALS, Uames I. 1(304— Hampton Court Conference,

[84

His Mtij. Distingue tempora, <$• concorda-
bunt Scripture, great the difference betwixt
those times and ours. Then, a Church not
fully settled ; now, ours long established. How
long will such brethren he weak ? Are uot
forty-live years sutbeient tor them to grow
strong in ? Besides, who prett rids this weak-
ness? We require not Subscriptions of luicks
and ideots, but of preachers and ministers, who
arc not still (I trow) to be fed with milk, being
enabled to feed others. Some of them are
strong enough, if not head-strong; conceiving
themselves able enough to teach him who last
spake for them, and all the bishops in the hind. •

Mr. Kncwst. It is questionable whether
the Church hath power to institute an outward
significant sign.

lip. of Land. The Cross in Baptism is not
used otherwise than a ceremony.

Dp. of Winch. Kneeling, lifting* up of the
hands, knocking of the breast, are significant
ceremonies, and these may lawfully be used.

]). of the Chap. The Kahbins write, That
the Jews added both signs and words at the in-
stitution of the Passover, viz. when they eat
sour herbs, they said, ( Take and eat these in
remembrance,' &c. When they drank wine,
they said, ' Drink this in remembrance/ &c.
Upon which addition, and tradition, our Saviour
instituted the Sacrament of his last Supper,
thereby approving, a Church may institute and
retain a sign significant.

His Maj. I am exceedingly well satisfied
in this point, but would be acquainted about
the antiquity of the use of the Cross.

Dr. liej/n. It hath been used ever since the
Apostles time; but the question is, how ancient
the use thereof hath been in Baptism.

D. of Wtstm. It appears out of Tertullian,
Cyprian, and Origen, that it was used in im-
mor/ali lavacro.

Bu. of Winch, In Constantine'* time it was
M?ea in Baptism.

Hit Maj. If so, I see no reason but that
we may continue it.

Mr. Kncwst. Put the case the Church hath
power to add significant signs it may not add
them where Christ hath already ordained them,
which is as derogatory to Christ's institution,
as if one should add to the great seal of Eng-
land.

His Maj. The case is not alike, seeing the
Sacrament is fully finished, before any mention
©f the Cross is made therein.

Mr. Knevst. If the Church hath such a
power, the greatest scruple is, how far the or-
dinance of the Church bindeth, without im-
peaching Christian liberty.

His 'Mtij. I will mil an;ue that poiut with
you, but an*wer a* kings in parliament, Lr. Roy
i'uxixt'va; This is like Mr. John Black, a beard-
less boy, w ho told me, the last Conference in
Scotland, (T)cc. 160',!,) that he would hold con-
formity with his majesty in matters of Doctrine;
but every man for Ceremonies was to he left
to his own liberty. But I will have none of
that, I will have one Doctrine, one Discipline,

one Religion, in substance, and in ceremony.
Never speak more to that point, how far you
ate hound to obey.

Dr. Reyn. Would that the Cross, being
supcrstitioubly abused in P«#pery, were aban-
doned, as the Brazen Serpent was stamped to
powder by ilezekias, because abused to idola-
try.

His Muj. In as much as the Cross was
abused to superstition in time of Popery, it
doth plainly imply that it was well used before.
I detest their courses, who peremptory disal-
low of all things, which have been abused in
Popery, and know not how to answer the ob-
jections of the Papists, when they charge us
with novelties, but by telling them, we retain
tlie primitive use of thing*, and only forsake
their novel corruptions. Secondly, no resem-
blance betwixt the Brazen Serpent, a material
visible thing, and the sign of the Cross, made
in the air. Thirdly, Papists (as 1 am informed)
did never ascribe any spiritual Grace to the
Cross in Baptism. Lastly, material Crosses, to
which people fell down in time of Popery (as
the idolatrous Jews to the Brazen Serpent) are
already demolished, as you desire.

Mr. Kncwst. I take exception at the wear-
ing of the Surplice, a kind of garment used by
the priests of Isis.

His Maj. I did not think, till of late, it had
been borrowed from the Heathen, because
commonly called a rag of Popery. Seeing now
we border not upon heathens, neither are any
of them conversant with, or commorant amongst
us, thereby to be continued in Paganism ; I §ee
no reason but for comeliness-sake, it may be
continued.

Dr. llcyn. I take exception at these words
in the Marriage, * with my body I thee wor-
ship.*

His Maj. I was made believe, the phrase
imported no le*>s than divine adoration, but find
it an usual English term, as when we sav, ( a
gentlcmnn of worship/ and it ngreeth with the
Scriptures, * giving honour to the wife.' As for
you, Dr. Reynolds, many men speak of Robin
Hood, who never shot m his bow. (This the
king spake smiling.) it' you had a good wife
yourself, you would think all worship and ho-
nour you could do her, were well bestowed on
her.

D. nfSitrum. Some take exception at the
Ring in Marriage.

Dr. Riyn. 1 approve it well enough.

HU M«j. I was married with a Ring, and
think others scarce well married without it.

Dr. Rtyn. Some take exceptions at the
Churching of Women, by the name of Purifi-
cation.

His Muj. I allow it very well, women be-
ing loath of themselves to come to church, I
like this, or any other occasion to draw them
thither.

Dr. Rcyn. My last exception is against
committing Ecclesiastical Censures to lay-chan-
cellors, the rather, because it was ordered,
anno 137 1, that lay-chance Uors, in matters of

13] STATE TRIALS, 1 James I. ~]604._ respecting Reformation cfihe Church. [80

Correction, and anno 1589, in matters of In-
stance, should not excommunicate any, but be
done, only by them who had power of the
Keys, though the contrary is commonly prac-
tised.

Hit Maj. I have conferred with mv bishops
about this point, and such order shall be taken
therein as is convenient. Mean time go on to
fume other matter.

Dr. Rcyn. I desire, that according to cer-
tain provincial constitutions, the clerev may

re meetings every three weeks. — 1. First in
Roral Deaneries, therein to have prophesying,
ts arch-bishop Griudall, and other bishops, de-
sired of her late majesty. — 2. 1 hat such things
is could not be resolved on there, might he
referred to the arch-deacons visitations. — 3.
And so to the Episcopal Synod, to determine
such points before not decided.

His Maj. If you aim at a Scottish Presby-
tery, ic agree th as well with monarchy, as God
and the devil. Tlien Jack, and Tom, "and Will,
and Dick, shall meet and censure me and my
council. Therefore I reiterate my former
speech, Le Roy s'uvisera ; Stay, I pray, for
one seven years, before you demand, and then
if you find me grow pursy and fat, I may, per-
chance, hearken unto you, for that government
will keep me in breath, and give me work
enough. I shall speak of one matter more,
somewhat out of order, but it skilleth not; Dr.
Reynolds, you have often spoken for my Supre-
macy, and it is well : but know you any here,
or elsewhere, who like of the present govern-
ment ecclesiastical, and dislike my Supremacy ?

/Jr. Ret/n. I know none.

*

His Maj. Why then I will tell you a tale :
liter that the religion restored by king Edward
the sixth, was soon overthrown by queen Mary
here in England, we in Scotland felt the effect
of it. For thereupon Mr. Knox writes to the
queen regent (a virtuous and moderate lady)
telling tier that she was the supreme head of
die Church ; and charged her, as she would
uwrer it at God's tribunal, to take care of
Christ his Evangil, in suppressing the Popish
Prelates, who withstood the same; but how
nog trow you did this continue ? Even till by
Iter authority, the Popish bishops were repress-
ed, and Knox, with his adherents, being brought
io, made strong enough. Then began they to
make small account of her supremacy, when,
Jwrording to that more light, wherewith they
were illuminated, they made a farther refor-
mation of themselves. How they used the
Poor lady my mother, is not unknown, and
L»/w they dealt with me in mv minority. I
thus apply it. My lords, the bishops, I may
[This hs said putting his hand to his hat]
thank you that these men plead thus for my
Supremacy. They think they cannot make
th<*ir party good against you, but by appealing
cnto it; hut if once you were out, and they in,
1 know what would become of my Supremacy,
hr No Bishop, No King. I have learned of
»1 at cm they have been, who, preaching before
me, sine* my coming into England, passed

over, with silence, my being Supreme Governor
in causes ecclesiastical. Well, doctor, have you
any thing el-re to say ?

Dr. lieyn. No more if it please your ma-
jesty.

His Maj. If this be all your party haih to
siay, I will iuake them conform themselves, or
else I will harrie them out of the land, or eke
do worse.

Thus ended the second day's Conference,
and the third began on the Wednesday follow-
ing, Jan. 18, many knights, civilian?, and dor-
tors of the law, bei"? admitted thereunto, be-
cause the High Commission was the principal
matter in debate.

His Maj. I understand, that the parties
named in the High Commission ore too nvmv,
and too mean, and the matters they deal with,
base, such as ordinaries at home in their courts
miuht censure.

Abp. of Cant. It is requisite their number
should be many, otherwise I should be forced
oft en-times to sit alone, if in the absence of the
lords of the council, bishops, and judges at law,
some deans and doctors were not put into that
Commission, whose attendance 1 might com-
mand with the more Authority : I have often
complained of the meanness of matteis handled
therein, but cannot remedy it. For though the
offence be small, that the Ordinary may, the
offender oft-times is so great, and contuma-
cious, that the Ordinary dare not punish him,
and so is forced to crave help at the High Com-
mission.

A nameless Lord. The proceedings in that
court, are like the Spanish Inquisition, wherein
men are urged to subscribe more than law re-
quired!, and by the oath ex officio, forced to
accuse themselves, being examined upon twenty,
or twenty four Articles on a sudden, without
deliberation, and for the most part against
themselves. — In proof hereof, he produced a
Letter of an amient honourable counsellor, An.
1584, verifying this' usage to two ministers iu
Cambridgeshire.

Abp. of Cant. Your lordship is deceived in
the manner of proceeding ; for, if the Article
touch the party for life, liberty, or scandal, he
may refuse to answer; I can say nothing to
the particulars of the letter, because twenty
years since, yet doubted not, but at leisure, to
give your lordship satisfaction.

Lord Chan. Th^re is necessity, and use of
the oath ex officio, in divers courts, and causes.

His A/ry. Indeed civil proceedings only
punish facts ; but it is requisite that Fame and
Scandals be looked unto in courts ecclesiastical,
and yet great moderation is to be used therein.
1. In grui'ioribtts criminibus. 2. In such
whereof there is a public fame, caused by
the inordinate demeanour of the offender. —
And here he soundly described the oath ex
offiao, for the ground thereof, the wisdom of
the law therein, the manner of proceeding
thereby, and profitable effect from the same.

Abp. of Cant. Undoubtedly your majesty
speaks by the special as&istanca of God's spirit.

87] STATE TRIALS, 1 James I. 1604— Hampton Court Conference,

[8»

Bp. of Loud. I protest ray heart melteth
with joy, that Almighty God, of his singular
mercy, hath given us such a king, as, since
Christ's time, the like hath not been.

The;i passed there much discourse between
the king, the bishops, and the lords, about. the
quality of the persona, aud causes in the High
Commission, rectifying Excommunications in
mailers of less moment, punishing Recusants,
providing Divine^ for Ireland, Wales, and the
Northern Borders. Afterwards the four preach-
ers were called in, and such alteration* in the
Liturgy were read unto them, which the bishops,
by the kmg's advice, had made, and to which,
by their silence, they seemed to consent.

His Mnj. l.see the exceptions against the
Communion-book, are matters of weakness,
therefore if the persons reluctant be discreet,
they wdl be won betimes, and by good persua-
sions : if indiscreet, better they were removed,
for by their factious many are driven to be
, Papists. From you Dr. Reynolds and your
associates, I expect obedience and humility
(the marks of honest and good* men) and that
you would persuade others abroad by your
example.

Dr. lifyn. We here do promise to perform
all duties to bishops sw reverend fathers, and to
join with them against the common adversary
for the quii»t of the Church.

Mr. C builer! on. 1 request the wearing of the
Surplice, and the Cross in Baptism may not be
urged on some godly ministers in Lancashire,
fearing, if forced unto them, many won by their
preaching of the Gospel will revolt to Popery,
and r particularly instance in the vicar of
Hsitsdvdc.

Abp. of Cant. You could not have light
upon n worse, for not many years ago (as my
lord chancellor knows) it was proved before me,
tha$ by Ins unrevefent usage of the Eucharist
(dc-iiii^ the bread out of a bucket, every man
putting ;n his hand, and taking out a piece) he
nm k inuiy lo«ith the Communion, and refuse
to (Min«» to Church.

J/m 'Maj, It is> not my purpose, and I dare
sav a id not the bi*hops intent, presently, and
out or hand, to enforce thc»e things, wilhout
father! v- 1 1 '.monitions, conferences, and persua-
sions, »: viiised ; but I wish it were examined,
whether >vc'-. Lancashire ministers, by their
pains atirl . • i hing, have converted any from
Popery, and withal be men*of honest life, and
quiet conversation. If so, let letters be written
to the bishop of Chester [Rich.. Vauuhan,
Afterwards bishop of Lnnd<«n| (who if* a grave
aud good man) to that purpose, that some
favour may be afforded unto them, and let the
lord archbishop write the letters.

Bp. of Ijond. If this be granted, the copy
of these Letters vtill fly all over England, and
then nil non-conformists will mule the like
request, und so no fruit follow of t^iis Confer-
ence, but things will be worse than they were
before. I desire therefore a time may be
limited, within the compass whereof they shall
conform.

His Moj. I assent thereunto, and let the
bishop of the diocese set down the time.

Mr. Kncwst. I request the like favour of
forbearance to some honest ministers in Suffolk.
For it will make much against their credits in
the country, to he now forced to the Surplice,
and Cross in Baptism.

Abp. of Cant. Nay, sir

His tilaj. Let me alone to answer him.
Sir, you shew yourself an uncharitable man.
We have here taken pains, and, in the end,
have concluded on unity and uniformity, and
you, forsooth, must prefer the credits oft a few
private ineu before tne peace of the Church.
This is just the Scotch argument, when any
thing was concluded, which disliked some hu-
mours. Let thein either conform themselves
shortly, or they shall hear of it.

Ld. Cecil. The indecency of Ambulating
Communions, is very offensive, and hath driven
many from the Church.

Bp. of Land. And Mr. Chaderton, I could
tell you of Sitting Communions in Emanuel
college.

. Mr. Chad. It is so, because of the scats so
placed as they be, and yet we have some
kneeling also in our chapel.

His Muj. No more hereof for the present,
seeing they have jointly promised hereafter to
be quiet and obedient. — Whereat he rose up
to depart into an inner chamber.

Bp. of Lond. God's goodness be blessed
for your majesty, and give health and prosperity
to "your highness, your gracious queen, the
young prince, and all the royal issue.

Thus ended the three days Conference,
wherein how discreetly the, kiug carried him-
self, posterity (out of the reach of flattery) is
the most competent judge, such matters being
most truly discerned at distance. It is gene-
rally said, that herein he went above himself;
that the bishop of London appeared even with
himself, and T)r. Reynolds fell much beneath
himself. Others observed that abp. Whitgift
spake most gravely ; Bancroft (when out of
passion) most politicly ; Bilson, most learned-
ly. And of the divines, Mr. Reynolds most
largely ; Knew stubs most affectionately ; Cha-
derton most sparingly. In this scene, only
Dr. Sparks was &$&» *p*mw*, making use of
his hearing, not speech, converted (it seems)
to the truth of what was spoken, and soon after
setting forth a Treatise of Unity and Unifor-
mity.— But the nonconformists complained,
that the kipg sent for their divines, not to have
ihcir ^cruples satisfied, but his Pleasure pro-
pounded ; nor that he mi^ht know what they
couid say, hut they what he would do, in the
matter. Betides, no wonder if Dr. lirynulds
a little lost himself, whose eyes uere partly
dazzled with the light of the king's majesty,
partly daunted with the he.it of his displeasure.
Others complain, that this Conference is par-
tially set foith only hy Dr. B.irlow, dean of
Chester, their pr»tVssed adversary, to the crent
disadvantage of their divines. And when the
Israelites go down to the Philistines, to whet all

»] STATE TRIALS, 1 James L 1604.— respecting Reformation of the Church. [90

may be removed, some amended, tome quali-
fied.—1. In the Church Service. That the
Cross in Baptism, Interrogatories ministered to
infants, Confirmation, as superfluous, may be
taken away. Baptism not to be ministered by
women, and so explained. The Cap and Sur-
plice not urged. That Examination may go -
before the Communion. That it he ministered
with a sermon. That divers terms of Priests,
and Absolution, and some other used, with the
King in Marriage, and other such like in thq
Book, may he -corrected. The long-someness
of Service abridged. Church songs, and Mu-
sic moderated to better edification. That the
Lord's day be not profaned. The rest upon
Holy days not so strictly urged. That there
may be an uniformity of doctrine prescribed.
No Popish opinion to be any more taught, or
defended. No ministers charged to teach
their people to bow at the name of Jesus.
That the canonical Scriptures only be read in
the Church. — 2. Concerning Church Ministers.
That none hereafter he admitted into the mi-
nistry, but able and sufficient men, and those
to preach diligently, and especially upon the
Lord's day. That such as be already entered,
and cannot preach, may either be removed,
nud some charitable course taken with them
for their relief; or else to be forced, according
to the value of their livings, to maintain
preachers. That Non-Residence be not per-
mitted. That king Edward's statute, for the
lawfulness of Ministers Marriage, be revived.
That ministers be not urged to subscribe, but,
according to the law, to the Articles of Reli-
gion, and the king's supremacy only. — 3. For
Church Livings, and Maintenance. That bi-
shops leave their Comuiendams; some holding
prebends, some parsonages, some vicarages with
their bishoprics. That double beneficed men be
not suffered to hold, some two or three Benefices
with Cure : and some, two, three, or four Dig-
nities besides. That Impropriations annexed
to bishoprics and colleges, be demised only to
the preachers incumbents, for the old rent.
That the Impropriations of Laymen's fees may
be charged with a sixth or seventh part of the
worth, to the maintenance of the preaching
minister. — *. For Church Discipline. That the
Discipline, and Excommunication may be admi-
nistered according to Christ's own institution : -
or at the least, that enormities may be redress-
ed. As namely. That excommunication come
not forth under the name of lay-persons, chan-
cellors, officials, &c. That men be not excom-
municated for trifles, and twelve- penny matters.
That none be excommunicated without con-
sent of his pastor. That the officers be not
suffered ro extort unreasonable fees. Thit
none, h;iving jurisdiction, or registers place*,
put out the same to farm. That divers Popish
Canons (as for restraint of marriage at certain
times) be reversed. That the longsoineness of
suits in ecclesiastical courts (which hang some*
times two, thiee, four, five, six, or seven years)
may be restrained. That the oath ex officio,
whereby men are forced to accuse themselves.

their iron tools, no wonder if they set a sharp
edge on their own, and a blunt one on their ene-
mies weapons. — ThisConference produced some ,
alterations in the Liturgy, woinens baptizing of
ia&nts, formerly frequent, hereafter forbidden ;
to the rubric of Absolution, Remission of Sins
inserted, Confirmation termed also an Exami-
mation of Children, and some words altered in
tke Dominical Gospels, with a resolution for a
new Translation of the Bible. But whereas it
ms hitherto disputable, whether the north,
wsere lie long lived, or the south, whither he
My came, should prevail most, on the king's
judgment, in Church-government ; this doubt
was now clearly decided. Hence forward
■any cripples in conformity, were cured of
their former halting therein, and such, wklf
knew not their own, till they knew the king's
nind in this matter, for the future, quietly
digested the Ceremonies of the Church.

The following is the Millenary Petition.

" The humble Petition of the Ministers of the
Church of England, desiring Reformation
of certain Ceremonies, and Abuses of the
Church.
u To the most christian, and excellent prince,
oar gracious and dread sovereign, James by
the grace of God, &c. We the Ministers of
the Church of England, that desire Reforma-
tion, wish a long, prosperous, and happy
reign over us in this life, and in the next
everlasting salvation.

u Most gracious and dread Sovereign ; Seeing
it bath pleased the Divine Majesty, to the
great comfort of all good Christians, to advance
jw highness, according to your just title, to
fee peaceable government of this Church and
Coatmon-wealth of England : We the Minis-
ters of the Gospel io this land, neither as fac-
tions men, affecting a popular parity in the
IWcb, nor as schismatics aiming at the disso-
lution of the state ecclesiastical ; but as the
fahfal servants of Christ, and loyal subjects
to toor majesty, desiring and longing for the
tttttss of divers abuses of the Church ; could
•» so less, in our obedience to God, service to
ynr majesty, love to his Church, than acquaint
war princely majesty, with our particular
frids : for, as your princely pen writeth, The
ud£ as a good physician, must first know what
peccant humours his patient naturally is most
subject unto, before he can begin his cure.
And, although divers of us that sue for Refor-
mation, nave formerly, in respect of the times,
itUtribed to the Book, some upon protetta-
l*). some upon exposition given them, some
«uh condition, rather than the Church should
fere been deprived of their labour, and minis-
try; yet now, we, to the number of more than
i thousand, of your majesty's subjects and mi-
ftacers, all groaning, as under a common bur-
ton, of human rights and ceremonies, do, with
•* joint consent, humble ourselves at your
majesty's feet, to be eased and relieved in this
WaalC Oir homble suit then unto your ma-
jor* it, tint Cfecse offences following, some

01] STATE TRIALS, 1 James I. 1604.— The Case between Sir Francis Goodwin [9f

be more sparingly used. That Licenses for
Marriage, without Banns asked, he more cauti-
ously granted. — These, with such other abuses,
yet remaining, and practised in the Church of
England, we arc able to shew, not to be agree-
able to the scriptures, if it shall please your
highness farther to hear us, or more at large by
writing to be informed, or by conference
among the learned to be resolved. And vet
wc doubt not, but that, without any farther
process, your majesty (of whose Christian judg-
ment we nave received so good a taste already)
is able of yourself, to judge of the equity of
this cause. God,' we trust, hath appointed your
highness our physician to heal these diseases.
And we say with Mordecai to Hester, " who
knoweth, whether you are come to the king-
dom for such a time ?" Thus your majesty
shall do that, which, wc arc persuaded, shall be

acceptable to God, honourable to pour majesty
in all succeeding ages, profitable to his Church,
which shall be thereby increased, comfortable
to your ministers, which shall be no more sus-
pended, silenced, disgraced, imprisoned for
men's traditions; and prejudicial to none, but
to those tiiat seek their own quiet, credit, and
protit in the world. Thus, with all dutiful sub-
mission, referring ourselves to your majesty's
pleasure, for your gracious answer, as God shall
direct you: we most humbly recommend your
highness to the Divine Majesty : whom we be-
seech for Christ his sake to dispose your royal
heart to do herein, what shall be to his glory,
the good of his Church, and your endless com-
fort.— Your majesty's most humble subjects,
tUb Minister* of the Gospel, that desire not a
disorderly Innovation but a due and godly Re-
formation.

77. The Case between Sir Francis Goodwin and Sir John For-
tescuk, relative to a Return for the County of Buckingham;
as it stands upon the Journals of the House of Commons :
1 Jac. I. a. d. 1604.

Introduction.

From 1 Cobb. Pari. Hist. 997.

ON the 20th of March 1604, upon a motion
of the lord Cecil, a Conference was agreed
upon to be had with a certain number of the
Lower House, concerning the public State of
the Nation ; and on two things, in particular,
Purveyors and Respite of Homage. To which
the Commons desired might be added another
article concerning the matter of Wards :
answer was returned back, by the Lords, " That
they liked well the motion for a Conference,
touching the lust mentioned matter. Bur, wirh
all, because there were several other things
that did concern the public state ; of which it
was likewise proper to have conference, before
hand, for the better furtherance of the public
service ; and, in regard, the said matters were
of importance, their lordships desire them to
increase the number of their committee as
they intended to tlo theirs." A large Com-
mittee of lords were accordingly appointed,
consisting of nine earls, one viscount, six bishop?,
and 13 barons ; who were to be attended by
the two lord chief justices, fourjudges, Mr. Ser-
jeant Crook, and Mr. Attorney-General. The ]
commons deputed about 60 knights and -bur-
gesses of their house ; and this is nil th;it the
Journals of the Lords mention of this matter.
But the Journals of the Commons are not so
silent ; for it was, indeed, a business of im-
portance to the liberties and Privileges of that
House. Hapin, (from Coke) represents this
affair as another instance of this king's aiming
at absolute power. In order to introduce this
matter, we shall give a paragraph from this
authors History of England, (v. ii, p. 168)
and then subjoin the whole Account, as it

stands in the Journals of the Commons at this
day. " Immediately after the opening of the
Parliament the Commons examining, according
to custom, the contested Elections, there was
a debate in the house about the return of sir
Francis Goodwin, and sir John Fortescue, for
knight of the shire for the county of Bucks,
and upon a full hearing, sir Francis was de-
clared duly elected. Three days after, the
Lords sent a Message to the Commons, that
there might be a Conference about Goodwin's
election. The Commons, surprized at so extra-
ordinary a Message, answered, They did not
think themselves obliged to give an account of
their proceedings, and therefore could not
grant the Conference required. The Lords
replied, the king having been acquainted with
what had passed in Goodwin's Case, thought
himself engaged in honour to have the affair
debated again, and had ordered them to confer
with the Commons upon it. Whereupon, the
Commons, by their Speaker, guve their Rea-
sons to the king, why they could not admit of
this innovation. But all they could obtain
was, that instead of a Conference with the
Lords, the king commanded them to confer
with the Judges. This pleased them no more
than the other. They set down their Reasons
in writing, and delivered them at the Council-
Chamber, to desire their lordships to intercede
for them to the king, not to violate their pri-
vileges. The Answer was, the king absolutely
commanded them to have a Conference with
the Judges. The Commons were extremely
surprized at so absolute an order. Mean-
while, fearing to be accused of too easily en-
gaging in a quarrel with the King, they thought
it more proper to yield, than stand out, fully
bent however to adhere to what had been de-

_.._ k

(JJ

STATE TRIALS, I James I. I not — and Sir Join Fortune

[M

leniiined in the Case or Hie contested election.
Certainly, the kin); had engaged in a very nice
amnr, and probably would nut have come off
with honour, had lie not been disengaged by
Goodwin's moderation. Sir Francis, chilling
to forfeit his right rather thun occasion a quar- .
ret between the Kin; and the Commons, de-
wed rtie house to order the County of Bucks
to elect another knight in his stead. The j
King oAtl Coiiihiui'b equally accepted of this >
tifedienr, »hich prevented them from coming
U extremities ; but the king found from hence,
ttat mi great account was made of the procla-
mation upon colring the parliament whereby he |
■want to be master 'if the elections." Tims I
tar Mr. Kapin. This Case of sir Francis
Goodwin was printed, by Order of the House
of Common?, in 1704, under the direction of
Ruben Harley, e?q. (afterwards earl of Oxford)
then Speaker, on occasion of the famous
Debate, at that time, upon [he Aylesbury
EWctioo.

The C*sb.
VieJovii21 Martii, 1603-4. '

The first motion was made by sir William
Fleetwood, one of the knights returned for the
Coumy ot* Bucks, on the behalf of sir Francis
Goodwin, knight ; who, upon the first Writ of
Summons directed to the Sheriff of Bucks,
was elected the first Knight for that shire ; but
me Return of his Flection being made, it was
refused by the Clerk of the Crown (quia utla-
ftn) : and because sir John l'ortescue, upon
a second Writ, was elected, and entered1 in
that place, his desire was, that this Iteturn
m-iit be examined, and sir Francis Goodwin
m.iied as a member of the house. The
name pave way to the motion ; and for a
■ore deliberate and judicial proceeding in a
cue of privilege so important to the house,
Ordered, * That the Serjeant (the pruper of-

* BCcr of tile house) should give warning lo (lie
1 Clerk of the Crown to appear at the bar at

* eight o'clock tlu> next morning, nnd to bring
1 wuh him all the Writs of Summons, Inden-
' nets, and lie turns of Election for the county
' ofBocka, made and returned for this Pnrlia-
' mna ; and to give warning also to sir Frsn-
' ri» Goodwin to attend in person, whom their
' pleasure was to hear, ore tetiiit, to deliver
' the state of his own cause, and the manner
' and reasons of the proceeding in the Election
'of the Knights of the Shire fur that County.'

This being a motion lending to Mailer of
Pmilege, was seconded with another by Mr.
Serjeant Shirley, touching an arrest of sir Tho.
laW, &c.

Die Veneris 23 Martii, 1603-4.
Sir George Copping, knight, Clerk of the
Crown in the Chancery, this day, (according to
(inner order) bring attended by the Serjeant
<* the House with nis mace, appeared at the
Lar, and produced all the Writs of Summons,
ladentuiea, and Returns made of the Knights
fcr Buckinghamshire: for this Parliament ;
■hhcfa wen aavtrally read by the Clerk of the

House, and then the Clerk of the Crown com-
manded to retire to the door : And after, sir
Francis Goodwin himself (whom it specially
concerned) attending lo know the pleasure of
the house, was called in, to deliver the state of
his own cause, ore leaus ; wherein be was
beard at large, and commanded again to retire
jnlil the house had determined what to do.

In this mean time the whole case was at
large opened, and argued pro ci contra by sun-
dry learned and grave Members of the house,
nnd after much dispute tlie question was agreed
upon, and made.

Quest. ' Wbetlter sir Francis Goodwin were
' lawfully elected and returned one of the '
1 Knights for Bucks ; and ought to be admitted
' and received as a Member of this House i •

Upon this question it was, HesoU'ed in the
affirmative, " That he was lawfully elected
and returned, and, tie jure, ought to be receiv-
ed." Hereupon the Clerk of the Crown was
commanded to file the iirst Indenture of Be-
luni : and order was given, that sir Francis
should presently take the Oath of Supremacy
usual, and his place in the House; which bet
did accordingly.

Bit Maria 37 Martii 160-1,
Sir Francis Bacon, in reporting a conference
'it h the lords, touching Wardship and oilier
tilings, reported thai a lord touched the Cnse of
sir Francis Goodwin as a thing be had heard at
large, hut did not understand it ; and therefore
desired to know it mote particularly from this

Answer was made, That they had no War*

nt from the house to speak of it.

Sir Edward Coke, bis majesty's attorney-
general, and Mr. Dr. Hone, bring a Message
Iroin the lords, expressing with what accepta-
tion their lordships entertained their mutton
yesterday, not only for the mutter being of
very great weight and consequence, but espe-
cially for the manner ; namely. That, touching
Wardship, they would not petition for ease in
it as a matter of wrong, but of grief; and pray
to be relieved by grace, and not by justices
And llicir lordships for answer were desirous,
and moved at that time lo couple in the same
petition the matter of grievance, of Respite of
Hoinuge, which his majesty, out of his gracious .
favour and love to his people, had himself
taken knowledge of. ' And as they conceive
' it to be likely, that the conference may con-
' tinue between the two houses, touching the
' said mutters i as they are very jealous of the
' furtherance of their purpose, so are ihcy
' jealous of any impediment that may breed
1 lett, or hindrance therein ; therefore ihey de-
' sire, for a more clear proceeding and remov-
1 ingot' all stumbling-blocks, that the former
' committees may, in a second conference to
' be had, have authority lo treat touching the
' Case of sir Francis Goodwin, the Knight for
' Buckinghamshire, first of all, hefoie any other
1 matter were farther proceeded in.*

A. The answer to this McMfgr, (a* in suclt

95] STATE TRIALS, 1 James I. 100+.— The Cmktwtm Sir Francit Goodwin, [M

cases ia fur the more put usual) ' That the; '.
would return answer by messengers of their ;

Upon this Message it was argued by some,
' That in no sort ttiey should give account to

* the lords of their proceedings in the house ;
' but tliat Mr. Spender should from the house

* be a suitor to iiis majesty, to have access,
. ' and as <heir common mouih give his highness

1 satisfaction by direction from the house :
' That now the Judgment of sir Francis Oood-

* win's case having passed the house, it could

* not, nor ought not, to be reversed by them.
» A Precedent, ST Eiiz. cited ; where a Bill
' brought down from the lords, upon the first

* reading was /ejected; the lords sent inescen-
' ger* to demand a reason of their Judgment.

* It was denied to yield any reason.'

This Argument brought forth this Question,
which Mr. Speaker was ordered by the house
presently to make, viz.

Quest. * Whether lliey should confer with

* the lords, touching the Caw of sir Francis
' Goodwin the Knight for Buckinghamshire?'

* And Resolved, Tlnrt they should not."

It was then considered us fn to return some
Answer of the Message from tin' lords ; and
Mr. Secretary Herbert, with some other of the
Committees, were appointed to deliver to their
lordships, from the house ; ' That they did
' conceive it did not stand with the Honour
' and Order of the house, to give account of
" any their proceedings or doings : but if their
' lordships have any purpose tr> confer for the

* residue, that then they will be ready at such
' time and place, and with such number as
' their lords!] ii.s stud] think meet.'

Upon the lust Message to the lords, the
messengers return, ' That their lordships would

* presently send answer by messengers of tlieir

Sir Edward Coke, his majesty's Attorney-
General, Mr. Dr. Cure*, Mr. Dr. Hone, and
Mr. Tyndall, delivered from the lords, ' That

* their lordships taking notice in particular of

* the Return of the Sheriff of Burks; and ao

* quninting his majesty with it, his highness
' conceived himself engaged and touched in
' honour that there might be some conference
' of it between the two houses : und to tbiit
' end, signified his pleasure unto them, and by
' them to this house.*

Upon this Messmze, so extraordinary ond
unexpected, the house entered in some c'xui-
demtion what were lit to be done ; and lie-
solved, ' That bis majesty misfit be moved for
access rhene&t duv.' Anil altcrwnrdj they un-
derstood his pleasure to be, ' Tlial ihev should
attend at Whitehall ut eight the next morning.1
But because the time was then somen hut far
•pent, they Ordered, ' That the House with
Mr. Speaker, should meet ut ait the next
morning in the house.'

Yet afore their rising, ihey thought fit to
name a Committee, to set down the effect of
that which Mr. Spenker was to deliver from
tit* house to tbc king, viz, sir Francis Bacon,

Mr. Weotworth, Mr. Martin, Mr. Serj. Sing,
sir Rob. Wroth, Mr. Fr. Moore, sir Henry
Mountague, sir Wm. Fleetwood, Mr. Fuller,
Mr. Serj. Tuuneld, Mr. Serj. Hobbard, sir
Robert Wiugficld, Mr. Hide, Mr. Diet, Mr.
Winch, sir Edwin Saudis, sir Fr. Hastings,
Mr. Wiseman, sir Geo. Moore, sir Edw.
Hobby, sir Rob. Cc.tton, sir Tim. Lake, sir
Oliver St. John, sir Edw. Stafford, Mr. An-
throbus, Mr. Serj. Dodridge, sir Roger Wil-
bruharo, Mr. Solicitor, sir Edw. Tyrrel, to meet
at 4 o'clock this afternoon at the P»rltnment-
Cuamber in the Middle-Temple.

Iiit Merturii, w. 28 die Martu.

Mr. Speaker, with a great number of the
house, assembled at 6 a-dock this morning,
with a purpose to treat and resolve what should
be delivered to his majesty, (being appointed to
attend him the same morning at 8 a-cluck)
touching the Reasons of their Proceedings in
sir Francis Goodwin's Case: but because the
bouse was not then thought full enough for a
matter of that consequence, they proceeded to
the reading of Bills.

Upon motion touching Mr. Speaker's attend-
ance on the king, a Committee was named to
accompany him, vi*. All the Privy-Council,
being members of the house: Sir George Carew,
Vice-Chamberlain to the queen, sir Francis
Bacon, Mr. Serj. Dodridge, sir Henry Moun-
tague, Mr. Serj. Hobbard, Mr. Serj. Lee, Mr.
Fuller, Mr. Hide, Mr. Francis Moore, Mr.
Winch, Mr. Tate, Mr. Rd. Martin, Mr. Serj.
Shirley, Mr. Serj. Tanfield, sir John Heiglmm,
sir Rob. Osco bridge, sir Wm. Fleetwood, sir
Kdwju Sandis, sir Rob. Wroth, sir George
Fleetwood, sir John Scott, sir Herbert Crofts,
sir James Scudamorc, sir Jerome Horsey, sir
Edw. Radcliuc, sir Tbo. Holer oft, sir Anthony
Rowsc, sir Henry Nerill, sir Edw. Mountague,
sir Tbo. Hobby, sir Michael Sandis, Mr. Tho.
Bfiisoii, sir Fr. Fane, sir Fr. Hastings, sir Geo.
Moore, sir Edw. Hobby, sir Robert VVingfield,
sir Maurice Berkley, sir Edw. Tyrrell, sir Wm.
Killetircw, sir Fr. Popbum, Mr. Fr. Clifford,
air John Savill, sir Tho. Waller, sir Wm Lower,
Mr. Nuth. Bacon, sir Rd. Vcniey, sir George
Fane, Mr. Toby Matthew, sir Tho. Ridgwav,
Mr. Edw. Seymour, sir Wm. Buurlacy, sir Rob.
Moore, sir J una. Trelownev, sir Edw. Denny,
sir Tbo. Walaingliruti, .sir Fr. Bnrrington, sir
Robert Nnppier. sir Valentine Knigiitley, sir
George Carew, Master of the Chancery, sir
Nidi. Halsnell, sir John Thymic, sir Tbo.
Frcnke, sir Jerome Howes, sir Edw. Herbert,
sir John Leveson, Air. Dudley Carle ton.

Mr. Speaker, together with these Commit-
tees, were this day, at fJ in tho morning, ap-
pointed to attend his majesty, and to relate the
Reasons of the Proceeding of the bouse iu sir
Francis Goodwin's Case; where, upon Ansner
or Reply, such lawyers .is be of the Committee
arc to give their assistance.

Die Jovit, vit. 29 die Martii, 160*.

Mr. Speaker relateth what he had delivered
to the king by warrant from (be house the day

y?]

STATE TRIALS, ] James I. 1G04.— and Sir Mm Fortescve.

[US

before, toucliiog tlieir Proceeding in sir Francis
Goodwins Case, and his majesty's Answer;
whereof*, because part was afterwards penned
bv select Committees, read in the house, and
offered in writing to the king, " I have but
teuched the Heads, omitting many circum-
stances." lie said, he first delivered, J. The
Manner and Matter. 2. Then such Precedents
a? had been vouched and stood upon. 3. He
n-jened the body of the Law for Election. —
Ite first Writ ot Summons, dated ultimo Ja-
curii before the Parliament : the Writ issued
cuiv; the liberty was free, by that writ, to
cause in pUno comiiatu : the Flection was made
according to that writ, unci the Indenture duly
returned; und therefore adjudged by the house,

* That this first election bemjr ^ood, the second

• «a> consequently void/ — For the mutter of
Utlawry against sir Francis Goodwin, there
was one prosecuted against him at the suit of
Johnson, 31 Eliz. for 00/. and was laid ami
proceeded in the Hustings, Ixmdon. Another,
at tl« suit of one Hacker, for 16/. 39 Kliz.
Hut *>ir Francis had since been chosen, nd-
m.tred, and served as a member of this house,
in the several parliaments holden 39 and 43
Eii/. Tliat the Uilawry remained in the
Huntings, so as the law could not take notice
o- it; neither was it pleadable. — 1 Eliz. One
Smith was found utluwed, and pri\iiegcd by
the house. — 23 Eliz. One Vau«han utiawed ;
snH, upon the question and division of the
h "lm.-, privileged : beinz carried with the dif-
kreuce ot sii voice*.— 35 Eliz. Three prece-
cmt* vouched.— 39 Hen. G.* Fitz-Herbert.
Th* ease not judged ; but Opinions delivered.
—Mr. John Killegrew having 52 utluwries re-
turned ac'iinst liiin, was admitted to serve in the
bouse. Sir Win. Harecourt was found IB times
uhwed, and yet was admitted to serve. — The
Luiimcr ot the Election is limited bv the Sta-
tute. 1 he Mippo«-cd Utlawry, 31 Kliz. against
*<rFrinci>. was* no iittavt:\ at all: for when so-
«er a nriii is sued, the proclamation omj.t to
l* mtv i he county when* the party duellcth;
'•M-* the lit' iwry is not good.-— 39 ov 43 F.l:/.
1W antral Pardon \* pood lor I'llawries,
1*10 t :J|, saving the party at whose suit. —
Sllli. It wa« Francis-cu* Goodwin, Gen. —
3' Khz. Franciscus Goodwin. Armiir- The
ifrr.if i> no judge of the utlawry, neither c-iuld
liAf iij'K'.' it was the same man; and therefore
5-i-j! i n r propc rly return him utiawed.*'

lb- Majesty answenwl, u He was loth hj?
>'riif.H |j«f forced to alter hi> tune; and tl::it he
*i»iM now change it into matter of urief bv
»j\ irt c munition. He did sample it to the
::.:nij;ir and contradict i-m of the people of
l»r..,-L — lit* did not attribute the cause of hi*

• Hi-re the acriirite Editor of the printed
L-rn-rls makes this n-sinrk, " Tin? wordi <W
ii u. • teem to be im* roperly inserted here, and
«•'. bi l lie Hook of Note?, pi:1 red before the
:-'i>u>n of Smyth's Case, 1 Eli/, and in the
"•-.-.in of the Journal itself against these words
* •ruwn Quxre."

vol. ji.

grief to any purpose in the house to offend him ;
but only to a misinkiii" of tlie law. For mat-
ters of fact, he answered them all particularly.
That, for his part, he wns indifferent which of
them were chosen, sir John, or sir Francis : that
they could suspect no special alfection in him,
because this was a Counsellor not brought in
by himself. — That he had no pur}K>se to im-
peach tlieir privileee; but since they derived
all matters of privilege from him, and by his
grunt, he expected they should not be turned
against. That there was no Precedent did suit
this case fully : Precedents in the times of
Minors, of Tyrants, of Women, of Simple
Kings, not to be credited; because for some
private ends. Uy the law this house ou<iht not
to meddle with Returns, hciii'j; alt made into
the Chancery, and are to be corrected or re-
formed by that court only, into which they are
returned." 35 Hen. 6. it was the Resolution
of all the Judges, that matter of Utlawry was a
sufficient cause of dismission of any member
out of the liouse. That the Judges have now
resolved, That sir Francis Goodwin standeth
utiawed according to the laws of this land. In
conclusion, it was his majesty's special charge
unto us ; — That, 1. The course' already taken
should be truly reported. 2. That we should
debate the Matter, and resolve among our-
selves. 3. That we should admit of Conference
with the Judges. 4. That we should make re-
port of till the Proceedings unto the Council."
This Relation being made, the House did
not enter into any further consideration of the
matter at that time; but Resolved and Ordered,
" That it should be the first matter moved th«

next morning.

a

Die Veneris, viz. 30 du Murtii, 1G04.

Moved and urged by one, touching the Dif-
ference now on foot between the King and the
House, " That theie is just fear of some tireat
abuse in the hi".- Election. That in his con-
science the Kin^ lmih been much misinformed;
and that he had too many misin limners, \>hich,
j he prayed God, mi-Jit be renin vd or lessened
in their number. That now the Case of Mr
John Forte*rue and sir Francis Goodnin was
become tbeeasc of the whole Kingdom. That
old Lawyer** forget, and 'commonly interpret
the law acrorihn-4 to the time. — That by thi->
course the free Election of the country is taken
a\\av, n:el mme shall be chosen but such as
-Imfl ulea^e the King and Council. Let us
therefore, ^'.'!i fortitude, understanding and
.sincerity, >=cck to maintain our Privilege; v.lm h
cannot he taken or construed any contempt in
us, but merely a maintenance of our common
riaht, which uur ancestors ha\e left us, and is
just and tit for us to trrm-t-r to our posterity."

Another, lor a law to be made, "That
never anv man outlawed, should «dicw his face
here njrain. I tic dith rence, he observed, was
sniiie imrespectivc carriase towards hismnjesty
in this matiei ; and therefore let our proceed-
m«r be dutiful ami cartful towards hin», in au-
vising ot' some kpeefly coui»e to j»ive his majesty

99] STATE TRIALS, 1 James I. 160*.— The Cote between Sir Francis Goodwin, [100

satisfaction ; that is (as he conceived) accord-
ing to the King'* project, tint, to advise
among«t ourselves, and then to confer with the
Judges, n*jt as Parliament-men, but as Coun-
sellors ; not as though they were to reverse
our errors, but thut we might be better in-
formed ; not now the Case of sir John and sir
Francis, but a Case of great difference between
the king and us, wherein we are deeply to con-
sider the consequence if this pique be bruited
in the country, abroad or beyond the seas. It
is fit we let the king see how much we take to
heart this matter, sithence our affections have
so much appeared in the passing and present
expediting of the Act of Recognition, &c."

Cunclut. That we should tender our hum-
ble Petition to his majesty, for leave to make a
Law for the banishing of all Outlaws hereafter
from the Parliament, and pray, that we may
bold all our Privileges entire.

A Third, " That we ought not to contest
with the king; that it is fit to have a Confer-
ence : that by it we shall lose no Privilege, but
rather gain ; for the matters of the Conference
will be two, satisfaction of the king, and putting
in certainty our Privilege. All is not yet said
that may be said ; we are not to dispute with
one that is governor of thirty legions. Conji-
tendum est ne J'rustra interrognsset. . Let us
deal plainly and freely with the Lords, and let
them know all the reason*. They are jealous
of the Honour of a Privy-Counsellor, we or the
Freedom of Election, it is fit great men main-
tain the Prerogative ; so is it fit that we main-
tain our Prn ileges. This is a Court of Record,
therefore ought we by all means seek to preserve
the honour and dignity of it. If a burgess l»e
chosen tor two places, the burgess makes his
choice for which he will serve, and a warrant
shall be directed from Mr. Speaker, in the
name of the house, to the Clerk of the Crown
to send forth a Writ for a new Election for the
other place left ; which is a direct proof that it
is a Court of Power and Record. We have a
Clerk and a Register; all matters that pnjs
here are entered of Record, and preserved. As
they stand for the honour of a Counsellor, so
we for our Privileges. It is to be wished, that
we had a law to declare our Privileges, that
we have a Court of Record and a Register."

Obi. We (they say) are but half of the
body, and tike Lords are the parts nearest
the head.

Ant. Nothing ascends to the Head hut by
the Breasts, cVc. — &mcL That we may pray
it may be explained by a law what our Privi-
leges are ; and that no man outlawed uiuy
hereafter be admitted. — There must be a Judge
of the Return before ue sit; and this is now
judged according to the positive laws of the
realm by lite king, which ilifnugeth not our
liberty, siuce we judge after the court is set,
according to discretion. — No precedent, that
any man wus put out of the house lor utlawry ;
therefore it had been tit we should have de-
sired to iaforni the king that he was inmn-
ikrmed. — Let 111 now leave this particular Case

to the king, and consider and resolve of the
material Questions that will fall out in the
debate of it. 1. Whether this Court haih
power to take notice of Returns made before
we sit here ? 2. Whether men utlawed may be
of the house? 3. Whether a man pardoned,
having not sued forth a writ of Scire facias, may
be called in question ? 4. Whether the Writ
were returned thp 17 th of Feb. or no, upon
oath of the sheriff ?"

Some others were strong in opinion, That
we ought not to confer nor to commit, saying,
" That majesty had conferred with Justice;
yet majesty had left the stopping of the wound
to us. We should taint ourselves with three
great blemishes, if wo should alter our Judg-
ment, levity, cruelty and cowardice. There
be three degrees of upright Judgment, motion,
examination, judgment: all these have passed
us. No Court can reform their own judgment.
Every day a Term here. Every act that
passeth this house is an Act of Parliament,
Shall justice float up and down ? Shall he be a
member to-day, and shall we tear him off to-
morrow ? If the member be sound, it is vio-
lence : if the hand tear the rest, it is cruelty.
No part torn, but it may bleed to the ruin of the
whole. Let sir Francis Goodwin stand as he if :
duty and courage may stand together ; let not
the house be inveigled by suggestions. This
may be called a Quo Warranto to seize our
Liberties.

There hath been three main Objections.

1. -The King's Exception. * We could shew
no precedent in this kind/

Answ. ' The King could show no such Writ
' before. Our hands were never sought to he
* closed before, nor we prevented. It opens
' a gap to thrust us all into the Petty-Bag. A
1 Chancellor may call a Parliament of what
' persons he will by this course. Any sugges-
4 tion by any person, may be cause of sending
' a new* Writ.'

il Obj. by the Lord-Chief-Justicc. « By the
Law we had nothing to do to examine
Returns/

Answ. ' Judges cannot take notice of pri-
vate Customs or Privileges : but we have a
Privilege which stands with the law/. The
Judges informed the king of the law, but not of
a case of privilege. It is true, 35 Hen. 6. all
the Judges resolved, That no outlawed man
ought to be admitted ; but that was controlled
by parliament. It is the same Opinion now;
let us control it as then : we have done no of-
fence to the state ; let us therefore be constant
in our own Judgment.

3 Obj, Another, * The king's pleasure, that
we should deliver the Reasons of that we
have doiv to be just/

If we clear our contempt, we have discharged
ourselves. The king's Bench cannot reveise
their Judgment the same Term; therefore not
the Parliament. Let us send a message to the
lords, that we are ready so to do, as we do not
undo this house.

Others, Non coronabitur qui non legUu

101]

STATE TRIALS, 1 James I. 1(504.— and Sir John Fortescue.

cer titer it. Not to be termed a difference be-
tween his majesty and the commons. Rogumus,
AugHMte, n«n pugnamtu. The Question is not
of matter of Privilege, but of Judgment. Let
di attend them as lords of the council, and not
as lords of parliament. — We do no ways contest
or cooteud with his majesty. The king is no
•ay bound in honour. If writ9 go forth un-
duly, they may be controlled without impeach-
■eat to the king's honour. It is the act of his
■ferior officers. It is now come to this ques-
tion, ' Whether the Chancery or Parliament
'ought to have authority ?'

Quest. Whether we ought to satisfy the
king in his commandment ?

The King's message was that we should con-
sider within ourselves, and resolve of ourselves;
then no need to confer with the Judges : if we
cannot, then it is lit to be resolved by the
Judges. The Judges have judged, and we have
judged : what need then of Conference ? Let
there be no spark of that grace taken from us,
which we have had already from his majesty.
Let our reasons be put into Article?, and deli-
vered in all humbleness unto him.

Upon the conclusion of this Debate in this
Banner, the House proceeded to question ; and
the first was,

1. Quest. Whether the House was resolved
in the matter ?

And the Question was answered by general
voice, That the whole house was resolved.

2. Quest. Whether the Reasons of their
proceeding shall be set down in writing?

Resolved, That they shall be set down in
writing: and ordered further* That a Committee
should be named for that purpose, and appoint-
ed first to set them down in writing, and to
Wing them to the House, there to be published,
lad to receive their allowance.

The Committees were instantly named, viz.

sir Rob. Wingfield, sir Geo. Moore, sir Fr. Ba-

eaa, Mr. Yekerton, Mr. Dyett,sir Fr. Hastings,'

Mr. Hedley, Mr. Recorder of London, sir Edw.

Hobby, sir Fr. Barrington, Mr. Wiseman, Mr.

Hale, Mr. Fuller, sir Edw. Mountague, Mr. Ra-

Hsscroft, sir W. Fleetwood, Mr. Winch, sir

Tao. Challoner, Mr. Solicitor, sir Roger Wil-

Waham, sir John Thynne, Mr. Martin, s-ir

Arthur Atye, Mr. Francis Tate, sir Roland

Litton, sir Henry Nevill, Mr. Attorney of the

Wards, sir John H oil is, sir Hob. Wroth, sir

John Scott, Mr. Hitcham, sir Edw. Stafford,

it John Mallory, sir Herbert Crofts, sir Fr.

Fane, sir lid. Molyneux, sir John Hungerford,

fir Edw. Herbert. All the Serjeants at Law.

Mr. NutlL Bacon, Mr. Ilext. To meet this

afternoon in the Exchequer-Chamber. .

Tlie authority given unto them by the House,
was this:

44 The House being resolved upon the ques-
tion. That the Reasons of their precedent Re-
solution, touching the Return, Admittance and
Retailing of sir Francis Goodwin as a member
of this bouse, should be set down in writing:
these Committees were specially appointed to
perform that service, and have Warrant from the

[102

house to send for anyofticer, to view and search
any Record, or other thing of that kind, which
may help their knowledge or memory in this
particular service : And having deliberately by
general consent set down all such reasons, they
are to bring them in writing into the house,
there to be read and approved, as shall be
thought fit."

Die Luna, viz. 2 die A prills, 160*.

It was then moved, That Committees might
he named to take the examination of the sheriff
of Buckinghamshire, who was by former order
sent for, and now come. And to that end were
named, Mr. Solicitor, sir Rob. Wroth, sir W.
Fleetwood, sir Tho. Challoner, sir Rob. Wing-
field, Mr. Serj. Tanfif Id, Mr. Serj. Lee, Mr.
Yelvcrton, Mr. Fr. Moore. Who uere ap-
pointed to take his Examination presently.

Sir Charles Cornwallis moveih in excuse of
sir Francis Goodwin's absence from the house,
and prayeth, " That they would as well in their
own judgment pardon it, as witness and affirm
his care and modesty upon all occasions to the
king, u\ that he hath forborne, during all the
time of this question, to come into the house."

The Examination was presently taken by
these Committees, and returned in this form.

Interr. 1. Why he removed the county from
Aylesbury to Brickhill ?

He saith, It was by reason of the Plague being
at Aylesbury, the county being the 26th of Jan.
at which time three * ere dead of the .plague
there. This was the only motive of removing
his county.

Inrerr. 2. Whether he were present at the
first Election ?

Saith, He was present ; and was as faithful
to wish this second place to sir Francis Good-
win, as the first to sir John Fortescue : sent sir
Francis Goodwin word, before the election, he
should not need to bring any freeholders, for
the election he thought would be without scru-
ple for them both ; first to sir John, second to
sir Francis. About 8 of the clock he came to
Brickhill; was then told by sir George Throck-
morton, and others, that the fin>t voice would
be given for sir Francis ; he answered, He hoped
it would not be so, and desired every gentleman
to deal with his freeholders. After eight of the
clock went to the election a great number, there
being at the county, * * * After the Writ read,
he first intimated the points of the Proclama-
tion ; then jointly propounded sir John Fortes-
cue and sir Francis Goodwin. The Freehold-
ers cried firsl, ' A Goodwin, a Goodwin !' Every
Justice of Peace on the Bench said, ' A For-
tescue, a Fortescue 1' and came down from the
Bench hefore they named any for a second
place, and desired the Freeholders to name sir
John Fortescue for the first. Sir Francis Good-
win being in a chamber nenr, was ?ent for by
the Sheriff and Justices ; and he came down
and earnestly persuaded with the Freeholders,
saying, Sir John was his good friend, had been
his father's, and that they would not do air John
that injury : notwithstanding the Freeholders

103] STATE TRIALS, 1 James. 2001 The Case between Sir Francis Goodwin, [104

discerning ; shewing affectionate desire rather
to receive satisfaction to clear us, than cause to
pardon us: we do in nil humbleness render our
most bounden thanks tor the same; protesting,
by the bond of our allegiance, that we never
hud thought to offend your majesty ; at whose
feet we shall ever lie prostrate, with loyal hearts,
to sacrifice ourselves and all we have for your
majesty's service : and in this particular, we
could find no quiet in our minds, that would
suffer us to entertain other thoughts, until we
had addressed our answer to your most excel-
lent majesty ; far which nevertheless we have
presumed of the longer time, in respect we have
prepared some precedents, requiring search, to
yield your majesty better satisfaction.

There were objected against us by your ma-
jesty and your reverend judges, four things to
impeach our proceedings, in receiving Francis-
Goodwin, knight, into our house.

Objection W, 'The first, That we assume
' to oui selves power of examining ff the
' Elections and returns of knights and bur-
' ge«MS, which belonged to your majesty's
' C'bancerv, and not to us: for that all Re-
* turns of Writs were examinable in the
i courts wherein they are returnable ; and
' the parliament writs being returnable
' into tjie C'bancerv, the rt turns of tliena
' must, needs be there examined, and not
' with us.'
Our humble Answer i*, That until the 7th
Hen. 1. all Parliament-Writs were returnable
inio the parliament ; as appeareth by many
precedents of record ready to be shewed, and
consequently the returns there examinable: in
which year a Srirute was made, Thar thence-
forth everv Parliament-Writ , conLiinini! the

would not desist, but all cried, » A Goodwin, a
Goodwin !' some cryiun, • A Fortcscue,' to the
number of 00, or thereabouts ; the oilier for
«ir Francis Goodwin, being about 2 or 300 :
and sir Francis Goodwin, to his tlunking, dealt
-very plainly and earnestly in this matter for sir
John Eortescue ; for that sir Francis Goodwin
did so earnestly protest it unto him.

Intcrr. S. Who laboured him to make the
Return so long before the day. of the Parlia-
ment ?

He being here in London, Mr. Attorney Ge-
neral, the 2nd of Murch, at his chamber in the
inner Temple, delivered him two Cap. Utlagat.
against sir Francis Goodw in ; and before he
made his Return, he went and advised with Mr.
Attorney about his Return, who penned it, and
so ic was done by his direction : and the Return
being written, upon Friday after the king's
coining through Loudon, near about my Lord
Chancellor's Gate, in the presence of sir John
Fortescue, he delivered the Writ to sir George
Coppiu : and at this time (it being about 4 in
the afternoon) and before they finned, sir John
Fortocuc delivered him the second Writ >ealed ;
sir John Foitescue, sir George Coppin, and
himself, being not al>ovc an hour together at
that time, and never had but this new Writ
of Parliament to him delivered. Subscribed,
Francis Cnr.Y.\E.

This was" returned by the Committee to the
hands of the Clerk, but not at all read in the
house. — Mr. Speaker remembereth the matter
of Conference with the Judges, and offered to
lepeat and put again the Question* that were
formerly made ; being befoie uncertainly and
imperfectly left (as he said) in the Case of Buck-
inghamshire, viz.. 1. Whether the House were
resolved in the matter? 2. Whether thev should
comer with the Judges? And at length induced
the house to entertain the latter Question ; and
being made, was carried by general voice in the
negative, no conference.

Upon this passage, it was urged for a rule,
That a Question being once made, and carried
in the affirmative or negative, cannot be ques-
tioned again ; but must stand as a Judgment of
the house.

it was thought fit that Mr. Speaker should
attend the Committee for ]>emiing the Reasons
in sir Francis Goodwin's Case, not by com-
mandment, but voluntary of himself.

Die Martis 3 die Apr i lis , 1604.
The Reasons of the proceeding of the house
in Ur Francis Goodwin's Case, penned by the
Committee, were, according to former order,
brought in by Mr. Francis Moore, and read by
the Clerk, directed in form of a petition.

M To the King's most excellent Majesty, The
humble Answer of the Commons Hou«e of
Parliament to his Majesty's Objections in
sir Francis Goodwin's ('use.

" Most gracious, our dear and dread sovereign ;
Relation being made to us by our Speaker,
of your majesty's reynl clemency and patience
m hearing us, and of your princely- prudence in

day and place where the parliament shall be
holden, should have thi-> clause, viz. ' Ft elec-
( tionein tuain in pleno comitatu lactam dis-
' tincre et aperte sub sigillo tuo et sinilhs eorum
' qui election! illi mterluerint nobis in Cuncel-
' lurium nostram ad diem et locum in btevicon-
' tent.* certilices indilate.'

By ihi«, although the form of the Writ be
somewlmt altered, yet the power of the parlia-
ment, to examine mid determine of elections*
remaincth ; fwr so the statute hath been always
expounded ever sithence, by use to this day :
and for that purpose, the Clerk of the Crown
hath always used to attend all the Parliament-
time, upon the Commons House with the Writs
and Returns; and al>o the commons, in the
beginning of every parliament, have ever used
to appoint special committees, all the parlia-
ment-time, for examining controversies con-
cerning elections and returns of knights and
burgesses : during which time, the writs and
Indentures remain with the Clerk of the Crown,
and after the Parliament ended, and not before,
are delivered to the Clerk of the Petty-bag in
Chancery, to be kept there ; which is warrant-
ed by reason and precedents : Reason, for that
it is At that the returns should be in that place
examined, where the appearance and service of
the writ is appointed. The appearance and

105]

STATE TRIAlS, 1 James I. 160 k— and Sir John Forkacuc.

[10*

service it in parliament, therefore the return
examinable in parliament.

Precedents: One in the 29th of the late
queen Eliz. where, after one Writ awarded into
Norfolk for choice of knights, and elections
made and returned, a second was before the
Parliament-day awarded by the Lord Chan-
cellor, and thereupon another election and re-
turn made ; and the Commons being attended
with both Writs and Returns by the Clerk of
the Crown, examined the cause, allowed the
fat, and rejected the second. So anno 23
Eln. a Burgess was returned dead, and a new
chosen, and returned- by a new Writ, the party
returned dead appeared ; the Commons, not-
withstanding the Sheriff's return, admitted the
first chosen, and rejected the second. Also,
the said 23d year, a Burgess chosen for Hull
was returned a lunatic, and a new chosen upon
a second writ : the first claimed his place ; the
Commons examined the cause, and finding the
return of Lunr-^y to be true, they refused him ;
but it it had been false, they would have re-
ceived him. Anno 43 Eliz. the Sheriff of Rut-
landshire returned himself elected ; the Com-
mons finding that he was not eligible by law,
sent a Warrant to the Chancery for a new
writ to choose a new. Anno 43 Eliz. also a
Burgess was chosen for two Boroughs; the
Commons, after he had made election which he
would serve for, sent Warrant to the Chan-
nrv for a Writ to choose a new for the other
borough : of which kind of precedents there
are many other, wherewith we spare to trouble
your majesty. All which together, viz. Use,
Reason and Precedents, do concur to prove the
Chancery to be a place appointed to receive
tite returns, as to keep them for I lie Parliament,
bat not to judge of them ; and the inconveni-
ence might be great, if the Chancery might,
•pun suggestion** or sheriffs returns, send Writs
nr new elections, and those not subject to ex-
amination in parliament: for, so, when fit men
were chosen by the counties and boroughs, the
Lord-i hancellor, or the sheriffs, might displace
tboa, and send out new Writs, until some were
cvflen to their liking ; a thing dangerous in
precedents for the time to come, howsoever we
rejr sec on lv from it at this present by the now
Lord Chancellor's integrity.
Objection 9. 'That we dealt in the cause with

* too much precipitation, not seemly for a

* council *ot gravity, and without respect

* to your most excellent majesty, our sove-

* reign, who had directed the writ to be
' made; and being but half a body, and
' no court of record alone, refused confe-
' rence with the lords, the other hal», not-

* withstanding they prayed it of us.'

Our bumble answer is, to the precipitation,
That we entered into this cause, as in other
parliaments of like cases hath been accustomed,
Oiling to us the clerk of the crown, and view-
■5 bu«h the writs, and both returns ; which in
o*es of * * * and motions, though not of bills
requiring three readings, hath been warrant by
•nauDual UMge amongst us: and thereupon,

well finding that the latter writ was awarded
and sealed before the Chancery was repossessed
of the former, which the clerk of the crown,
and the sheriff of the county, did both testify,
and well held to be a clear fault in law, pro-
ceeded to sentence with the less respect ot the
latter election. For our lack of respect to
your majesty, we confess, with grief of our
hearts, we are right sorry it shall be so con-
ceived ; protesting that it was no way made
know n unto us before that time, that your ma-
jesty had taken to yourself any special notice,
or directed any course in that cause, other than
the ordinary awarding writs by your highnesses
officers in that behalf: but if we had known
as much as some will have, by your majesty's
royal mouth, we would not, without your ma-
jesty's privity, have proceeded in that manner.
And further, jt may please your majesty to
give us leave to inform you, That in the ex-
amination of the cause of the sheriff avouched
unto us, That Goodwin agreed to yield the
first place of the two knights to sir John For-
tescue, and in his own person, at the time of
election, with extraordinary earnestness, en-
treated the electors it might so be, and caused
the indentures to be made up to that purpose ;
but the electors utterly refused to seal them.
Concerning our refusing conference with the
lords, there was none desired until after our
sentence passed ; and then we thought, That
in a matter private to our house, which, by
rules of order, miKht not be by us revoked, we
might, without any imputation, refuse to con-
fer. Yet understanding by their lordships,
That your majesty had been informed against
i.s, we made haste (as in all duty we were
bound) to lay. open to your majesty, our good
and gracious sovereign, the whole manner of
our proceeding ; ' not doubting, though we
' were but part of a body, as to make new
' laws, yet for any matter of privileges of our
' house, we are and ever have been a court of
• ourselves, of sufficient power to discern and
( determine without their lordships, as their
' lordships have used always to do for theirs
< without us.'

Objection 3. ' That we have, by our sentence
' of receiving Goodwin, admitted, That
' outlaws may be makers of laws ; which
' is contrary to all laws.'

Our humble Answer, That notwithstanding
the precedents which we truly delivered, of
admitting and retaining outlaws in personal
actions m the commons house, and none re-
mitted for that cause ; yet we received so great
satisfaction delivered from your royal majesty's
own mouth, with such excellent strength and
light of reason, more than before, in that point,
we heard or did conceive, as we forthwith pre-

fmred an net to pass our house, That all out-
aws henceforth shall stand disabled to serve in
parliament: but as concerning Goodwin's par-
ticular, it could not appear unto us, having
thoroughly examined all parts of the proceed-
ings against him, that he stood an outlaw, by
the laws of England, at the time of the election

107] STATE TRIALS, 1 James I. l(m.±-Thc Cote between Sir Francis Goodwin, [109

mnde of him by the county; and that for two
causes : the first is, That where the party out-
lawed ought to be five times proclaimed to ap-
pear in the sheriff's county court ; and then
not appearing, ought to be adjudged outlawed
by the judgment of the coroners of the county ;
there uppeareth no record made in the Hustings
of London that Goodwin was five times pro-
claimed, or that the coroners gave judgment of
outlawry against him : but a clerk, lately come
to that office, hath now, many years after time,
and since this election, made entries, interlined
with a new hand, that he was outlawed : to
which new entries we could give no credit, for
that the parties, at whose suit Goodwin was
saed, have testified in their writings of release,
That they never proceeded further than to take
out the writ of Exigent for an outlawry ; and
being then paid their money desisted there :
by which we find, That Goodwin wus not five
times proclaimed, nor adjudged outlawed, be-
ing a thing usual in London to spare that pro-
clamation and judgment, if the party call not
upon it; and no record being made for many
years together, that either of them was done.

The second Cause was, for that the Writ of
Exigent by which the sheriff was commanded
to proclaim him five times, was never lawfully
returned, nor certified by Certiorari; without
which, we take it, That Goodwin stood not
disabled as an outlaw.

To this, adding the two general Pardons by
Parliament, which had cleared the outlawry in
truth and substance, (if any were) and that
Goodwin could not apply the pardons by Scire
Ja. for that no record nor return was extant of
the outlawry, whereupon he might ground a
Scire fa. we were of opinion, and so your ma-
jesty's most reverend judges would have been if
they had known thus much, That Goodwin
stood not disabled by outlawry to be elected or
serve in parliament : but when we considered
further, That the course taken against Good-
win for drawing him into this outlawry of pur-
pose to disable him to serve in this place,
whereto the county had freely elected him,
was unusual; we could not, with the reputa-
tion of our places, serving as a council of
gravity, in allowance or continuance of that
course, censure him to be rejected ns uti outlaw :
the particulars of which were these, viz. — Two
exigents awarded, * * * the other seven years
past to the Hustings in London ; no entry
made of five proclamations; nor of any judg-
ment of the coroners ; nor any return of the
exigents mnde or endorsed ; the party plain if
satisfied ; the pretended outlawries being but
upon a mean process; and as to your majesty's
duties and contempts pardoned now since
Goodwin was elected knight, the exigent now
sought out since the election procured to be
returned in the name of the sheriffs that then
were, and are long since dead, and new entry
made of the five proclamations and coroners
judgment; and naw a return made of that old
exigent, which could be of no use, but only for
a purpose to disable him lor that place. Upon

all which we could do nd less in true discretion
than certify the election made secundum equum
et bonum.

Objection 4. 'That we proceeded to exa-
' mine the truth of the fact of Outlawry,
1 and gave our Sentence upon that :
' whereas we ought to have been bound
' by the Sheriff's return of the Outlawry
' from farther examining, whether the
' party were outlawed or not.'

Our humble Answer is, That the Precedents
cited before, in our answer to the first objec-
tion, do prove the use of the Commons House
to examine veritatem facti in elections, and
returns, and have not been tied peremptorily to
allow the return ; as if a knight or burgess be
untruly returned dead or lunatic, yet when lie
appeared to' the house to be living and sound,
they have, contrary to the return, received
him into the house, preferring the truth mani-
fest before the return. By which discreet pro-
ceeding there is avoided that great inconveni-
ence above-mentioned of giving liberty to She-
riffs, by untrue returns, to make and remove
whom they list to and from the parliament
service, how meet soever the parties be in the
judgment of the county or borough that elected
them. — Thus, in all humility, we have presented
to your most excellent majesty the grounds and
reasons of our lute action, led with no affec-
tions, but guided by truth, warranted in our
consciences, imitating precedents, maintaining
our ancient privileges, honouring your excellent
majesty in all our services; to which in all
loyalty and devotion we bind us and ours for
ever, "praying daily on the knees of our hearts,
to the majesty of the Almighty, that your ma-
jesty and your posterity may in all felicity reign
over us and ours to the end of die world."

These Reasons so set down and published to
the House, Mr. Secretary Herbert was sent
with message to the lords, That the house had
resolved of their Answer to his majesty, (in sir
Francis Goodwin's Case) and had set it down
in writing, and that it should be sent to their
lordships before 4 of the clock in the afternoon ;
who immediately returned their Lordships An-
swer, That they would be ready at that time
in the Council-Chamber at Whitehall, with SO
of the lords, to receive what then should be
delivered. Then were named threescore to
attend the delivery of the said Reasons at the
time and place aforesaid.

Eodem die, p. m.

The House entering seriously into consulta-
tion what course was to be held with the lords;
as also fulling into more length of disputation
touching the Bill of Merchants*, than were ex-
pected, sent some messengers to the lords, to
excuse their lone tarrying, viz. Sir Edward
Hobby, sir Ro. Wilhrahani, sir Hen. Ncvil, sir
Fr. Hasting*, Mr. Marty n.

This afternoon about 5 o'clock the Com-
mittee appointed did attend to deliver the
Reasons aforesaid at the Council-Chamber ac-
cording to appointment and order of both
houses ; and they were delivered by sir Francis*

109]

STATE TRIALS, 1 James I. \00k- and Sir John Fortescve.

[110

Bacon, one of the Committee, with desire,
That their lordships would be mediators in the
behalf of the house, for his majesty's satis-
faction.

Die Mercuriiy vi*. 4 die Aprilis 1604.
Sir Francis Bacon having the day before
delivered to the lords in the Council-Chamber
of Whitehall, (according to the Direction of the
souse) the Reasons in writing, penned by the
Committee, touching sir Francis Goodwin's
Case, maketh report of what passed at the time
•f the said delivery. First, That though the
Committees employed were a number specially
deputed and selected ; yet that the lords ad-
mitted all burgesses without distinction ; that
they offered it with testimony of their own
speed and care in the business, so as t&ey said
ao one thing bad precedency, but only the Bill
•f Recognition ; that they had such respect to
the weight of it, as they had not commuted it
to any frailty of memory, or verbal relation,
bat pot it into writing for more permanent
memory of their duty and respect to his ma-
jesty's grace and favour*, that in conclusion
they ' prayed their lordships, sitbence they had
■carer access, they would co-operate with them
for the king's satisfaction ;' and so delivered
the Writing to the Lord-Chancellor, who re-
ceiving it, demanded, Whether they should
•end it to the king, or first peruse it ? To which
was answered, That since it was the king's
pleasure they should concur; they desired their
lordships would first peruse.

The lotd Cecil demanded, Whether they
had Warrant to amplify, explain, or debate any
doubt or question made upon the reading ? To
which it was said, They had no Warrant. And
so the writing was read, and no more done at
that time.

Die Jovit, viz. 5 die Aprilis, 1604.

Mr. Speaker by a private commandment at-
tended die King this morning at eight o'clock,
sad there staid till ten.

Mr. Speaker excuseth his absence, by reason
at was commanded to attend upon his majesty.
Aad bringeth Message from bis majesty to this
dart : That the King had received a parch-
SMat from the house. Whether it were an
issalutc resolution, or reason to give him satis-
faction, he knew not : He thought it was rather
attended for his satisfaction. His majesty pro-
tested, by that love he bare to the house as his
Wing and loyal subjects, and by the faith he
did ever owe to God, he had as great a desire
to maintain their privileges, as ever any prince
had, or as themselves. He had seen and con-
sidered of the manner and the matter ; he had
heard his judges and council ; and that he was
now distracted in judgment. Therefore, for his
farther satisfaction, he desired, and com-
saanded, as an absolute kins, that there might
be a Conference between the House and the
Judges ; and that for that purpose there might
I a Select Committee of grave and learned
person* out of die house: that his Council
■right be present, not as Umpires to determine,
bat to repot^indiiaVrently op both sides.

Upon this unexpected Message there grew
some amazement and silence. But at last
one stood up and said : The Prince's command
is like a thunder-bolt ; Ins command upon
our Allegiance like the roaring of a lion. To
his command there is no contradiction ; but
how, or in what manner we should now pro-
ceed to perform obedience, that will be the
question.

Another answered, Let us Petition to his
majesty, that he will be pleased to be present,
to hear, moderate, and judge the case himself.
Whereupon Mr. Speaker proceeded to this •
question :

Quest. Whether to confer with the Judges
in the presence of the king and council ? Which
was resolved in the affirmative. And a select
Committee presently named for the conference ;
viz. Lawyers; Serjeants Tanfield, Hob bard,
Leigh/ Shirley, Dodridge, sir Tho. Hesketh,
sir Fr. Bacon, Mr. Recorder of London, Mr.
Yelverton, Mr. Crewe, Mr. Lawrence Hide,
Mr. Fr. Moore, Mr. Rd. Martin, Mr. Winche,
Mr. Dyett, Mr. Fuller, sir Roger Wilbraham,
Mr. Fr. Tate, Mr. Dr. James, sir Daniel Dunn,
sir John Bennet.— Gentlemen ; sir George
Carew, Vice-Chamberlain to the Queen; sir
Fr. Hastings, sir Edw. Hobby, sir Robert
Wroth, sir Henrv Nevill, sir John Savile, sir
George Moore, Mr. Nath. Bacon, sir Edw.
Stafford, sir Wm. Fleetwood, sir Tho. Chal-
loner, sir Roger Aston, sir Robert Wingfield,
sir Edw. Mountague, sir Edwyn Sandis, sir
Robert Cotton.

These Committees were selected and ap-
pointed to confer with the Judges of the Law,
touching the Reasons of proceeding in sir
Francis Goodwin's Case, set down in Writing,
and delivered to his majesty in the presence of
Hie lords of his majesty's Council, according to
hishiehness's pleasure, signified by Mr. Speaker
this day to the house. — It was further Resolved
and Ordered by the bouse, (upon the motion to
that end by Mr. Laurence Hide) that the
aforesaid Committee should insist upon the
fortification, and explaining of the Reasons
and Answers delivered unto his majesty ; and
not proceed to any other Argument or Answer,
what occasion soever moved in the time of that
debate.

Die Mercuriiy viz. 11 die Aprilis, 1604. Upon

Adjournment.

Sir Francis Bacon was expected, and called
to make -a Report of the late Conference with
the Judges in the presence of his majesty and
the lords of the Council : but he made excuse,
saying, He was not warranted to make any
Report ; and tuntum permissum quantum corn*
missum : nevertheless, upon a Question, he was
over-ruled to make a Report ; and a motion
thereupon made, That the Committees might
first assemble in the Court of Wards, and con-
fer among themselres, and then the report to
be made.

Sir Francis Bacon, after the meeting of the
Committees in the Court of Wards, reported*

; >r.vl!i TRIALS Uames I. I60k— The Cast betvxen Sir Francis Goodwin, [112

-.:.:. ha»i u-u^fa :u Cuoxmnce in the presence
-, • i ? ^i^ir^^ ind hi* Council :

I :»c «ii.£ soa-i. He would be president him-
vii. Vi*> Art^iidapce renewed the remera-
;»*\.iic* Ji *;ie last, when we departed with sucn
.uim. i r4u<»u. It was the voice of God in man :
. .c 4^xM *ptnt oi God in the mouth of man. I
uo :toc -my, toe voice of God, and not of man.
' *n* not on? of Herod's flatterers. A curse
ivii ii|vu turn that said it : a curse on him that
Mt.lvrvd it. We might say as was said to Solo-
mon, We are glad, O king ! that we give
accouut to you, because vou discern what is
>evkeu. — We let pass no moment of time,
until wo had resolved and set down an answer
m writing, which we now had ready. Thut
»u hence we received a message from his nia-
%ie;»iy by Mr. Speaker, of two parts : 1. The
one* paternal. 2. The other royal. 1. That
w» were as dear unto him as the safety of his

{»er*on, or the preservation of bis posterity. 2.
t«\val, that we should confer with his Judges,
and tluit in the presence of himself and his
council. * That we did more now to king

* James than ever was done since the conquest,

* in giving account of our judgments/ That
«\c hud no intent, in all our proceedings, to
encounter his majesty, or to impeach his
honour or prerogative.

This was spoken by way of preamble by him
you employed.

How to report his majesty's Speech he
knew not ; the eloquence of a kiug was inimi-
table. The King addressed himself to him as
deputed by the house, and said, He would
make three parts of what he had to say. The
cause of the meeting was to draw to an end
the difference in sir Francis Goodwin's Case.
If they required his absence, he was ready ;
because he feared he might be thought inter-
ested, and so breed an inequality on their part.
He said, That he would not hold his Prero-
gative or honour, or receive any tiling of any
or all his subjects. This was his magnanimity.
That he would confirm and ratify all just Pri-
vileges. This his bounty and amity. As a
king, royally : as kiug James, sweetly and kindly
out of his <rnod-nature. — One point was, Whe-
ther we were a Court of Record, and had
power lu jud«;c of Returns. As our court had
power, so had the Chancery; and that the
court that first had passed their judgment
should not be controlled. — Upon a surmise,
and upon the sheriff's return, there grew a
difference. That there are two powers. 1.
Permanent : the other, transitory. That the
Chancery was a confidenciary court to the use
of the parliament durittg the time. — What-
soever the Sheriff inserts beyond the ant ho-
rity of his muudatc, a nugation. The parlia-
ments o( England not to he bound by a she-
riff's return. — That our Privileges were not in
question. That it was private jealousies with-
out any kernel or substance. ' He granted it
was a Court of Record, and a Judge of Re-
turns/ He moved, That neither sir John For-
tescue. nor sir Francis Goodwin might have

place ; fir John losing place, his majesty did
meet us halt- way. That when there did arise
a schism in tlie church between a Pope and an
An tip ope, there could be no end of the differ-
ence until they were both put down.

Upon this Report, a motion was made,
Tha,t it might be done by way of warrant ; and
therein to be inserted, That it was done at the
request of the king : and was further said, (as
anciently it hath been said) That we lose more
at a Parliament than we gain at a battle. That
the authority of the committee was only to
fortify what was agreed on by the house for
answer, and that they had no authority to con-
scut. — It was further moved by another, That
we should proceed to take away our dissention,
and to preserve our Liberties ; and said, that
in this we had exceeded our commission ; and
that we had drawn upon us a note of incon-
stancy and levity. But the acclamation of the
house, was, That it was testimony of our duty,
and no levity. So as the question was pre-
sently made.

Quest. Whether sir John Fortescue and sir
Francis Goodwin shall both be secluded, and a
warrant for a new writ directed ? And upon
the question resolved, That a writ should issue
for a new choice, and a warrant directed ac-
cordingly.

A motion made, That thanks should be pre-
sented by Mr. Speaker to his majesty, for his
presence and direction in this matter ; and
thereupon ordered, That his majesty's pleasure
should be known, by sir Roger Astou tor their
attendance accordingly.

Because it hath been conceived by some,
that sir Francis Goodwin being the member
specially interested, it were lit he should give
testimony of his liking and obedience in this
course : being dealt withal to that end, he writ
his letter to Mr. Speaker; which, before this
question made, for better satisfaction of the
house, was read in these words:

* Sir ; I am heartily sorry to have* been the
1 least occasion either of question between his
' majesty and that honourable house, or of in-

* terruption to those worthy and weighty
1 causes, which by this time, in all likelihood,
' had been in very good furtherance: where-
' fore, understanding very credibly, that it
' pleased his majesty, when the committees hist
( attended him, to take course with them for a
' third writ and election for the knights hi pot' the
'county of Buckingham: 1 am so far from
' giving any impediment thereunto, that con-
4 trariuise, I humbly de>ire his majesty's direc-
*' tion in that In-half to be accomplished and
' performed. So praying you, according to
( such opportunity as will he ministered, to «:ive

* furthcranci: thereunto, 1 take my leave, and
1 rest yours, most a^ured to he commanded,
' Fit a. Goodwin. Westminster, 11 Apr. 1604/

Die Jori*9 \'iz. 12 die Apt His.
A motion made, That Mr. Speaker, in behalf
of the house, should pray access to his majesty,
and present their humble Tluuiks for his graci-
ous presence and direction, upon the hearing of

1 1 $] STATE TRIALS, 2 James I. 1 605 The Case qf Mixed Money in Ireland. [11*

ftr Francis Goodwin's cause; which was as-
sented unto ; and sir Roger Aston, a servant
of his majesty's bed-chamber, and one of the
members of the house, was presently appointed
to know bis majesty's pleasure ; which he did
accordingly ; and returned, That his majesty
was willing to give them access in the gallery
at Whitehall, at two o'clock in the afternoon,
the same day. Thereupon a Committee was
tamed to attend Mr. Speaker to the king,
«kb a general warrant to all others that should
fee pleased to accompany them.

Die Veneris, viz. 16 die Aprilis.

Mr. Speaker retunieth to the house the effect
of his Message of Thanks, delivered the last
day in the name of the house to his majesty ;
as also his Majesty's answer, viz. " That lie re-
lated to this house the humble and dutiful ac-
ceptation of what his majesty had done, together
with the humble thanks of the house for his
teulous and paternal delivery of his grace unto
w, bv his own mouth : what wonder thev con-
wived in his judgment, what joy in his grace,
what comfort they had in his justice, what
approbation they made of his prudence, and
what obedience' they yielded to his power and
pleasure. That his direction gave all men
satisfaction. That they were determined to
pwsue the course lie had prescribed. That
Dow they were become suitors, he would be
pleased to receive a representation of the hum-
ble thanks and service of the house."

His majesty answered. '• That upon this se-
cond access, he was forced to reiterate what he
Had said before. That this question was un-
Imppily cast upon him, for he carried as great
R respect to our privileges as ever any prince
•lid ; he was no ground searcher; he was of the
mind that our privileges were his strength :
that he thought the ground of our proceeding
*as oar not understanding that he had inter-
neddled before we had decided : that he thought
iho we had no wilful purpose to derogate any
riane from him, for our answer was a grave,
faihj!, and obedient answer. But as the
*t*il had unhappily cast this question between
fag, so he saw God had turned it to two good
*Ms and purposes. One, That lie knew, and
fed approved our loyalty. Another; That
b1 hid so good an occasion to make testimony
"i his bounty and grace. That as we came

to give him thanks, so did he redouble his
thanks to us. That he had rather be a king
of his subjects, than to be a king of many king-
doms."

The second part of his Speech directed to
the Lords and Us, u That this Parliament was
not like to be long : that we would treat of such
matters as most concerned the Commonwealth;
and the last, of any thing that concerned him-
self. Three main businesses in our hands.
1. The Union. 2. Sundry public and com-
monwealth-Bills. . 3. Matter of religion, and re-
formation of Ecclesiastical discipline. For the
Union, that it might be now prepared, and pro-
secuted the next session. That Union which
with the loss of much blood could never be
brought to pass, as now it is. That the better
to bring it to pass, we should be in affections
united. That we should first with all care pro-
ceed in such laws as concern the general good.
That all heresies and schisms might be rooted
out, and care taken to plant and settle God's
true religion and discipline in the church.
That this wish above all things was at his death
to leave, 1. One Worship to God. One King-
dom entirely governed. One Uniformity m
Laws. Lastly, That his occasions were infi-
nite, and much beyond tho«e of his predeces-
sors ; and therefore that in this first parliament
we would not take from him that which we had
yielded to others. That in his affections he
was no ways inferior to others, nor in his de-
sire to ease us."

The Warrant for a new Election of a knight
for Bucks, read -and allowed in this form :

'.Whereas the right honourable sir John
' Fortescue, knight, Chancellor of his majesty's

* Dutchy of Lancaster, and sir Francis Good-
' win, knight, have been severally elected and

* returned knights of the Shire for the county

* of Bucks, to serve in this present parliament:
' upon deliberate consultation, and for some
' special causes moving the commons house of
' parliament, It is this day ordered and re-
1 quired by the said house, That a Writ be
< forthwith awarded for a new election of ano-
1 ther knight for the said Shire : And this shall

* be your Warrant/

Directed, ' To my very loving friend, sir
' George Coppin knight, Clerk of the Crown iu
' his majesty's High Court of Chancery.*

78. The Case of Mixed Money in Ireland, Trin. 2 Ja3ies L

a. d. 1605. [Davies's Reports.]

[u As tlie following Case relates to the King's
Prerogative of regulating the Coinage * and
Value of Mooey, in uhich the whole State is
so immediately and essentially interested, it

• The royal prerogatives of regulating the
Coinage and Value of Money, and the history
•f the exercise of those prerogatives arc well
exhibited in the earl of Liverpool's Treatise on
ike Corns of this realm.

VOL. II.

properly falls within the scope of this Collec-
tion. It is taken from tUe English edition of
sir John DavicsS Kepoi ts." llargrave.]

V UERN" Elizabeth in order to pay the royal
army which was maintained in this kingdom lor
several years, to suppress the lebollion of
Tyrone, caused a great quantity of Mixed Mo-
ney, with the usual stamp of the arms of the
crown, and inscription of lier royal stile, to be
l

115]

STATE TRIALS, 2 Jambs I. 1605.— The Case qf Mixed Money

[110

coined in the Tower 'of London, and transmit-
ted this money into this kingdom, with a Pro-
clamation, bearing date 24 May, in the 43d
year of her reign, by which her majesty declar-
ed and established this Mixed Money, immedi-
ately after the said proclamation, to be the
lawful and current money of this kingdom of
Ireland, and expressly commanded that this
money should be so used, accepted and reputed
by all her subjects and others, using any traffic
or commerce within this kingdom ; and that if
any person or persons should refuse to receive
this Mixed Money according to the denomina-
tion or valuation thereof, viz. shillings for shil-
lings, sixpenny pieces for sixpenny pieces, &c.
being tendered tor payment of any wages, fees,
stipends, debts, &c. they should be punished as
contemners of her royal prerogative and com-
mandment. And to the intent that this Mixed
Money should have the better course and circu-
lation, it was further declared by the same pro-
clamation, that after the 10th day of June im-
mediately following, all other money whirh had
been current within this kingdom, before t he said
proclamation, should be cried down and annul-
led and esteemed as bullion, and not as lawful
And current money of this kingdom.

In AprH, before this Proclamation was pub-
lished, when the pure coin of England was cur-
rent within this kingdom, one Brett of Droghe-
da, merchant, having bought certain wares of
one Gilbert in London, became bound to the
said Gilbert in an obligation of 200/. on condi-
tion that he should pay to the said Gilbert, his
executors or assigns, 100/. sterling, current and
lawful money of England, at the tomb of earl
Strongbow iu Christ-church, Dublin, at a cer-
tain day to come ; at which day and place,
Brett made a tender of the 100/. in the Mixed
Money of the new standard, in performance of
the condition of the obligation ; and whether
this tender was sufficient to save the forfeiture
of the obligation, or whether the said Brett
should now, upon the change or alteration of
money within this kingdom, be compelled to
pay the said 100/. in other or better coin than
in the Mixed Money, according to the rate and
valuation of it, at the time of the tender, was
the question at the council table, where the said
Gilbert, who was a merchant of London, exhi-
bited his Petition against the said Brctr, for
the speedy recovery of his debt aforesaid.

And, inasmuch as this case related to the
kingdom in gent ral, and was also of great im-
portance in consideration and reason of state,
sir George Carew, then Lord Deputy and also
Treasurer, required the Chief Judges, (being of
the privy council) to confer on and consider this
Case, and to return to him their Resolution
touching it ; who upon conference and consi-
deration on all the points of the said Proclama-
tion, resolved, That the tender of the 100/. iu
the Mixed Money, at the day and place afore-
said, was good and sufficient in the law, to save
the forfeiture of tlie said obligation, and that
Brett should not be obliged at any time after,
to pay other money in discharge of the debt,

than this Mixed Money, according to the rate
and valuation that it had, at the time of the
tender; and this Resolution was certified by
them to the Lord-Deputy, and the certificate
entered in the Council-Book. And in this
case divers Points were considered and resolved*
First, it was considered, that in every com-
monwealth, it is necessary to have a certain
standard of money. [Cotton 4.] For no Cora*
mon wealth can subsist without contracts, and
no contracts without equality, and no equality
in contracts without money. For although
in the first societies of the world, permutation
of one thing for another was used, yet that
was soon found cumbersome, aud the transpor-
tation and division of things was found difficult
and impossible ; and therefore money was in-
vented, as well for the facility of commerce, as
to reduce contracts to an equality. ' Cum non
' facile concurrehat, ut cum tu habercs quod
' ego desiderarem, ego invicem haberem quod tu

* accipere velles, electa materia est, cuius pub-

* lica et perpetua inestiatio difficultatibus per*
1 mutationem subveniret.' Paul. lib. 1. ff.de con*
' trahendis empt.' and therefore money is said
by Bodin to be mensura publico ; and Budclius
lib. 1. De re nammaria, ca. 3. saith ' moneta

* est justum medium et mensura rerum com-
' mutabilium, nam per medium monetae fit om-
' nium rerum, quae in mundo sunt, conveniens et
'justa aestimatio.' And to this purpose Keble
saith, 12 H. 7. 23. b. that every thing ought to
be valued per argent ; by which word argent,
he meanetd money coined. And the great utility
of a certain standard of money and of measures
is well expressed by Budelius in .this verse,

Una fides, pondus, mensura, moneta sit una,
Et status illsesus tot i us orbis erit.

Secondly, it was resolved, That it appertain-
eth only to the king of England, to make or coin
Money within his dominions; [2 Ro. ab. 166. 1
Co. 146. 5 Co. 114. 1H.1I. P.C.188.] so that
no other person can do it without special license
or commandment of the king ; and if any per-
son presume to do it of his own head, it is trea-
son against the person of the king by the com-
mon law ; and this appears by the stat. of 95
Edw. 3, c. 2, (which is only a declaration of
the common law,) and by Glanvil, Britton and
Bracton, before that statute, Stamford fol. 9
and 3. And in the case <»f Mines, Plowd. 316,
a. this point is expressed more clearly, where it
is said, That the king shall have mines of gold
and silver ; for if a subject had them, he by
law could not coin such metals, nor stamp a
print or value upon them, for it appertained! to
the king only to put a value upon coin, and
make the price of the quantity, and to put a
print to it ; which being done the coin is cur-
rent ; and if a subject doth this it is high trea-
son at common law, as appears, 23 Ass. p. 9.
and it is hieh treason to tho king, because be
hath the sole power of making Money, 6rc.

And in this book three things are expressed,
which are requisite to the making of lawful
money, viz. The authority of the Prince, the
Stamp, and the Value. But upon the cons**

STATE TRIALS, 2 James I. 1603.— in Ireland.

117]

deration of the case in question, it was observ-
ed, that six things or circumstances ought to
concur, to make lawful and current money, viz.
1. Weight. 3. Fineness. 3. Impression. 4.
Denomination. 6. Authority of the Prince.
6. Proclamation. [See 1 H. H. P. C. 196,
that Proclamation is not always necessary ]
Far every piece of money ought to have a cer-
tain proportion of weight or poise, and a cer-
tain proportion of purity or fineness, which is
piled alloy. Also every piece ought to have
s certain form of impression, which may be
tamable and distinguishable ; for as wax is
aot a teal without a stamp, so metal is not
without an impression : ' Et rooneta
r a mooendo, quia impressione nos mo-
, cujus sit moneta. Cujus imago est
? Cse»aris : Date Caesari quae sunt Cse-
Also every piece of money ought to
•are a denomination or valuation for how
such it shall be accepted or paid, ns for a
penny, a groat or a shilling. And all this
ooght to be by authority and commandment of
the prince, for otherwise the money is not law-
ns' ; and it ought to be published by the pro-
clamation of the prince, for before that, the
■oney is not current, — These circumstances
appear in the antient ordinances made by the
bag for the coinage of money, as well in this
kingdom as in England, which are to be found
■ the Tower of London there, and in the Cas-
tle of Dublin here. Also the indentures be-
tween the king and the masters of the mint
prescribe the proportion of weight, fineness,
sad alloy, the impression or inscription, the
same and the value- " See the suit. 2 Hen. 6,
a If, where mention is made of these inden-
tures; see also Wade's case, 5 Co. 1 14. b. that
ike king by his proclamation may make any
turn lawful money of England ; d fortiori, he
nay, by his proclamation only, establish the
•caodard of money coined by his authority
within his own dominion*.

And that the king by his Prerogative may
ska pat a price or valuation on all coins, up-
start by » remarkable case, 21 Kdw. 3, 60, b.
tstke tune of Will, the Conqueror, the abbot
•f St. Edniundsbury complained to the king in
parliament, that whereas he was exempted
msi the jurisdiction of the ordinary by divers
satin* charters, the bishop of Norwich had
lisited his house, contrary to those charters of
exemption ; upon which it was granted and or-
aaioed in parliament, that if from thencefor-
ward the bishop of Norwich or any of his suc-
cessors should go against the aforesaid exemp-
tion, they should pay to the king or his heirs
tasty talents or besaunts. Afterwards in the
time of Edw. 3, the bishop of Norwich visited
the house again, against tlie ordinance afore-
said; and this contempt being found in the
RiQgVbeoch, a srire facias issued against the
kisaop to shew why he should not pay to the
kief the thirty talents or besaunts ; and upon
an insumcieot plea pleaded by the bishop, the
court awarded that they should recover tlie ta-
Isats or besaunts, and that it should be ioter-

[J1S

preted hy the king himself of what value they
should be, more or less ; , hy which it is manl-
iest that where talents or besaunts, or such
other pieces or quantities of gold or silver are
of uncertain value, fur Budelius saith that ' ta-

* letita sunt varia, et pondera sunt, potius
' quam numismata', the king hath a power to
put a certain value upon them, according to
the rule well known to the civilians, * monetae
' aestimationem dat, qui cudendi potestatem

* habet.' And in this point the common, law
of England agrees well with the rules of the civil
law, « jus cudendae monetae ad solum princi-
1 pern, hoc estyiinperatorem, de jure pertinet.
' Monetandi jus priucipum osstbus inhaeret,
' Jus monetae comprehenditur in regalibus,
' quae nunquatn a regio sceptro abdicantur.'—
Yet by antient charters, this privilege or prero-
gative hath been communicated to some sub-
jects in England ; as, to the archbishop of
Canterbury by charter of king Athdstan,
Lamb, peramb. Kant. fol. 291. The archbi-
shop of York and bishop of Durham had mines
and power of coining money, as appears by
the statute of 14 Hen. 8, c. 12. ; and the dean
of St. Martin's-le-grand had the same privilege,
as is manifest from the stat. of 19 Edw. 4, c. 1.
And this right of coining money hath been
granted to several great personages in France
heretofore, as Choppinus relates, lib. de Doma-
nio Franc, fol. 217, u. And this prentgative
at this day is imparted too generally to all the
inferior princes and states of Germany by
grant or permission of the emperor ; for it is a
law of the empire,. * Jus cudenda: monetae, nisi
( cui ah imperatore concessum fuerit, nemo
' usurpato.'

Thirdly it was resolved that as the king by
his prerogative [J H. II. P. C. 192] may
make money of what matter and form he
please th, and establish the standard of it, so
may he change his money in substance and im-
pression, and enhance or debase the value of
it, or entirely decry and annul it, so that it shall
be but bullion at his pleasure. And note, that
bullion, which in Latin is culled billio, 'est
« moneta defensa et proliibita, qua videlicet

* usu caret/ And that the king hutli used this
Prerogative in England, appears, by several
notorious changes of money, made in the time
of several kings since the Norman conquest.
26 Hen. 2, ' Monetu veteri reprobata, nova

* successit.' Matt. Paris Hist. mag. fol. 35. a.

— Anno 7 Joh. a tiew money whs coined, at

which time the first sterling money was coined,

according to the opinion of Camhden, where he

speaketh'of Sterling-Castle in Scotland, fol. 700

h. — 32 Hen. 3, the king was obliged to make

new money, ' cum moneta Angiia1 circumcide-

4 batur a circumcisis Jurheis,' as Matt. Pari*

saith, fol. 703. a.— 7 Ed. 1, the standard of

money was renewed, when the sterling penny

was established to contain ' viccsimam partem

4 unciaV as appears by the old Manna Charta,

in the ordinance called Compositio MeHturarwn,

where it is ordained, * quod viginti denarii

4 fuciant unciam.'— Aauo 29 Ed. 1. when the

119]

STATE TRIALS. 2 James I. 1<K)5.— The Case of Mixed Money

[120

money called Pollards was cried down, a new
sterling money was also coined ; see 6 Ed. 6.
Dyer 82. b. et lib. rubr. Scacc. Dobl. part 2.
fol. l^b. After this new monies were made,
9 Ed. 3, and 13 Hen. 4, and 5 Ed. 4, and 19
Hen. 7, and 36 Hen. 8 ; and lastly 2 Eli*.,
when all mixed and base money was cried
down, and the standard of pure silver establish-
ed, which continues to this day, of which Bod in
maketh honourable mention, Libro 6 de Re-
publica, cap. 3.

And it seems these changes of money in
England were made by the authority of the
king without Parliament : although several acts
of parliament have been made for the ordering
of exchange, and to prohibit the exportation of
money made and ordained by the king, and the
importation and utterance of foreign and false
money, under certain pains and penalties, of
which some were capital and some pecuniary.
And several ordinances of the king made with-
out the parliament are called statutes; as
Statutumde Moiietsi magnum, et Statutum de
IUoneta pun u m : winch are called statutes,
because the ordinance of the king with pro-
clamation in such case hath the force of an act
of parliament.

And as the king hath used to change the
standard of his money, to wit, the form and
the substance, so hath be used by his preroga-
tive to enhance or debase the value of it, not-
withstanding that the form and substance con-
tinue! h as it was before, [l H. II. P. C. 192.]
And thi> was done, 5 Ed. 4, as appears by the
book, of 9 Ed. 4. 49, "here Danby saith, that
a Noble was better then, than it was anno 20
of that king, by 20 d. in each Noble. And
king Hen. 8, by special commission dated 24
July, anno 18 of bis reign, authorised cardinal
Wolsey, with the advice of other of the privy
council, to put a value on all the moneys of
England, from time to time, accordiug to the
rates and values of the monies of foreigu
nations, which were then too much enhanced,
especially by the emperor and the king of
France, as is expressed in the said commission.
See also 6 and 7 Ed. 6. Dyer 82 and 83. several
cases on the debasement of money. — And it ib
to be Observed, that between the 36 of Hen. 8,
when several sorts of debased money were
coined in England, and 2 Eliz., when the pure
standard of silver money was established, there
were three notorious falls or cry-downs, of base
monies, published by proclamation : the first,
9 July, 5 Ed. 6. ; the second, 17 August, the
same year, as is mentioned, Dyer 83, a. ; the
third, 28 Sep. 2 Eliz.

And as the king hath always used to make
and change the money of England, he hath
aiso used the same prerogative in Ireland ever
since the )2th year of king John, when the
fir?t standard of English money was established
in thi* kingdom, as is recorded by Matt. Paris,
Magn. Hi*t. 220. b. where it is said, that this
king being in Ireland, * constituit ibidem leics
* et GOiibuetudinet Auglicanas, ponens ibidem
' vicecomites, ahosque minUtros, qui popuUitn

' regni illius juxra leges Anglicanas judicarent..
' Prsfecit autem ibidem Johannem de Gray
' episcopum Norwicensein, justiciarium, qui
' denanum terr&e illius ad pondus numismatit
' Anglis fecerat publicari, et tarn obolum quam
' quadrantem rotund urn fieri precepit : jussit
' quoque rex, vt illius monetae usus tarn in An-
' glia quam in Hibernia communis ab omnibus
' haberetur, et utriusque regni denarius in the-
' saurissuUindifterenter poneretur.' — By which
it appeareth that the standard of money ia.
England and in Ireland was equal at first, and
that the English money was not a fourth part
better in value than the Irish, as it hath been
since the time of Ed. 4., for before that, as
there was one and the same standard of money
in both kingdoms, so always when the money
was changed in England, it was also changed
in Ireland. As in the year 1279, viz. 7 Ed. 1.
when that king established new money in Eng-
land, as js shewn before, there was likewise a
change of money in Ireland, as is observed in
the annals of this kingdom, published by Cwnb-
den in his Britannia, where it is said, that in
the year 1279, ' Doininus Kobertus de Urford
' justiciarius Hibernia intravit Angliam, ct con-
' stituit loco fratrem Hobertum de Fulboroe

I episcopum Waterford, cujus tempore mutata
' est moneta.' So 29 Ed. 1. when by special
ordinance of the king the Pollards and Crockards
were decried and annulled, the same ordinance
was transmitted into this kingdom and enrolled
in the Exchequer here, as is found in Lib. Rubr.
Scacc. part 2, fol. 2. b. Also' in the annals
aforesaid it is observed in the same year,
' numisma pollardarum probibetur in An glut et
' Hibernia. And as the standard of the mow
nies was equal, so the mints and coinage in
this kingdom were ordered and governed in the
same manner as in England, as appears by the
accouut of Donat and Andrew de Sperdshols,
assay masters in Dublin, 9 and 10 Ed. 1. in
Archivis Cnstri Dublin, and in Libr. Rubr.
Scacc. hie part 2. fol. 1. and in Hot. Pari, in
Castri Dublin, 12 Ed. 4. c. 60. See also
several ordinances there touching the mint and
monies, 7 Ed. 4. c. 9. 10 Ed. 4. c. 4. 16 Ed*
4. c. 2. 19 Ed. 4. c. 1. 1 U. 3. c. 7.

But the first difference and inequality be-
tween the standard of English and Irish monies,
is found in 5 Ed. 4. for then it was declared in
parliament here, that the Noble made in the
time of Ed. 3, Rich. 2, Hen. 4, Hen. 5, and
linn. 6, should be from that time forth current
in this kingdom for 10s. and so of the demy-
noble, and all other coins according to the
same rate. See Rot. Pari. 5 Ed. 4. c. 40. and

II Ed. 4. c. 6. and 15 Ed. 4. c. 5. in the
Roll's-otiice in the Castle of Dublin. After
which time the money made in Ireland or for
Ireland was always less in value than the
money of England, and the usual proportion of
the diifere ncc wa» the fourth part only, viz. the
Irish shilling was only 9</. Enclish. See the
proclamation aforesaid, dated the 44 of May,
43 Eliz. enrolled in the Chancery here, where
the queen makes mention of this difference

121]

STATE TRIALS, 2 Jambs I. 1605.— in Inland.

[122

Bade by her progenitors between the standard
of money made for this kingdom, and the
money of England. And note, that that which
it called the standard of money in this case,
is the same which is called by the French pied
it moncy7 by Bodin pe$ monetarum ; as if the
prince there pedemjigat, having established the
weight and purity of money in a certain pro-
portion, which should not be transgressed by
tk mooeyers.

And so it is manifest, that the kings of
iagnuid have always had and exercised this
prerogative of coining and changing the form,
ad when they found it expedient of enhancing
aad abasing the value of money within their
dominions : and this prerogative is allowed and
approved not only by the common law, but
ako by the rules of the imperial law. Bude-
lias de re nomroaria, libr. 1. c. 5. ' Princeps
' ad arbitrium suum, irrequisito assensu subdi-
i torum, valorem monetae constituere potest ;
* quia populus, quantum ad hoc, omnem potes-
' totem et jurisdictionem in principem seu im-
4 perotorem transtulisse dicitur.' And a little
titer in the same chapter, although some doc-
tors are of opinion, * principem sine assensu
4 popuh inonetam mutare non posse,' yet be
coockides, ' si princeps consuevisset mutare
1 monetam auctoritate propria, sine consensu
1 popuii, * tempore cujus mitii memoria nen
'existit, tunc libere imposterum eura hoc fa-
'cere pane. L. hoc jure Paragr. ductus aqua*.
1 ff. de aqoia quotid. &c.' And Covarruvias,
fibre de collatiooe vet em m numismatum, cap.
D* awttrione monetae, saith, ' princeps potest
'autare monetam ratione publics utihtatis,'
ul * tempore belli, vel si alias utile populo sit
'fanruni, ita etiam, ut ex corio fieri possit.'
lad it is observed by Molineus, libro de lnu-
taioee moneta, cap. 100/ that the state of
Boom in the first Punick war, when Hannibal
ktd posse jo ion of a great part of Italy, and all
tfeeir treasure was exhausted, enhanced base
aomey to a great value, for the payment of
&eir armies ; and yet the justice of that state
*utaen famous throughout the world. But
1 Mi est magis justum, quam quod necessa-
<r*ai' by which it appears, that the mixed
ateey «as made by queen Eliz. on a just and
■noenble cause.

Fourthly, it was resolved, that the said
aised money having the impression and in-
scription of the queen of England, and being
proclaimed for lawful and current money within
nil kingdom of Ireland, oujjit to be taken
tad accepted for sterling money ; and on con-
■deration of this point, the name and the nature
of Sterling Money were enquired and disco-
vered. As to the name of Sterling home doc-
tat of the civil law, being deceived by the
erroneous report of Polydore Virgil, have con-
tored, that this English money was called
Whng, because the iorm of a store, the dimi-
Muve of which is sterling, was imprinted or
tamped upon it, and therefore Covarruvias,
U». de coUatkme veterum numismatum, c. 2.
'rterlsng' (taith he) ' est argenteus nummus

I

1 Anglicus ex vicesima sexta parte unciss, nam
' viginti sex nummi argentei sterling pendebant

< unciam, auto re Polydore Virgil 10, in Hist.
' Anglica, lib. 16. Dictus autem est hie ntun~

* mus, ut idem author tradit, sterling, quoa

< sturnus avis, Anglice a sterling, in altera
' parte nummi esset impressa.' To the same
purpose Choppinus de Domanio Franc, lib.
2. tit. 7. hath this note, caterum Enrico 3..
1 Britannia rege, primum percussa est nunc
' usitatissima sterhngorum moneta, ab effigie
c sturni sic dicta, anno 1249.'; These doctors
being strangers, were, it seems, misinformed by
Polydore Virgil, who was also an alien and a
stranger. Cut our Linwood also (who made
his Gloss on the provincial constitutions of Eng-
land, in the time of lien. 6.) tit. de testam.
C. Item, quia, verbo, Centum solidos, saith,
' sterling nomen erat argentes moneta;, et ha-
' bebat similitudinein denarii usual is, kioc salvo,
' quod in uoa quarta habebat eftigiemavis, qua;
1 vocatur sturnus, Anglice, sterling/

Others have been of opinion, that tins Eng-
lish money had the name of Sterling, because
the first money of this standard was coined in
the Castle of Sterling in Scotland by king Ed.
1. But this is also an erroneous opinion, as is
noted by Cambden in Scotia, pag. 700. where
speaking of Sterling-Castle, he saith, that * qui-

* dam monetam probam Angliae quae sterling
' money dicitur, bine denominatatn volunt,
' frustra sunt ; a Germ an is enim, quos An-
' gli Esterlingos ab orientali situ vocanint,

* facta est appellatio ; quos Johannes rex, ad
i argentum in suam puritatem redigendum,
1 primus evocavit; et ejusmodi nuinmi, Ester-

* lingi, iu antiquis scrip tuns semper reperi-
' untur.'

And this latter opinion, without doubt, is the
better and more probable, by the judgment of
all the most learned antiquarians of England.
For in all the antient statutes which make
mention of this money, it is called ester ling..
As 9 Ed. 3. c. 2. &c. ' no false money coun-
terfeit esterling shall be imported into our
realm ;' and the same year c. 3. ' no esterling
halfpenny or farthing shall be molten to make
vessel/ &c. and 25 Ed. 3. c. 13. ' the money of
gold and silver, which is now current, shall not
be impaired in weight or allay, but shall be put
in the antiont state as in the esterling.9 And
Matt. Pans, Magn. Hist. fol. 403. where he
expresses the form of the obligation made by
the clergy of England to the pope's bankers
resident in London, makes mention of this
money by the name of esterling ; ' Noveritis

* nos rccipisse ab (A. and B. &c.) centum unci-
( as bonorum ct legalium esterlingorum, tresde-
' cim solidis et nuatuor sterlingis pro qualibet
' unciu compututis.' And the same author, fol.
710, saith, * eodem tempore moneta Ester-
' lingorum, propter sui materiam desiderabilem,
' dete>tabili circiuncisione cxpit deteriorari et
' corruinpi.* And fol. 575. ' Comitissa de
4 Biarde venit ad rcgein cum 60 militibus,
1 durta cupidine Esterlingorum, quibus noverat
' regein Angliae abundare, et accepit a rege

123] STATE TRIALS, 2 Jambs I. 1 GOo.—The Cast qf Mixed Money [J 24

* qaalibet die pro stipendio tresdecim libras

* Esterlingorum, &c.' And Hovedeo in Rich.
1. fol. 377. b. makes mention of this money in
these words, ' videus igitur Galfridus Ebora-

* censis electus, quod nisi mediante petunia
' amorem regis fratris nullatenus habere possir,

* promisit ei (ria initlia libraram Sterlingorum
4 pro amore ejus habendo ;' and this was
before the time of king John ; from whence
it seems, that the time when this money was
first coined is uncertain ; for some say that it
was made by Osbright a king of the Saxon race
160 years before the Norman Conquest. And
so as Nummus is called from Numa, who was
the first king who made money in Rome, so
Sterling is called from the Esterlings who first
made the money of this standard in England,
by a metonymia, substituting the name of the
inventor for the thing invented, as Ceres pro

frumento, Bacchus pro vino9 &c.

And it is to be observed, that the Esterlings
were the first founders of the four principal
cities of Ireland, viz. Dublin, Watcrford, Cork
and Limerick, and of the other maritime towns
in this kingdom, and were the sole maintainers
of traffic and commerce, which was utterly
neglected by the Irish. These cities and towns
were under the protection of king Edgar and
Edward the Confessor before the Norman Con-
quest: and tliese Esterlings in the antient
records of this kingdom are called Ostmanni.
And therefore, when Hen. 2. upon the first
conquest, thought it better to people these
cities and towns with English colonies taken
from Bristol, Chester, &c. he assigned to these
Ostmen certain proportion of land next adjoin-
ing to each of these cities, which portion is
culled in the records of antient times, Cuntreda
Ostmannorurn. And all this was observed on
the name of Sterling.

For the nature or substance of this money,
first it was observed, that the coin which was
properly called the Sterling was the denier or sil-
ver penny, as appears in the ordinance called
compo&itio mensurarum made in the time of E. 1.
where it is said, * denarius Anghre, qui nomi-
( natur sterlingus rotundus, sine tonsura, pon-
' derabit triginta et duo grappa in medio spicae,'
&c. and every other coin or piece of silver
was measured by the sterling penny, as the
groat contained the value of four sterlings,
and the half groat the value of two sterlings,
25 Edw. 3. c. 6. and the shilling consisted of
twelve sterlings, Lin wood de Testament is, C.
item quia, verb. Centum solidos ; and the Mark
consisted of 13s. and four sterlings, as before
is shewn from Matt. Paris; and the maile
(half-penny) was the half of a sterling ; and the
farthing the fourth part of a sterling. See an
ordinance without date in the Magna Charta
printed by Tottel, anno 1556, fol. 167, and in
Rastall's old Abridgment, money 52, ( quia
cinultorum regum temporibus provisum fuit,
4 quod propter pauperes denarius argenti, viz.

* sterlingus, divideretur in obolum et quad ran-
4 tern, ex parte domini regis precipitur, quod

* quicunque recusavcrit obolum Tel qoadramem

' debitam habentem fbrmam, capratur.' See 6
and 7 Ed. 6. Dyer 82, in the case of Pollards,
where it appears that a sterling and a denier
were the same ; for there it is said that two
pollards passed for one sterling, and accord-
ingly two sterlings* were paid for one denier.
And indeed in antient tune, every sort of
money, made of the several metals of which
money was usually coined, was properly called
a denarius ; and therefore the French and Ita-
lians speak properly, when they call all money
deniers and denarii, for coins (nummi) were
either copper, silver or gold : each silver one
was worth ten of copper, and so was called a
denier ; and each gold one was worth ten of
silver, and in this respect these were likewise
deniers. And the antient proportion of gold
to silver was as ten to one ; and this propor-
tion, as it seems, David observed in the treasure
of gold and silver which he prepared for the
building of the temple ; for the text says,Chron.
chap. xxii. ver. 14, ' that he provided for that
purpose 100,000 talents of gold, and 1,000,000
talents of silver.' So the first and proper sterl-
ing coin was a denier.

And for the substance of this denier or sterl-
ing penny in Weight and Purity: as to the
Weight, it was at first the 20th part of an
ounce, viz. an ounce was cut into 20 sterling
deniers and no more. See the compositio men-
surarum made in the time of Ed. 1. * in veteri
' libra de magna charta,' fol. 113. b. and in
RastaU's old abridgment, tit. weights and mea-
sures, 4. where it is said, that * viginti denarii
* faciunt unciam, et duodecim unci* faciunt
' libram;' and so it was until 9 Ed. 3. at which
time the ounce of silver was cut into 26 pence.
Annal. de Rob. de Avesbury MS. See several
ordinances touching the new sterling money,
made 9 Ed. 3. Rastnll, money 345. And such
proportion was continued until 2 Hen. 6. when
the ounce of silver made 32 pence ; and this
appears by the statute of 2 Hen. 6. c. 13,
and also by Lin wood, ' de testamentis, cap.
item quia, verb. cent, solid. ' Hie solid us,'
sail I) he, ( sumitur pro duodecim deoariis An*
' glicanis; horum 26 ponderabant unciam, cum
' tamen jam 32 denarii vix faciant unciam/
And this gloss was wrote in the beginning of
the reign of Hen. 6. as it is mentioned in the
preface to his hook. This standard was con-
tinued until the 5 Ed. 4. and then the ounce
of silver made 40 pence; 9 Ed. 4. 49. a. and
12 Ed. 4. c. 60. in Rot. Pari. Dublin. And
this continued until 36 Hen. 8. when the king
prepared for his journey to Ballogne; and then
an ounce of silver was cut into 60 pence, and
that standard remains to tins day. And so the
sterling penny, which was at first the 20th part
of an ounce, is now the 60th part of an ounce;
and by consequence, the antient sterling penny
contained as much silver as is contained in the
three-penny piece that is now current.

And as to the purity of this sterling [l H.H.

• So in the original; but qu. whether it
should not be pollards I

125]

STATE TRIALS, 2 James I. 1605.— in Ireland.

[120

P. C. 190.] money, lQs.5\d. of the purest silver
was contained in each pound, and each pound
•f sterliog money had 1*. 6d{. allay of copper,
and no more ; and of this allay of sterling
money, the ordinances or statutes of 25 Ed. 3.
c. 13. and £ Hen. 6. c. 13. make mention. But
this is well known to all moneyers, and is con-
tained in all the indentures made between the
king and the masters of the mint.

Tlien the Sterling Money being of such
weight and fineness, the doubt prima Jacie, was,
how this Mixed Money should be said to be
sterling. And for the clearing of this doubt, it
was said, that in each common piece of Money,
there is ' bonitas iutrinsica, et bouitas extrin-
' seca, : mtrinseca consistit in praetiositate mate-

• rue et pondere,' viz. fineness and weight ;
4 extrinseca bonitas consistit iu valuatione seu
' denominatione, et in formu seu charactered
BudeL de re nummaria, lib. i 1. cap. 7. And
this bonitas cstrinseca, which is called ' estima-
' tio sire valor imposititius, est formalis et es-
' sentialis monetae/ and this form giveth name
and being to money ; for without such form,
the most precious and pure metal that can be
is not money ; and therefore, Molinaeus, lib. de
mutat. Monetae, saith, ' non materia naturalis

• corporis monetae, sed valor imposititius est for-
' ma et substantia monetae, quae non est corpus

• physicum sed artificiale,' as Aristotle saith,
Ethic, lib. 5. And so Polit. lib. 1. he saith
to this effect, that money was first signed and
imprinted with a certain character, to the in-
tent, that the people might accept it on the cre-
dit of the prince or state who publishes it, with-
out examination or trial of the weight or pu-
nt?-. And to this purpose Molineus hath this
rale, Q. 99. ' de jure non re fen sive plus sive
' minus argenti insit, modo publica, proba, et
'legitima moneta sit/ Et Balausl. singulari,
saith, ' in pecunia potius attenditur usus et cur-
' sos quam materia/ And Seneca, lib. 5. de
beneficm, ' Ms alienum habere dicitur, et qui
'aureos debet, et qui corium forma publica
'percussum/ And it was said that the king
huh the same prerogative to give value to base
metal by his impression or character, as he
hath to give estimation to a mean person by
imparting the character of honour to him;
' ac fiet viro quern rex honorare desiderat/

And so it was concluded, that after the Es-
terlings, by command of1 the king of England,
ktd made this pure English money, which from
the name of the makers was called esterling or
sterling money, the standard of which hath
been .always the most fixed and unchanged in
dl the world, (which hath been a great honour
to oar nation, for in all other kingdoms and
states, the standards of their money are more
unsteady and variable,) all money coined by
the authority of the king of England, and hav-
ing his character and impression, not only in
England, but also in Scotland and Ireland,
bain been sterling money, and so called, re-
puted and taken by all people, whether the
matter of it were mixed or pure. And this
appears by the ordinance which is called ' sta-

' tutum de moneta magnum,' by which all mo-
ney is prohibited, ouly the money of England,
of Ireland and of Scotland, which was properly
the sterling money. And therefore Freherus,
lib. de re nummaria, where he enumerates the
different money of different nations; * sterlingi,'
saith he, * habentur in Anglia, Scotia et Hiber-
< «u » And Bodin, lib. 6. de republ. c. 3.

ma.

speaking of the money pf Scotland ; in Scot-
land, saith he, are two pounds, (livers) very dif-
ferent; one of esterlings, the other custom ar).
And certainly the usual Scottish pound (livre)
is like the French livre, and the pound (livre)
esterling current there is that of England. And
that base or Mixed Money may be current for
sterling, appears by the said case of Pollards,
Dyer 82. b. where it is said, ( quod currebat

* quaedam moneta in Anglia loco sterlingi quae
< vocabatur pollards, viz. duo pollardi pro uno

* sterlingo/

Fifthly, it was resolved, that although this
Mixed Money was made to be current with-
in this kingdom of Ireland only, yet it may
well be said, current and lawful money » of
England, for two causes. — 1. Because thi»
kingdom is only a member of the imperial
crown of England ; and this appears 3 Hen.
7. 10. a. where a question was 'propounded
to the justices by Hobart, Attorney gene-
ral, ' si quis sciens monetam ad similitudinem
' monetae regis Angliae contrafactam, talem
' monetam in Angliain extra Hiberniam defe-
' rat, si sit proditio necne : et dixerunt quod
' Ilibernia est quasi membrum Angliae, et ibi-
' dem le^ihus Anglia? utuntur, et authoritate
' regia faciunt monetam/ And to this purpose
it is recited in the statute of faculties, enacted
in this kingdom, 28 Hen. 8. c. 19. * that this
the king's land of Ireland is a member appen-
dant, and rightfully belongeth to the imperial
crown of the realm of England, and united unto
the same/ And in the act of 33 Hen. 8. c. 1.
by which the stile and title of king of Ireland
was given to Hen. 8. his heirs and successors,
it is moreover enacted, that the king shall en-
joy that stile and title, and all other royal pre-
eminences, prerogatives and dignities, ( as united
and annexed to the imperial crown of the
realm of England/ — 2. It is called lawful mo-
ney of England, in respect to the place of coin-
age which was in England, viz. in the Tower of
London. For although in antient times the
king had several mints in this kingdom, as he
had in England, yet since the commencement
of the reign of queen Elizabeth, all the mints
have been reduced to one place, viz. The Tower
of London; and this was done upon good rea-
son of state, to prevent the falsification of mo-
ney. And therefore, before the Norman con-
ouesr, all money was coined in monasteries ;
tor it was presumed, that in such places no fal-
sity or corruption would be found. And this
agrees with the prudence of the Roman state,
which had but one mint for all Italy, and that
was in the temple of Juno at Rome, who for
this cause was called ' Juno moneta/ And for
this purpose, the emperor Charlemain made *

1 27] STATE TRIALS, 2 James I. 1605.— The Cote of Mixed Money

[128

low, in these words, viz. * de falsis monetis,

* quia in diversis locis contra justitiuni fiunr, vo-

* lumus, ut innullo alio loco moneta, nisi in pa-

* latio nostro, fiat.' Choppinus de Domanio
Francis, 217. a. Yet in 28 Ed. 1. this prudent
Icing, for the facility of exchange, caused several
jnints to be established in several towns in
England; one in the Tower of London with
thirty ra maces, another at Canterbury with eight
furnaces, another at Kingston upon Hull with
four furnaces, another at Newcastle upon Tyne
with two furnaces, another at Bristol with four
furnaces, and another at Exeter with four fur-
naces. Tractat. de monetii Anglia?, made in
the time of Ed. 1. which 1 found in the library
of sir Robert Cotton, which was the hook of
lord Burleigh, late lord high treasurer of Eng-
land. J5ec also the clo-e rolls of 29 Ed. 1. in
the Tower of London. And this np pears also
by the inscription of divers antient coins, on
which are expressed the names of the cities
where thev were coined, according to a verse
made in the time of Ed. 1. and taken by Stow
out of Robert le Bnm, an antient manuscript :
' Edward did smite round penny, half-penny,

farthing.'

And then followed,
' On the king's side, Mas his head and his name
written,

* On the cross side, the city where it was smit-

ten.'
And this same king having established a
mint at J)ublin with lour furnaces, and having
constituted Alexander Norman of Lusk master
of the mint there, as appear* in several records
in the archives of the Castle of Dublin; after-
wards, viz. 32 Ed. 1, when he bail altered the
furm of the coin, he caused divers stamps con-
sisting of two parts, of which the one contained
the pde, and the other the cross, to be trans-
mitted to the treasurer of this kingdom, as is
recorded in the red book of the Exchequer here
in this manner. ' Majiister Guliclmus de Wi-
' mundham, custos rambiorum domini regis in
1 Anglia, de precepto venerabilis patris Bnthon.
1 et Wellenss episcopi, thcs:iuranj cjusdem do-

* mini regis, mi>it domino (julielmo dc Esen-

* den, thesaurario in liil»erni:i, vieiuti quatuor

* peciascuneorum, pro moneta ibidem facicuda,

* viz. tre»s pilas cum sex crucellis pro dennrijs,
t, (pes pihis cum sex cnicellin pro obolis, et duas
' pilas cum quatuor crucelli* pro ferlingis, per
1 Johaiinem le Minor, Thomas Oowle, et Jo-

* hannem de Shonlitch, clcricos, de socictate
» operarioruin et monetariorum London, per
4 c-tsdein ad monctam pnvdic -tain opcraiidam et

* ■onetindara.' And there it is likewise nicn-
sooed. before what witnesses the said stamps
^cr. fet:tvered; for ' eune us moneta* tanqiiam

-cUara ret"i ontodiri debet,' as it is snul in
-■• -^lrse " de moneta Angli;e* before men-
~\ aod the reason is, because to cou/i-
ae of the other is high treason.
m tan* there was but one mint in
, «C* Dublin. But long aftcr-
»Hfc a. * mint was established at
at Trim, and another at

Galway; Rot. Pari. 3 Ed. 4. in Castro Dublin.
And 12 Ed. 4. Rot. Pari. ibid, it is ordained, that
the masters of the mint in Ireland should make,
in the castles of Dubl in and Trim, and in the town
of Drogheda, five sorts of coin, the groat, the
half-groat, the penny, half-penny and farthing;
by which it is ma in test that in former times,
there were five several mints in Ireland, in the
several towns aforesaid. But all these were
discontinued in the time of Ed. 6, so that since
the reign of that king, all die money made in
Ireland hath been coined in England ; and
therefore this mixed money, coined in the
Tower of London, may be properly called
current and lawful money of England.

Sixthly and lastly, it was resolved, that al-
though at the time of the contract and obliga-
tion made in the present case, pure money of
gold and silver wns current within this king-
dom, where the place of payment was assign-
ed ; yet the mixed money, being established in
this Kingdom before the day of paymert, may
well be tendered in discharge of the said obli-
gation, and the obligee is bound to accept it ;
and if he refuses it, and waits until the money
be changed again, the obligor is not bound to
pay other money of better substance, but it is
sufficient if he be always ready to pay the
mixed money according to the rate for which
thev were current at the time of the tender.
And this point wns resolved on comideration
of two circumstances, viz. the time and the
place of the payment ; for the time is future,
viz. that if the said Brett shall pay or cause to
be paid 100/. sterling, current money, &c. and
therefore such money shall be paid as shall he
current at such future time; so that the time
of payment, and nut the time of the con t met,
shall be regarded.

Also, the future time is intended by the words
current money ; for a thing which is passed is
not in nirsu; and therefore all the doctors, who
write ' de re nummaria,* agree in this rule,
' verba currentis monetas tern pus solutionis de-
' signant.' And to this purpose arc several
cases ruled in our books, 6 and 7 Ed. G. Dyer
81. b. After the fall and emhaseinciit" of
monev, 6 Ed. 6. debt was brought against the
executors of lessee for years, for rent in nrrear
for two years, ending ilich. 2 Ed. 6. at winch
time the shilling (which at the time of the
action brought, was cried down to (if/.) waj
current for 12rf. the defendants pleaded a
tender of the rent on the days when it became
due, ' in pociis monetae Anglise vocat. ikil-
' tings, qualibetpecia vocat, shifting, ndtnnc so-
( lubili pro 12d. and th:it neither the plaintiff1
nor any other tor him was ready to receive it,
cVc. and concluded that thev^ire still ready to
pay the arrears ' in dictis ptciis vocat. shillings,
* secundum ratam,' \'C. On this plea, al-
though the plaintiff demurred, ye*t he was con-
tent to take the money at the rate aforesaid,
without cosrs or damages. To the same pur-
pose is the case of Pollards adjudged, 2t> Ed.
1. and reported by Dyer 82. b. where in debt
on an obligation for payment of 24/. at tiro

129]

STATE TRIALS, 2 James I. 1605.— in Ireland.

[130

several day*, the defendant pleads, that, at the | these words ' currentis moneta?' shall relate to
day* limited for pa vmeut of the debt in demand the time of the puvment ; vet in wills, they

payi
' currehat qnaedaiu inoneta. qu« vocahaiur Pol-
Urdsy luco sterlingi,' &c. and that the,def< ndaut
at the first day of payment tendered the moiety
of the debt in tlie money called Pollards, which
the plaintiff refused, and tiitit he is still ready,
&c. and offered it in court, which is not denied
by the plaintiff; ideo cancessum est, that he re-
covered one moiety in Pollards, and the other
in pure sterling money. See 9 Ed. 4. 49. a
ftmarkable case on the change of money,
■here it is said, that if a man in nn action of
debt demands 40/. it shall he intended money
a bid) is current at the time of the writ pur-
chased. And tJitTe a case in the time of Ed. 1.
fcj put, which is directly to this purpose. In
debt brought upon a deed for 30 quarters of bar-
ley, price 20/. it was found for the plaintiff, and
the jury was charged to enquire of the price at
the time of die payment, and it was said that
at ibe time of the payment a quarter was at
12*. but at the time of the making of the
deed, it was only at 3*. and the plaintiff re-
covered 18/. fur the corn according to the
price of it at the time of the payment. To
this purpose also, Limvood hath a notable
floss on the constitution of Simon Mepham,
Lb. 3. de Tcstamentis cap. item quia. For
a here the constitution is such, 4 pro publica-
4 tione testamenti pauperis, cujus inventarium
•' bonorum non excedit centum solidos sterlin-
' coram, nihil penitus exigatur/ he muket.h
thisglo*3, * hie solidus smnitur pro duodecim
'deoarijs Anglicanis, &c. Sed qiucro,' saith
he, * nuinauid circa hos centum solidos debeut
'considerari valor in moneta jam currents,
' vel valor sterlingoram qui currebant tempore
'sratuti/ and there lie resylvetB, ' quod ubi
1 ditpositio surgit ex statute, ut hir, licet mo-
1 neta sit diminuta in valore, tamen debet con-
'»derari respectu monetx novw currentis, et
'non respectu antique. Nam mutata nioneta,
'mutari videtur statutum, ut scilicet intelliga-
1 ttrde nova, et non de veteri.' See Reg<st.
JO. a. and 54. b. where the king issues his writ,
I»W certified of the value of a church. The
*ttri* of the writ arc secundum taxationcm dc-
nme jam rurrentii. And 31 Ed. 3. Fitz. II.
Annuity 28. an annuity was granted to T. 8.
snul lie was promoted by the grantor to a suf-
ficient benefice ; I. $.4 .rings a writ of annuity
sgaia* riie grantor, who pleads that lie had
tendered to tbc plaintiff u sufficient benefice ;
tad there issue was taken on the value of die
krariire at the time of the tender.
But it was snid that, although in contracts

shall relate to the time of making the will ; for
the bequest is in the present tense, * 1 give

* and bequeath,' cvC and therefore legacies
shall be paid in such money us is current at
the time of the making the testament, or ac-
cording to the rate t hereof. It w as also said, that
if a man hath 1000/. of pure silver in marriage
with his wife, and afterwards thev are divorced
causa precontract us, by which the wife is to
receive her portion : or if a man recovers by
an erroneous judgment 100/. in debt, and hath
execution in pure silver money, and afterwards
the judgment is reversed, so that lie is to be
restored to all that he hath lost, although base
money be established in the mean time, resti-
tution shall he in such money as was current
at the time of the marriage, and at the time of
the recovery. But these latter catcs were not
resolved.

And as to the circumstance of place, it was
resolved, that although the contract was made
in London, yet, tlie place of payment being
appointed in Dublin, of necessity the obligor
must make his tender in the mixed money at
the time of the payment ; for all other money
was cried down and made bullion by the pro-
clamation aforesaid, and this money only esta-
blished; so that if the obligee had refused this
mixed mouey, he had committed a contempt,
for which he might be punished. Also the
judges are not hound to take notice of any mo-
ney, that is not current by proclamation. And
therefore Prisot saith, 34 Hen. 6. 13. a. * we
' are not apprised of 6/. Flemish, as we are of
' 100 nobles ;* and therefore in all contracts of
inercliauts, * consuetudo ct statuta loci, in

* quein est destinnta solutio, re^picienda feunt/
Budelius de re numranrisi, lib. '2. <;. 21. And
it was said, that if at tins day the law should
be taktn, as it was taken in the time of Ed. 1.
that upon judgment in debt given in England,
on a testatum that the defendant hath nothing
in England, but that he hath goods and lund*
in Iretnnd ; a writ of execution shall be award*
ed to the chief justice or deputy of Ireland, to
levy the debt there, (which writ is found in
Registro Brer. Jud. 43. b.) tlie sum in such
case shall be levied according to the rate of
Irish money, and not of English money, and in
such coin as shall be current in this kingdom,
ut the time of the execution.

And according to this Resolution, several
otlier Cases on the same point were afterwards
ruled and adjudged in the several Courts of
Record in Dublin.

VOL. it.

IS*]

STATE TRIALS, 3 James I. 1005.— ArticuU CHrt.

0»se

79. Ahticuli Clkri : Articles (so intitled by Lord Coke) of
Complaint against the Judges of the Realm ; exhibited by
Richard Bancroft, Archbishop of Canterbury, in the Name
of the whole Clergy: Michaelmas Term/ 3 Jac. a. d. 1605.
Together with the Answers thereunto by all the Judges and
Rarons. [Lord Coke's 2d Inst. 601.]

.LORD Coke, in treating of the Stat. 9 Ed. 2.
called A rticuli Clf.hi, says:

" Long before the making of this statute, that
is, anno 42 U.S. a. d. 1258, Boniface younger
M>nne of Thomas earle of Savoy, archbishop of
Canterbury, uncle of Klinnor queen of Eng-
land, who was daughter of Reymoud earle of
Province hv Beatrix daughter. of Thomas earle
of Savoy, and sister to the said Boniface, made
divers and ninny canons and constitutions pro-
vincial! directly against the lawes of the realme,
which canons begun thus : * Universis Christ i
1 fidelibus ad quos pnrsens pagina pervenerit,
1 Bonifacius miserntione diviua Cantuariensis
' archiepiscopus, totius Anglin?. primas, et sui
' sutfruganci in vcrbo sahitari salutem.' And
ending thus : ' Actum apud Westm', sexto

* iduum Junii a.d. 1258. In quorum omnium

* robur et testimonium, &c.' which being ex-
ceeding long, we could not here insert. But
the effect of them is, so to usurp and incroach
upon many matters, which apparently belonged
to the common law, as, amongst many others,
the try a 11 of limits and bounds of parishes, and
right of patronage, against tryall of right of
tithes (by indicavU) against. wriis to the bishop
u|)On a recovery in a quart impedit, ike. In the
king's courts. That none of their possessions
or liberties, which any of the clenry had in the
right of their church, should be tryed before
any secular judge ; (so as they would not have
conusance of things spiritual!, but of temporall
also) and concerning distresses and attach-
ments within their fees, and in effect, that no
quo warranto should be brought against them,
when they had been long in possession, with an
invective against the perverse interpretation by
the judges of the realme (so they termed it) of
charters, &c. granted to them, and in substance
against the ancient and just writs of prohibi-
tion in cases, where by the lawes of the realme
they are maintainable : and commandement
given to admonish tlie king and interdict his
lands and revenues, and thnudred out excom-
munications against the judges and others if
they violated, or obeyed not the said canons
and constitutions. And this was the principull
ground of the controversies between tlie judges
of the realme and the bishops : for this caused
ecclcsnstieall judges to usurp and uicroarh
upon the common law. But notwithstanding
the greatness*- of the archbishop Boniface, and
thatdiverd of the judges of tlie realm were of the
clergy, and all the great officers of the realm, as
chancellor, treasurer, privie seale, &c were pre-
lutes ; jet the judges proceeded according to

the lawes of the realm, and still: kept, though-
with great difficulty, the ecclesiastical courts-
within their just and proper limits. The court*
by pretext of these canons being at variance,
at length at a parliament holden in tlie 51 yearr
of Henry the third, Boniface, and the rest of
the clenry, complained (which was ultimum
rtfugium, and yet the right way) and exhibited
many Articles ns grievances, called Articvti
Cleri. The Articles exhibited by the clergie
either by accident or industry are not to be
found; some of the Answers are extant, • viz.

* Ad 16 Articulum de usurte, respondctur, quod

* licet episcopus, ike. — Ad 17 articulem de defa-

* matione, &c. respondetur, si aliquis defa-
' matus, &c si autein certae persons nominate
' fuerint, per quas rci Veritas melius scire po-

* tent, noininantur, ad proband' matrimonium

* vel testamentutn : et similiter in accusatio-
1 nibus tales persona iinpcdiendae non sunt,

* quia testimonium perliibent veritati, scd prop-
' ter hoc non est congregatio laicorum faciend*,
' quia per congregationem hujusmodi servitia
' domiuus possit deperire. — Ad 18 Artie' doini-
' nas posuit remedium. — Ad 19 Artie' respon-

* detur, quod archiepiscopus de episcopatu
1 vacante 11011 se intromittat quantum ad tem-

* poralia, sed tantum se de spirit ualibus intro-

* mittat, &c— Ad 20 Artie' respondetur, quod
4 de clericis occisis, et de hits qui forsan occidi
1 coutigerit, in futurum tint justitia, secundum
'legem et consuetudinem terra, ike. — Ad 21
' Artie* respondetur, quod excommunicato per

* ordinariimi, aut aliuin judicem competentem,
' et denunciatus Ui liter, debebit ab ahis evitari*
( nisi forsan excommunicatus conqueratur se
' esse injuste excommunicntum pro aliqua re
1 temporaii, dc qua non debcat coram ordinario
' respondere, ad cujus probationera debet ad-
1 mitti, sed in caiieris qua; proponit, ut actor,
i est interim evitandus .*— Ad 22 Artie' mandu-
( bitur justiciariis, quod non tiant aliqua? prisas
1 per totam terrain de bonis aliquorum, nisi dc-
' bitae prisa? et consneta*. — Ad 23 Artie' res-

* pondetur, quod cum aliqui teneant aliquod de

* rege in capite unde custodia debeatur, cus-

* todia^ omnium terrarum de quibuscunquc

* teneutes illi tenementa ilia teneant cum acci-
' derint (si inde custodia habere debeatur) hac-
' tenus ex con«uetudine approbata spectarunt

* ad regem, sed episcopi si ex pt dire vidcant,
( inhiUant tenentibus suis, ne aliqua tenementa

* si hi pvrquirant de feodis regis.'

These Answers are yet extant of record, and
are worthy to be read at large as they jet
remaine; whereuoto we refene the reader.

«3]

STATE TRIALS, 3 James I. UiQ5.— Articuli Cleri. [134

of his fidelity and great wisdome, and * Wal-
4 terus 'urchiepiscowus Cantuarieusis reci era-

Tbis is to be observed, that none of Boniface's
Canons against the lawes of the realm, and the
crowne and dignity of the king, and the birth-
right of the subject, are here confirmed.

What the residue of the Articles and the
Answers were, may be collected by that act
of parliament entitled ' Prohibitio tor mat a dc
statu to Articuli Cleri,' which was made in the

time of Edward the first, about the hegiuning high time that we should descend to the pcru-
-ru: : „.i.:^i. i— : ~i. .1 .... x^ _j - sail of the preamble, and the Aiticles and An-
swers. But before we come to it. it shall con-
ihicemuch to the right undemanding of dixers
parts of this act of parliament, to report unto
you what Articles Richard Bancroft archbishop
of Canterbury exhibited in the name of the
whole .clergy in Michaelmas terme anno 3 Ja-
cob, regis to the lords of the privie counceli
against the judges of the realm, mtuled,

of his reign, which begiimeth thus : Eduardus,
irf. pnrkttis, SfC. wherein divers points are to
W observed against the canons of Boniface :
4 1. Quod cognitiones placitorum super feoda-
1 lihus et libertatibus feodalium, districtionibus,
4 officus ministrorum, executionibus contra pa-

* cenvaostram factit, felonuin negotiationibus,
4 coosoetudinibus aecularibus, attachiamentis,
9\i Jaica malerac tori bus rectatis, robberiis,
' arrestutionibus, maneriis, advocationibus ec-
4 desiarum, suttirientibus as sisis juratis, re-
1 cogoitionibiis laicum feodum * contingenti-

* has, et rebus aliis, et causis pecuniarum,
4 et de aliis catallis et debitis quae -non sunt
' de testament' vel raatriinon' ad coronam
4 et dignitatem regiuin pertineant, et de regno

* de coiisuetud' ejusdem regni approbata, et

* hacteuus observata. 2. Et proceres, et inag-

* nates, aut alii de eodem regno teinporibus
' nostrorura predeceasorum regum Angliae, seu
' nostra authoritate alien jus non consuevemut
'-coutra consuetuilinem ilium super hujustnodi
4 rebus in causa train vel compelli ad compa-

* rcnduin coram quocunque judice ecclesiastico. ■
' 3. Et quod vicecoines non permittant, quod

4 aliqui iaici in baliva sua conveniuntad aiiquas

* recognitions per sacramenta sua fnciend',
1 nisi in causis inatrhuonialibus et testaineu-
' tariis.* Of the substance of this prohibition,
firrrtonspeaketh in these words, ' et queux ount
1 sutiert pleader en court christian auters pleas,
' que de testament on inatriinonie, et de pure
4 spiritueltie sans deniers prender de lay home.
*0u *uriert lay home iorrer de vant lord i nary.'

After this the Clergy, at a Parliament holden
rathe raigne of the same king E. 1. preferred
Aiticles intitled * Articuli contra prohihitiou-
ca regis,' fearing lest by reason of some gene-
rjfl words therein tliey might be prohibited in
causes, which of right belonged to the ecclesi-
astical jurisdiction, in these words, ' sub hue
1 forma impctrant laici pruhibitionem in genere
1 toper decimis, oblationibus, obveniionibus,
4 inurtuariis, redemptionibus penitentiarum,
' viokntn manuuin iujectiane in clericum vel
4 coiiiiuiftsariuiu, et in causa defamations, in qui-
' bus cusibus agitur ad pcenam cauonicam mi-
4 pnnendam.' And a just and legull Answer
was made thereunto, as thereby appeareth.
fiat it i» to be observed, that they claimed no-
thing which was against the true lucaniug of
the*aid art. called * Prohibitio fonnata de sta-
4 Into Artie' Cleri,' nor any of Boniface's* canons
Co rxe confirmed ; and so these matters rested,
untill the parliament holden at Lincoln in the
ninth yea/e of Edw. <2, where Walter Key nolds
bithop o( Canterbury (whom the king favour-
ed, Much oqef singularly for the opinion he had

iepisco|»us I antuarieusis regi gn
* tiosissimus fuit, hac regis squiisima re sponsa
' ad pralatorum petita obtinuit/ in the name
of hiinsclfe and of the clergy, preferred these
16 Articles, and by autlwrity of parliament
had the Answers here following seriatim -to
every one of them. — And now it may seem

Certain Articles of Abuses, which are desir-
ed to be reformed, in granting of Prohibi-
tions, and the Answers thereunto :

Upon mature deliberation and consideration,
in Easter terinc following, by all the Judges of
England, and die barons of the exchequer,
with one unanimous consent under their hand*
(resolutions of highest authorities in law) -which
were delivered -to the lords of .the counceli.
And we for distinction sake (because we shall
have occasion often tq cite them; cadi them
Articuli Cleri 3 Jacubi.

1. His majesty hath power to reforme abuses
in Prohibitions.

Objection. The clergy well hoj>ed, that they
had taken a good course in seeking some re-
dresse at his majesties hands concerning sun-
dry abuse* offered to hKecclcsiastieall jurisdic-
tion, by the over frequent and undue granting
of prohibitions ; for both they and we supposed
(all jurisdiction, both ecclcsiasticall and tem-
poruil being annexed to the imperial] crowne
of tlus real me) that his higlmesse had been
held to have had sufficient authority in him-
selfe, with the assistance of his counceli, to
judge what U amisse in either of his said juris-
dictions, and to have reformed the same ac-
cordingly ; otherwise a wrong course is taken
by us, if nothing may hee reformed that is now
complained o£ but what the temporal I judges
shall of them*elvts willingly yeeld unto. This
is therefore the first point, which upon occa-
sion lately olfertd before your lonUhips by
some ot the judges, we desire may be cleared,
because we are strongly perswnded us touching
the validity of his majesties said authority, and
doe hope that we shall he able to ju*ti1ic the
same, notwithstanding any tiling that the
judges, or any other can alledge to the contrary.

AnsvLr of the Judges. No man makcih
any question, but that both the jurisdictions
are lawfully and justly in his majesty, and
that if any abuses be, they ought to bee re-
formed : but what the law doth warrant in
cases of prohibitions to keep e\ery jurisdiction
in his true limits, is not to be said an abuse,
nor can be altered but by parliament.

133]

STATE TRIALS, 3 James I. \<>05.—ArtkuU deri.

[13(5

2. The formes of Prohibitions prejudiciall to
his majesties authority iu causes ecclesias-
tical!.

Objection, Concerning the forme of prohi-
bitions, forasmuch as boih the ecclesiasticall
and temporall jurisdictions be now united in
his majestie, which were heretofore dc facto,
though not dc jure derived from severall head>,
we desire to be satisfied by the judges, whether,
as the case now staudetli, the former manner
of prohibitions heretofore used importing an
ecclesiasticall court to be uliud forum <i foro
regio, and the ecclesiastical I law not to be
legem terra, and the proceedings in those
courts to bee contra coronam ct dignitatem rc-
giam, may now without offence and derogation
to the kings ecclesiastical prerogative be con-
tinued, as though either the said jurisdictions
remained now so distinguished and severed as
they were before, or that, the lawes ecclesinsti-
call, which wee put iu execution, were not the
kings and the rcalm<»s ccclc*ia*ticall lawes, as
well us the temporall lawes.

Ansuer. It is true, that both the jurisdic-
tions were ever dc jure in the crown* \ though
the one sometimes usurped by the see of
Koine ; but neither in the one time, nor in the
other hath ever the forme of prohibitions been
altered, uor can bee but by parliament. And
it is contra coronam ct dignitatem rcgiam for
any to usurp to deale in Unit, which they have
not law full warrant from the crowne to deale
in, or to take from the temporall jurisdiction
that which belonged to it. The prohibition*
doe not. import, that the ecclesiu si icall courts
are aliud then the kings, or not the kings
courts, but doe import, that the cause is drawne
into aliud examen then it ought to be : and
therefore it is alwaies said iu the propositions
(lie the court temporall or ccclesiasticall, to
which it is awarded) if they deale iu any case
which they have not power to hold plea of,
that the cause is drawn ad aliud tinmen then
it ought to he ; and therefore contra coronam
et dignitatem rcgiam.

3. A fit time to be assigned for the defend-
dnnt, if he will seek a Prohibition.

Ohjcction. As touching the time when Pro-
hibitions are granted, it secmeth strange to u«,
that, they are not onely granted at the suit of
the defendant in the ccclesiasticall court after
his answer (whereby hee afunneth the jurisdic-
tion of the said court, and submitteth hnu-elic
unto the same ;) hut also after all allegations
and proofes made on both sides, when the
cause is tally instructed and furnished for son-
tenee : vea. after sentence. vea alter two or
three sentences given, and after, execution of
the said sciitenrv <>r sentences, ami win n the
party for his long continued disobedience is
laid iu priviTi upon the writ of -excommunicato
capiendo t which courses, forasmuch as they are
against the rules of the common law iu like
cases, ns we take it, and doc tend so greatly to
the delay ofjubticc, vexation, and charge of the

subject, and the disgrace and discredit of his
majesties jurisdiction ecclesiasticall, the judgei,
as we suppose,- notwitlistanding their great
learning iu the lawes, will be hardly able in
defence of them to satisfie your lordships.

Antzcer. Prohibitions bv law arc to be
granted at any time to restraiue a court to in-
termeddle with, or execute any thing, which by
law they ought not to hold pfea of, and they
are much mistaken that maintaine the con-
trary. And it is the folly of such as will pro*
ceed in the ecclesiasticall court for that,
whereof that court hath not jurisdiction ; or in
that, whereof the kings temporall courts should
have the jurisdiction. And so themselves, by
their extraordinary dealing, are the cause of
such extraordinary charges, and not the law?
for their proceedings iu such case are corah
non judicc. And the kings courts that may
award prohibitions, being informed either by
the parties themselves, or by any stranger, that
any court temporall or ecclesiasticall doth hold
plea of that, whereof they have not jurisdiction,
may lawfully prohibit the same, as well after
judgement and execution, as before.

•J. Prohibitions unduly awarded heretofore
in all causes almost of ccclesiasticall cog-
nizance.

Oljcctim. Whereas it will be confessed,
that cause* concerning testaments, matrimony,
benefices, churches, and divine service, with
many orVences against the 1, 2, 3, 4, 5, 7, 9,
and 10 coiumandemeuts, arc by the lawes of
this reuhn of ccclesiasticall cognizance, yet
there aic few of them, wherein sundry prohi-
bitions have not been granted, and that more
ordinarily of latter times, then ever heretofore,
not because we that arc ecclesiasticall judges
doe give greater cause of such granting of them,
then before have been g'nen, but for that the
humour of the time is growne to be too eager
against ail ccclesiasticall jurisdiction. For
whereas, iov examples sake, during the raigne
of the late cjueen of worthy memory, there
have lieeii 48*1 prohibitions, and since his ma-
jesties time 8-2 sent into the com t of the arches;
we humbly desire your lordships, that the
judges may be urged to hiing forth one prohi-
bition often, nay the twentieth prohibition of
ail the said 48S, and but 2 of the said 82,
which upon due considerations with the libels
in the ccclesiasticall court, they shall he able
to justitic to have been rightly awarded : we
suppose they cannot ; our predecessors, and
we our sehes have ever been so cartfull not to
exceed the cotnpnsse and limit* of the ccclesi-
asticall jurisdiction : which if thev shall refuse
to attempt, or shall not he able to perfonne,
then we refene our stives to your lordships
wisdomes, whether we have not just, cause to
complaine, and crave restraint of this over
lavish grain ina of prohibitions iu every cause
without respect. That which we have said of
the prohibitions in the court of the arches, we
verily pcrswade our selves may be truly affirm-
ed of all the ecclesiasticall courts in England,

137]

STATE TRIALS, 3 James I. \GQ3.—Articuli Cleri.

[13*

which doth so much the more aggravate this
abuse.

Annetr. It had been fit they should have set
dowue some particular cases, in which they Hod
the ecciesiasticall courts injured by the tempo-
nil (its their lordships did order) unto which
we would have given a particular answer; but
spon these generalities nothing but clamour can
be concluded. And where tbey speake of mul-
titude^ of Prohibitions ; tor all grunted to, or in
respect of any ecciesiasticall court, we have
Heretofore caused diligent search to be made in
in kings bench and common pleas, from the
beginning of his majesties raigne, unto the end
0! Hilary term, in the third yeare of his raigne;
in which time we find, that there were granted
unto all the ecciesiasticall courts in England
out of the kings bench but (251 ; whereof 14$,
were de modo decimandi, upon unity of posses-
lion, for trees of SO yenres growth and upwards,
tad for barren and heath ground ; and all out
of the common pleas, but 62, whereof 3 1 were
wrh as before, and the rest grounded upon the
bounds of parishes, or such other causes as they
taoht to be granted for; but for that which was
done in the late queenes time, it would be too
lor* a search for us to make, to deliver any cer-
tainty thereof. And for his majesties time,
U4T requiring to have but two to be lawfully
wvraiited upon the libell in the ecclesiastical!
oart, we have six to shew to he lawfully
warranted upon tlte libell there, and so are nil
tue rest of like kind, by which it will appeare,
tut this suggestion is not onely untrue, hut
wo, that the extraordinary charges growing
Liito poore men, are of necessity by meanes of
thi undue practices of ecciesiasticall courts.

5. The multiplying of Prohibitions in one and
the same cause, the libell being not altered .

Objection. Although it hath been anciently
irdaioed by a statute, that when a consultation
d once duly granted upon a prohibition made
u the judge of holy chnrch, the same judge
*av proceed in the cause, by vertue of that
CMMiitalion, notwithstanding any other prnhi-
t Lja to him delivered, provided that the mat-
te jd i ho libell of the same cause he not en-
piwd, enlarged, or otherwise changed; yet
>'t»it!i*tandiug prohibitions and consultations
m one and the same cause, the libell being no
• lies altered according to tho said statute, are
otcly so multiplyed, as that in some one cans*',
%t aforesaid, two, in some three, in some other
M prohibitions, and so many consultations have
Utn awarded, yea divers urc so grnntid out of
ftne curt: aj> for example, when after long suit
i consultation is obtained, it is thought a sufii-
rent cau«e to send out another prohibition in
revocation of the said consultation, upon sii£-
P*ti-*n therein contained, that the said consnl-
ttiiim minu* commode emtmavit. By which
ynxiy device the judges of thoee courts which
Paot prohibitions, may', notwithstanding the
*A stafuie, upon one "libell not altered, grant
to rnany prohibitions as they list, commanding
■« ecciesiasticall judges in his majesties name,

not to proceed in any cause that is so divers
times by them prohibited, whereby the poore
pluiutifes doe not know when their consulta-
tions (procured with great charge} will hold, and
so finding such and so many difficulties, are
driven to goe home in great griefe, and to leave
the causes in Westminster-hull, the ecciesiasti-
call judges not daring to hold any plea of them.
Now may it please your lordships, the premisses
being true, we humbly desire to heare what the
judges are able to produce for the justifying of
these their proceedings.

Answer. It were fit they should set downe
particular causes, whereupon this grievance is
grounded, and then we doubt not but to answer
it sufficiently, without using any pretty device,
such as is set downc in this article.

6. The multiplying of Prohibitions in divers
causes, but of the same nature, after con-
sultations formerly awarded.

Objection. We suppose, that as well his majes-
ty's ecciesiasticall jurisdiction, as also very many
of his poore, but dtitifnll subject*, are greatly
prejudiced by the granting of divi-rsscverall pro-
hibit ions, and consultation* in causes of one and
the same nature and condition, aud upon the
selfe samV suggestions: for example, in case of
beating a -clerke, the prohibition being granted
upon this suggestion, that all pleas dc vi ct ar-
mis belong to the crowne, tkc. notwithstanding
a consultation doth thereupon ensue, yet the
very next day after, if the like suggestion be
nude upon the beating of another cierkc, even
in the same court another prohibition is award-
ed. As also, whei e 570 prohibitions have been
granted since the late queenes time into the
court of arches (as before is mentioned) and
but 113 consultations afterwards upon so many
of thein obtained : yet it is evident by the said
consultations, that (in effect) all the rest of the
said prohibitions ouirht not to have been award-
ed, as being grounded upon the same sugges-
tions, whereupon consultations have been for-
merly granted: and so it followeth, that the
causes why consultations were awarded upon
the rest of the baid prohibitions, were for that
either the plaint ifes in the court ecciesiasticall
were driven for sax iug of further charge, to com-
pound, to their lo*sc, with their adversaries, or
were not able to sue for them : or being able, yet
through strength of opposition against them,
were con-trained to desist; which i» an argu-
ment to us, that the temporall judges doe wit-
tingly und wiiiincly grant prohibitions, where-
upon they know, before hand, that consult at ions
are due: and if wo mistake any thing in the
premises, we des-ire your lordships, that the
judircs, for the justification of their courses, may
better enformc u*.

Answer. It shall be jjood, the ecclesiastical
judges doe better enfornu* themselves, and that
thev put some one or two particular rases to prove
their Mi«:gcstions, and thereupon they will find
their owne crrour; for the case- may be so, that
two >everall ministers siting in the ecciesiasticall
court for beatini: oi them in one and the selfe

139]

STATE TRIALS, 3 James L 1 G03.— ArticuH Cleri.

1144)

same forme, that the one may and ought to
have a consultation, and the other not. And
so it is in cases of prohibitions, de modo deci-
tnandi ; and hereof groweth the oversight in
making this objection. And we assure our
selves, that they shall not find 570 prohibitions
granted into the arches since her late majesties
death; for we find (if our clerkes affirme truly
upon their search) that out of the kings bench
have been granted to all the ecclesiasticall courts
in England but 251 prohibitions (as before is
mentioned) from the beginning of his majesties
raigne, unto the end of Hilary termelast; and
out of the common pleas not 63. And therefore
it cannot be true, that so many have passed to
the arches in that time, .as is set downe in the
article ; and this article in that point doth ex-
reed that which is set downe in the fourth arti-
cle by almost 500, and therefore whosoever set
this downe, was much forget full of that which
was before set downe in the fourth article, and
might well have forborne to lay so great a scan-
dull upon the judges, as to affirme it to be a
witting and willing crrour in them, as is set
downe in this article.

7. Xew formes of Consultations, not ex-
pressing the cause oi the granting of them.

Objection. Whereas upon the granting of
Consultations, the judges in times pa>t did
therein expresse and acknowledge the causes so
remitted to be of ecclesiasticall cognizance,
which were presidents and judgements for the
better assurance of ecclesiasticall judges, that
they might afterward hold plea in such cases,
and the like ; and were also some barre as well
to the tcinporall judges themselves, as also to
many troublesome and contentious persons from
either granting or seeking prohibitions in such
cases, when so it did appeare unto them upon
record, that consultations had been formerly
granted in them ; they the said temporall judges
have now altered that course, and doc ouely
tell us, that they grant their consultations certis
de can sis ipxos apud Westm* wovcnlihus, not ex-
pressing the same particularly, according to
their ancient presidents. Hy monies whereof
the temporall jud^c^ leave themselves at liberty
without prejudice, though they deny a consul-
tation ; at another time upon the same matter
contentious persons are animated, finding no
cause expressed, why they may not at another
time sccke for a prohibition in the same cause;
and the ecclesiasticall judges are left at large to
thinkc what they list, being no way institictcd
of the nature of the cause which procured the
consultation : the reason of which alteration in
such consultations, w e humbly intreat your lord-
ships, that the judges, for our better instruction,
may be required to exprc&sc.

Answer. If we find the declaration upon the
Mirmi«c, upon which the prohibition is granted,
not to warrant the surmise, then we forthwith
grant u consultation in that forme which is men-
tioned, and that matter being mentioned in the
consultation would lie very long and cumber-
some, mid give the ecclesiasticall court little in-

formation, to direct them in any thing there-
after ; and therefore in such cases, for brevity
sake, it is usuall : but when the matter is to re-
ceive end by demurrer in law, or tryall, the
con Mil tat ion is iu another forme. And it is
their ignorance in the arches, that will not un-
derstand this, and we may not supply their
delects with changing our formes of proceed-
ings, wherein if they would take the advice of
any learned in the lawes, they might soon re-
ceive satisfaction.

8. That Consultations may "be obtainpd with
lesse charge and difficulty.

Objection. The great expences and manifold
difficulties in obtaining of Consultations are be-
come very burtheusome to those that seeke for
them ; for now a dayes, through the malice of
the plaintifes in the temporall courts, and the
covetous humours of the clerkes, Prohibitions
are so extended and enlarged, without any ne-
cessity of the matter (some one prohibition con-
taining more words and lines then forty prohi-
bitions in ancient times) as by meanes tliereof
the party iu the ecclesiasticall court, against
whom the prohibition is granted, becomes either
unwilling, or unable to sue for a consultation, it
beins now usuall and ordinary, that in the con-
sultations must be recited in eadc/n verba" the
whole tenour of the prohibition, be it never so
long ; for the which (to omit divers other fees,
which are very great) he must pay for a draught
of it in paper viii. d. the sheet, and for the entry
of it xii. d. the sheet. Furthermore, the Prohi-
bition is quicke and speedy; for it is ordinarily
granted out of court by any one of the judges
in his chamber, whereas the Consultation is very
slowly and hardly obtained, not without (often-
times) costly motions in open court, pleadings,
demurrers, and sundry judiciall hearings of both
parties, and long attendance for the space of
two or three, nay, sometimes of eight or nine
yeaivs before it be obtained. The inconve-
nience of which proceedings is so intolerable,
as we trust, such as are to grant consultations
will by your lordships meanes not onely doe
it expeditely, and moderate the said fees; but
also re forme -the length of the said consulta-
tions, according to the formes of consultations
in the Register.

Answer. It were fit tlie particular cause were
set dowue, whereupon the geucruil grievance,
that is mentioned in this article, is grounded ;
and that done, it may hat en full answer: for a
Prohibition is grounded upon the libcll, and the
Consultation must ngiee therewith also; and
therefore we doubt not, but the ground of this
grievance, when it. is well looked into, will grow
from themselves in interlacing of much nuga-
tory and unnecessary matter in their liheils : and
for the tees taken; wee assure our selves, none
are taken, but such as are anciently due and
accustomed ; and it will appiure, that we have
abridged the fees, unit length of pleadings, and
use no dehtyes, but such as are of necessity, and
we wish they would doe the like, and upon ex-
amination it will appeare of %i Inch side it gnmci.

141]

STATE TRIALS, 5 James I. 1605.— Artiadi Oeri.

[142

that the fees or delayes are so intolerable. And
where in ancient time sueh as sued for tithes,
would not sue but for things questionable,
and oever sought at their parishioners hands
their tithes in other kinds then anciently they
had been used to Ijave been paid ; now many
turbulent ministers do infinitely vexe their pa-
rishioners for such kinds of tithes as they never
had, whereby many parishes have been much
impoverished : and for example, we shall shew
one record, wherein the minister did demand
seventeen severall kinds of tithes, whereupon
the partie suing a prohibition had eight or nine
of them adjudged against the minister upon de-
nurrer in law, and other passed against him by
tryall, and this must of necessity grow to a mat-
ter of great charge ; but where is the fault, but
io the minister that gave occasion ? and we will
shew one other record, wherein tlie party con-
fessed to some of us, that bee was to sue his pa-
rishioner but for a calfc and a goose ; and that
has proctor neverthelesse put in the libeli or de-
mand of tithes, of seven or eight things more
then be bad cause to sue for : this enlarged the
Prohibition, and gave occasion of more expence
then needed ; and where is the fault of this,, but
in the ecclesiasticall courts? and as in these, so
can wee approve in many others; and there-
fore wee must retort the cause and ground of
this grievance upon themselves, as more parti-
cularly may appeare by the severall presidents
to be shewed in this behalfe.

9. Prohibitions not to be granted upon fri-
volous suggestions.

Objection* it is a prejudice and derision to
both his majesties ecclesiastical and temporal
jurisdictions, that many prohibitions are grunted
upon trifling and frivolous suggestions, altogether
tnworthv to proceed from the one, or to give
soy hinderance or interruption to the other:
ts upon a suit of tithes brought by a minister
against his, parishioner, a Prohibition flyeth out
upon suggestion, that in regard of a special
receipt, called a cup of buttered beare, made
by the great skill oi the said parishioner to cure
a grievous disease called a cold, which sorely
toebled the said minister, all his tithes were
discharged. And likewise a woman being con-
vented for adultery committed with one that
suspiciously resorted to her house in the night
limey the suggestion of a Prohibition in this
esse was, that ( omnia placita de nocturnis
* ambulation! bus' belong to the king, &c. Also
where a legatary sued for his legacy given in a
watt, the prohibition was, * Quia omnia placita
'de doms et consessionibus spectant ad forum
(regiura, et non ad forum eecicsiasticum, dum-
'modo non sint de testamento et matrimonio;'
is if a legacy were not donatio de or in testa-
mtmo, with many other of like sort. The re-
formation of all which frivolous proceedings,
so chargeable notwithstanding to many poore
Ben, and the great hind em nee of justice, we
humbly referre to your lordships consideration.

Anucer. We grant none upon frivolous
ug&estions, but for the case put, it i$ ridicul-ais

in the minister to make such a contract (if any
such were) but that maketh not the contract*
void, but discovereth the unworthiness of the
party that made the same, and yet no fault in
granting the prohibition ; but when it shall ap-
peare unto us, that such a matter is suggested
by fraud of any elerke or couuceller at law, we
will not remit such offences, but will exclude
such attorney from the court, and such coun-
ccllers from their practice at the barre. And
if they will suggest adultery to one, against
whom they prove but night walking, and doe
adjudge him for it, we are in such a case to
prohibite their proceedings: for that is a mat-
ter meerly pertinent to the temporall court ; so,
if it appeare hee hath eutred the house as a
tluefe, or a burglarer, and so in many other
cases also. And if any surmise a legacy from
the dead, where it was but a promise or pay-
ment in his life time, in that case such a suit is
to be prohibited : but if in these cases the par*
ties were named, then we might see the record,
and thereupon be directed to shew upon what
consideration these prohibitions were granted,
otherwise we shall think that these are cases
newly invented.

10. No Prohibition to be granted at his
suit, who is plaintife in the spirituall court.

Objection. We suppose it to be no war-
rantable nor reasonable course, that prohibi-
tions are granted at the suit of the plaintife in
the ecclesiasticall court, who having made
choice thereof, and brought his adversary there
into tryall, doth by all intendment of law and
reason, and by the usage of all other judiciall
places conclude himself in that behalfe ; and
although he cannot be presumed to hope for
hclpe in any other court by way of prohibition,
yet it is very usuall for every such person so
proceeding onely of meere malice for vexation
of the party, and to the great delay and hinder-
ance of justice, to find favour for the obtaining
of prohibitions, sometimes after two or three
sentences, thereby taking advantage (as he
must plead) of liis owne wrong, and receiving
aide from that court, which by his owne con-
fession, he before did conteinne; touching the
equity whereof, we will expect the answer of
the judges.

Ansucr. None may pursue in the ecclesi-
asticall court for that which the kings courts
ought to hold plea of, but upon information
thereof given to the king's courts, either by the
plaintife, or by any meere stranger, they are to
be prohibited, because they deale in that which
appertained not to then* jurisdiction, where if
they would be care full not to hold plea of that
winch appertained not to them, this needed
not : and if they will proceed in the kings
courts against such as pursue in the ecclesias-
ticall courts for matter temporall, that is to be
inflicted upon them, which the quality of their
offence requireth; and how many sentences
howsoever are given, yet prohibitions there-
upon are not of favour, but of justice to be
granted.

I W]

STATE TRIALS, 3 James I. 1 605.— ArticuU Clcri.

[1U

1 1 . No Prohibition to be granted, but upon
due consideration of the libell.

Objection. It is (we are persuaded) a great
abu*»e, and one or' (he chiefe grounds of the
ino>t of the former abuses, and many other,
that prohibitions arc granted without sight of
the libell in the ecclesiastical! court; yea,
sometime* before the libell be there exhibited,
whereas by the I awes and statutes of this realiuc
(as we thinke) the hhcll (being a bricfe declara-
tion of the matter in debate bctweeue the
plaintiie and defendant) is appointed us the
only rule and direction for the due granting of
a prohibition, the reason whereof is evident,

pleasure draw any cause whatsoever from the
ecclesiastical I court: for example, many prohi-
bit uns have lately come forth upon this sugges-
tion, that the lawes ecclesiastical! do require
two witness", win- re the common law accept* tu
of one; and therefore it i* contra It gem term,
for the ecclesiastical 1 judge to insist upon two
witnesses to prove bis cau«e : upon which *ug-
j: est ion, although many consultations have been
granted (the same being no way as yet able to
warrant and maintaiuu a prohibition) yet be-
cause \te are not sure, but that either by rea-
son of the use of it, or of some future construc-
tion, it may have given to it more strength then
is convenient, the same tending to the utter

viz. upon diligent consideration of the libell it, , .. ,, ,-,...,..

will easily uppeare, « hether the cause belong I overthrow u all ecclesiastical! jurisdiction we
to the temporall or eccloiasticall cognizance, j mtts\ ,,mnblJ desire, that bv vo,,r to"W»«P"
as on the other side without sight of the libell, i "O0<l m™™*> &t sai^ »™y be ordered to be
the prohibition must needs nm«j;e and roave • no more U!*cd.

with strange and forraignc suctions at the A**™r. It the question he upon payment,
will and pkasure of the devisor, 'nothing perti- or SL'UlnS out OI llt,,cs> or uPon the Pro,itc ot'»
nent to the matter in demand : whereupon it ! lc-llc>"\ or »»:irr,a:4y, "r audi like incidence, we

t when the judge eccle-ias- ' iir4? to ,euie lt to tlUi trya!l oi lheir law» though

cometh to passe, that

ticallis handling a matter of »'.moiiv, si prohi- i l!,c P»rty have but onewitnesse; but where

a sujjc^tiol^ that the ' l. nKlUer ,s imt determinable in the ecclts

bitkm is grounded upon

eouit tryeth * placita de advocaiionibus cccle-
' siarum, et de jure patronatu*.' And when
the libell containeth nothing but the demand of
tithe wool), and lamb, the prohibition surmiseih
a custome of paying of tithe pigeons. .So that
if it may be made a matter of conscience to
grant prohibitions only, where they doe rightly

sias-

ticail enm-r, there lyeth a prohibition cither
upon, or without such a surmise.

1°

o.

No good suggestion for a Prohibition,
that the cause is neither testamentary, nor
matrimoniull.

Oljiction. As the former device last men-

iii the ecclesia^ticall court, before nnv prohibi- i lwokil,d of causes to deale in, %i/.. testamentary,

' r ; and matnmomall : and this device iusultcth

tion be granted.

mightily in many prohibitions, commanding the

be the cause never so
il cognisance, yet bee

Answer. Who hatli an ndvow>on granted to ""P««»J "» » "»>' promtmi
him for money, beim: sued for simonv, shall ' ^dLsUtoticalljiwlge, that 1
hive a Prohibition ;' and it i* manifest, that ! "I'pawnUy oi ercle»mstic:;.
though in the libell there appeare no matter to ' "lj|1 ="lll<*"se; ^ »««* .'* "w:hcr a cause tes-
grant a prohibition, yet upon a collateral sur- i tament.iry, nor matnmomall: which suggestion,
mise the prohibition is to be granted : as where a* lt S'ew at *,,e !irs,1 uPou mI^aking, and oum-

one is sued in a spirituall court for tithes of
sitva cadttdj the paity may ?ugge$r, that thev
were grosse or grerit tree*, and have a prohibi-
tion, yet no such matter appcareth in the Hhcll.
$') if one bee sued there lor violent hand-* hii<i
on a minister by an osti'.er, as a constable, hec
Wing s>ued there may biiggcst, that the plaiutife
made an affray upon another, and he to pre-
serve the peace laid h:md.> on him, and so ha\e
a prohibition. And so in very many other like
cases, and yet upon the libell no matter ap-
penreth why a prohibition should be granted :
uml they will nevir shew, that a custome to pay
pigeons was allowed to discharge the payment
of woi'll, lnmb, or such like.

XT ./,... . ". , , ! tisrit<i. that we prohibit not so gem rail v as th

12. i\o Iruhibition to be granted under; pretend, nor «ioe in anv wise deale further th

pretence, that one witnesse cannot be re- I we oUL|lt to <i(ll.f ,0 tli*. prejudice of that whi

ceivedm the ecclesiastical 1 court, to ground apnirittincth to that jurisdiction; tut wh

a judgment upon.

Objection: There is a new devised suggestion
in the temporall courts commonly received anil
allowed, whereby they may at their will and

tin^r, the words, dc bonis et cutfillis, Ac as may
uppeare by divers anrieut prohibitions in the
Kegister; so it will not be denied, but that, be-
sides those two, divers and sundry other causes
are notoriously knowne to be of ecclesiasticall
cognizance, and that < onniltations areas bfiially
awarded, if suit in that behalfe be prosecuted,
notwithstanding the said suggestion, as ihcir
prohibition* are easily grantid ; which, ns an
injury, marching with the rv< to wound poore
men, protract suits and prejudice the courts
ecclL»iasticail, wc desire that the judges will be
pleaded to red rose.

Au%u(r, If they observe well the answer to
the former objections, thev mav be there!) v sa»
tislitc. tlr.it hc prohibit, not so generally as they

hen
lich
hen
they will dealc with mailers or temporall con*
tracts, coloured with pretended ccclusiasticall
matter, wee ought to prohibit them with that
tonne of prohibitions, mentioning, that it con-

145]

STATE TRIALS, 3 James I. 1005.— Ariiadi ClerL

[146

ceroeth not matter of marriage, nor testament-
ary: and they shall not find that we have
granted any, but by form warranted, both by
the Register, and by law : And when sugges-
tions, carrying matter sufficient, appeare to us
judicially to be untrue and insufficient, we are
as ready to grant consultations as prohibitions •
and we may not alter the forme of our prohi-
bitions upon the conceits of ecclesiastical!
judges, and prohibitions granted in tiie forme
«t downe in the article, are of that forme which
\n law they ought to be, and cannot be altered
lot by parliament.

14. No Prohibition upon surmise onely to
be granted, either out of the kings bench,
or common pleas, but out of the chancery
onely.

Objection, Amongst the causes whereby the
ecclesiastical I jurisdiction is oppressed' with
multitude of prohibitions upon surmises onely,
this hath a chiefe place, in that through incroach-
ment (as wte suppose) there are so many seve-
rall courts, and judges in them, that take upon
them to grant the same, as in the kings bencMi
fire, and in tlie common pleas as many, the one
court oftentimes crossing the proceedings of the
uther, whereas wee are perswaded, that all such
kinds of prohibitions, being originall writs,
ought onely to issue out of the chancery, and
neither out of the kings bench, nor common
pleas. And that this hath been the ancient
practice in that behalfe, appeareth by some
statutes of the reakne, and sundry judgements
at the common law ; the renewing of which
practice carrietb with it an apparent shew of
great benefit and conveniency, both to the
church, and to the subject : for if prohibitions
were to issue onely out of one court, and from
one man of ? uch integrity, judgement, sincerity,
and wisedom, as we are to imagine the lord
caaacellour of England to be endued with, it is
aot likely, that he would ever be induced to pre-
judice and pester the ecclesiasticall courts with
»s*aoy needlesse prohibitions; or, after a con-
wkation, to send out in one cause, and upon
sit and the same libell not altered, prohibition
assa prohibition, his owne act remaining upon
record before bim to the contrary. The fur-
tier consideration whereof, when, upon the
jatges answer thereunto, it shall be more tho-
roughly debated, wee must referre to your lord-
ships honourable direction and wisdome.

Ammer. A strange presumption in the ec-
detiasticall judges, to require that the kings
courts should not doe that which by law they
ought to doe, and alwayes have done, and which
by oath they are bound to doe ! and if this
shall be holden inconvenient, and they can in
discharge of us obtaine some act of parliament
to take it from all other courts then the chan-
cery, they shall doe unto us a great ease : but
the Law of the realme cannot be changed, but
by parliament : and what reliefe or ease such
an act may worke to the subject, wise men. will
soone find* out and discerne : but by these ar-
ticles thus dispersed abroad, there is a gene rail

VOI~ II.

unbeseeming aspersion of that upon the judges, '
which ought to have been for born.

15. No Prohibition to be awarded under a
false pretence, that the ecclesiasticall judges
would hold no plea for custoines for tithes.

Objection. Amongst many devices, whereby
the cognizance of causes of tithes is drawn from
ecclesiasticall judges, this is one of the chiefest,
viz. concerning the tryall of customes in pay-
ment of tithes, that it must be made in a tem-
poral! court : for upon a quirke and false sug-
gestion in Edward the fourth his time, made by
some sergeants, a conceit hath risen (which
hath lately taken greater strength then before)
that ecclesiasticall judges will allow no pica of
custome or prescription, either in non decimando,
or in modo decimandi ; and thereupon, when
contentious persons are sued in the ecclesiasti-
call court for tithes, and doe perceive, that upon
good proofe judgement Will be given against
them, even in their owne pleas, sometimes for
customes, doe presently, knowing their own
strength with jurors in the country, flie unto
Westminster hall, and there suggesting that they
pleaded custome for themselves in the ecclesi-
asticall courts, but could not be heard, doe
procure thence xery readily a prohibition ; and
albeit the said suggestion be notoriously false,
yet the party prohibited may not bee permitted
to traverse the same in the temporall court, di-
rectly contrary to a statute made in that behalfe :
neither may the judge prohibited proceed with-
out danger of an attachment, though himselfe
doe certainly know, either that no such custome
was ever a Hedged before him, or being alledg-
ed, that he did receive the same, and all man-
ner of proofes offered thereupon: which course
seemeth the more strange unto us, because the
ground thereof laid in Edward the fourth his
time, as aforesaid, was altogether untrue, and
cannot with any sound reason be maintained :
divers statutes and judgements at the common
law doe allow the ecclesiasticall courts to hold
plea of such customes ; all our bookes and ge-
nerall learning doe therewith concorre, and the
ecclesiasticall courts, both then and ever since,
even untill this day, have, and still doe admit
the same, as both by our ancient and recent
records it doth and may to any most manifestly
appeare. And besides, there are some consul-
tations to bee shewed in this very point, wherein
the said surmise and suggestion, that the eccle-
siasticall judges will heare no plea of customes,
is affirmed to be insufficient inlaw to maintaine
any such prohibition : and therefore we hope,
that if we shall be able, notwithstanding any
thing the judges shall answer thereunto, to jus-
tice the premisses, your lordships will be a
meanes, that the abuses herein complained of,
having so false a ground, may be amended.

Anftvcr. The temporall courts have alwayes
granted prohibitions as well in cases dc modo
decimandi, as in cases upon real! compositions,
either in discharge of tithes, or the manner of
tithing : for that modus decimandi had his ori-
ginall ground upon some composition in thr.t
J-

U7)

STATE TRIALS, 3 James I. }605.—Artiwli Clcri.

[144

kinde made, and all prescriptions and compos
bit ions in these cases arc to he tryed at the

oyer- borne, and poore ministers still left unto
country tryalls, there to Justine the rights ot*

common law, and the ecclesiastic all courts their tithes before unconscionable jurors in

ought to be prohibited, if in these case* they
had plea of tithes in kind : but if they will sue
in the ccclesiast icall court de vwdo decimandi,
or according to composition, then we prohibit
ihoro not : and the cause why the ecclcsiast icall
judges find fault herewith, is because many
ministers have arowne of late more troublesome
to their parishioners, then in times past ; and
thereby workc unto these courts more enmmo-
dity, whereas in former ages they were well con-
tented to accept that which was used to be
paid, and not to contend against any prescrip-
tion or composition ; but now they grow so
troublesome to their neighbours, us were it not
for the prohibition (ns may appeare by the pre-
sidents before remlnnbred) they would soone
overthrow nil prescriptions mid compositions
that are for tithe*, wrnch doth and would breed
such a general I garboile amongst the people, ns
were to be pitied, and not to he permitted.
And where thev sav, there bee many statutes
that take away these proceedings from the tem-
poral! courts, they arc much deceived; end if

these ca?es.

Ansicer, The answer to the former article
may serve for this; and w here the objection
seeuu th to impeach the try all at the commou
law by jurors, we hold, and shall be able to ap-
prove it to be a furre belter course for matter
of fact upon the testimonie of witnesses,
sworne viva wee, then upon the conscience of
any one particular man, he ins; guided by paper
proofes ; and we ne\cr heard it excepted unto
heretofore, that any statute should be expound-
ed by nny orher then the judges of the iand ;
neither was there e\er nnv so much over-seen,
as to oppose himsclfe against the practice of all
ag*»s to make that question, o? to lay any such
unjust imputation upon the judges of the
reahnc.

17. No Prohibition to he granted, because
the treble value of tithes is sued for in the
ccclttiiisi icall .court.

Objection. Whertasit appenreth plainly by
the ttnour of the statute of Edw. 6", rap. IS,

they looke well unto if, they shall find even the ! that judges ecclesiastical!, and none other, are
,same statutes, they protend, to give way ento it. j to licare and determine all suits of tithes, and
And it is strange they will nliirme so great an other duties for the same, which are given by
untruth, as to say, they are not permitted to the said act ; and that nothing else is added
traverse the suggestion in the tempor.di court; j t •» former lawes by that statute, but oncly cer-
for both the law nud daily practice doth allow taine penalties, for example, one of treble
it. value: forasmuch us the said penalty, being

on civ devfeed as a mcanes to worke the better
1G. The Customcs for Tithes arc onc.y to be . pliV,MH1t of tithes, and for that there are no
tried in the ecclesiasucall conns, and ' v.ord,used in the said statute to give, jurisdic-
ought not to be drawne thence by Trohi- :ioll l0 aiiy tiuiiponilL court, we hold it most ap-
parent, that the said penalty of treble value.

bilious.

Objection. Although some indiscreet ccclc-
Viasticull judges, either in the time of king Ed-
ward the 4th, or Edward the Gth, might,
against law, have refused in some one cause to
admit n plea of custoiue of tithes, to the preju-
dice of some person whom he favoured, and
might thereby pcradventure have given occa-
sion of some one prohibition, but whether they

being a duty gircn in the snid statute for non-
payment of tithes, cannot bee demanded in the
temporal! court, but onely before the ecclesias-
tical! judges, according to the expresse word*
of the said statute -. and the rather, wee are so
persuaded, because it is most agreeable to all
luwcs r.nd reason, that where the principal!
cause is to bee decided, there ail things ma-

did so or no, the suggestion of a lawyer for his j dent and accessary are to bee determiner!,
fre is no good proofc, yet forasmuch as by j Ik'aidcS:, it was the practice of all eeclesinstt-
tlirrc statute* made since that time, wherein it i call courts in this ri-alme, immediately after the
is ordained, viz. both that tithes should be truly : making of the kui«1 statute, and hath continued
paid, according to the custome, and the trvall so ever since, to c.ward treble damages, when
of such payments, according to custumc upon , there hath been cju^*, without any opposition,
any default or opposition, should be tryed in I untill about ten yu:ircs pa*t, when, or about
the king-* ecele>iasticall court?, and by the , which tin. -\ rjoiwiii.^andmg the premisses, the
kings ecclcsiasticall Jnwes, and not otherwise, ' temporal! judges be^aa to hold plea of treble
or before any other judges then ccclc-Ma-t icall, value, and doe now aconnpt it so proper nnd
we most humbly desire your lordships, that if j peculiar ;u their jrrisdictions, as In colour
uccordir.g to the said lawes we*bc most ready i thereof tl:< \ admit suits originally for the said
to heare :uiy plea ot customes your lordships , penalty, and doc make thereby, wrv absurdly,
would be pleaded, that the judges may not be I the penalty nf trchle value I > live principal),
permitted hereafter to grant any prohibitions : whi<:'» is indeed hut the itccc.-^ry; t:\A the
upon such false surmises; or if they shall an- ' e< ::ii/.:»ncf of tithes to lice but t'la accessary,
swer, that wee mistake the said statutes, that wlneh in all due construction is most evident to
then the said three statutes inav bee throughly ; he the principal!, thereby wholly perverting the
debated before your lordship?, lest under pre- true nuan.ing ia\d drill of that statute, where-
tence of a right, which they challenge, to ex- ; upon if in the *pirituail court the treble value
yound these kind of statute*, the truth may be be now demanded by the libel! as a duiv, cc*

Uv]

STATE TRIALS, 3 JaKes I. 1605.— Articidi CUru

[150

cording to that stature, or that sentence be
awarded directlj and sincerely upon the said
hbcll, presently, as contentious persons are
disposed, a prohibition is grunted, and some
sharp words are further used, as it' the ecclesi-
asticall judges were in some further danger for
holding of these kind of pleas: and then fore
nemost humbly desire, that if the judge** shall
must in their answers upon such their strain-
ing of the said statute, your lordships will he
ffceased to heare the same further debated by
to with them.

Answer. If they observe well the statute,
they shall find, that the ecclesiasticall court is
by that statute to hold plea of no more, then
that which is specially thereby limited lor them
to bold plea of ; and (he tempo rail court not
restrained tliereby, to hold plea of that which
is not limited unto the ecclesiasticall court by
that act, and of that they hud jurisdiction o(
before : and the forfeiture of double value is
eipretly limited to be recovered before the cc-
deViasticali judges ; but where a forfeiture is
given by an act generally not limiting where to
tie recovered, it is to be recovered iii the kiugs
temporal I courts, and the cause why it is so di-
tided, seemeth to be for that, where by that
act, temporall men were to hue for their tithes
in the ecclesiasticall court, where it was then
presumed they were to have no great favour :
therefore the party grieved might, if he would,
pursue for the forfeiture of the treble value in
the temporall court, where hee was to recover
oo Utiles ; but if he would sue where he might
also recover the tithes, then hee would pursue
tor the double value : for th;it is specially ap-
poiuted to be recovered in the ecclesiasticall
court, but not the treble value. And although
the? alledge, that they sometimes used to main-
taine suit tor the treble value, yet as soon ns
tout was complained ot' to the kings courts,
they ga»e remedy unto it as appertained.

13. No Prohibition to be awarcled, where
die pcrsoii is stopped from carrying away
of his tithes by him that setteth thein
forth.

Objtction. As the said statute of Eduard
the 6th last mentioned assigneth a penalty of
treble valae, if a m»n upon pretence of cus-
tom*, which cannot be justified, shall take
tway Jus ccrne before he hath set out his tithes ;
to also in the said statute it is provided, that if
any man having set out his tithes, shall not af-
terwards surfer the parson to carry them away,
Ace. he shall pay the double value thereof so
carried uwav, the same to be recovered in the
ecclesiasticall court. How be it the clearnesse
of the statute in this point, notwithstanding
in; a ne* are found to draw this cause also from

in*; or intent that the parson shall ever carry
them away ; for presently thereupon they will
cause their owne servants to load them away to
their owne barues, and ieaye the parson as he
can to seek his remedy ; which if Le do attempt
in the ecclesiasticall court, out comet h a Pro^
hibition, suggesting, that upon severance and
setting forth of the tenth part from the nine,
the sume tenths were presently by law in the
parsons possession, and being thereupon be-
come a lay chattell, must be recovered by an
action of tiespastc at the common law, whereas
the whole pretence is grounded upon a ineere
perverting or' the statute, which doth both or-
dain, that all tithes shall be set foith truly anut
justly without fraud and guile ; and that also
the pardon shall not be stopped or hindered

from

carrying

or ■

them awav. neither of which

conditions me observed when the farmer doth
set them to. t h, meaning to curry them away
himselfe, for that is the fraudulent setiing of
them out ; and ulso, when accoidingly hee
taketh them away to his own use ; for thefeby
hee stoppeth the parson to carry them away :
and consequently the penalty of this offence is
to bee rccovcied in the said ecclesiasticall
courts, according to the words of >he said sta-
tute, and not in any court temporall : wherefore
we most humbly desire your lordships, that ti-
the? the judges may make it apparant to your
lordships, that we mislikx; this statute in this
point, or that our ecclesiasticall courts may
ever hereafter be freed from such kinds of pro-
hibitions.

Answer. For the matter of this article it is
answered before, and where the truth of the
case is, that he that ought to pay predinll tithes,
doth not divide out his tithes, or doth in any
wise interrupt the parson* or his deputy, to see
the dividing or setting oftliem out: that ap-
pearing unto unjudicially, we maintain no pro*
hihitiou upon any suit there tor the double
value, but if after the tithes severed, the parson
will sell the tithes to the party that divided
them, upon the surmise thereof, we doe, and
ought to grunt a prohibition ; but if that sur-
mise doe prove untiuc, we do us re.idily grant
a consultation, and the party seeking the same,
is, according to the statute, to have his double
costs and damages.

19. No prohibition to be granted upon any
incident plea in an ecclesiasticall cause.

Objection, Wc conceive it to be great injury
to his majesties ecclesiasticall jurisdiction, thac
prohibitions are awarded to hi** ecclesiasticall
courts upon every by, and evtry incident plea
or matter alledged there in barre, or by way
of exception, the principall cause being un-
doubtedly of ecclesiasticall cognizance : tor

tie ecclesiasticall court ; for such as of hatred i example, in suit for tithes in kind, if the limits

of the parish, agreements, compositions, and
arbitrariments, as also whether the minister
that sueth as parson, be indeed parson or vicar,
doe come in debate by way of barre, although
the same particulars were of temporal! cogni-
zance (as some of them woe may boldJj

towards their ministers arc disposed to vexe
them with suits ut the common law (where
they titide more favour to main taine their
wrangling, then they can hope for in the eccle-
uafeticall court) will not raile to set out their
tribe* before witnesses, but not with any mean-

131]

STATt TRIALS, 3 James I. \Wk-»*ArtkuH Clcri.

[152

not) yet they were in this case examinable iu
the ecclesiasticall court, because they are mat-
ters incident, which come nut in that cane
imally to be sentenced and determined, but
a,e used as a meane and furtherance for the
decision of the maine matter in question. And
so the case standeth in other such incideut
pica* by way oi barre; for otherwise either
party in every cause might at his pleasure, by
pleading some matter temporal I by way of ex-
ception, make any cause et/cicsiasticall whatso-
ever subject to a prohibition, which is contrary
to the reason of the common law, and sundry
judgments thereupon given, as wee hope the
judges themselves will acknowledge, and there-
upon yeeld to have such prohibitions hereafter
restrained.

Answer. Matters incident that fall out to
be meere temporal I, are to be dealt withall in
the temporal 1, and not in the' ecclesiastical
court, as is before particularly set downe in the
eleventh article.

20. That no tempo rail judges, under colour
of authority to interpret statutes, ought,
in favour of their Prohibitions, to make
causes ecclesiasticall to be of temporall
cognizance.

Objection, Although of late dayes if hath
been strongly held by some, that the interpre-
tation of all statutes whatsoever doe belong to
the judges temporally yet we suppose, by cer-
tuin evil effects, that this opiuiou is to bee
bounded within certaine limits ; for the strong
conceit of it hath already brought forth this
fruit, that even those very statutes which doe
concern e matters meerly ecclesiasticall, and
were made of purpose with great caution, to
preserve, enlarge, and strengthen the juris-
diction ecclesiasticall, have bee*n by colour
thereof turned to the restraining, weakening,
and utter overthrow of the same, contrary to
the true intent and meaning of the said sta-
tutes : as for example (besides the st ranee in-
terpretation of the statutes before mentioned,
for the payment of tithes) when parties have
been sued in the ecclesiastical court*, in case
of an incestuous* marriage, a prohibition hath
Urn awarded, suggesting, under pretence of a
Btitute iii the lime of king Hen. 8. that it ap-
pertained) to the temporall courts, and not to
the ecclesiasticall, to determine what marriages
are lawfull, and what are incestuous by the
•word of God. As also a minister, being upon
paiit of deprivation for his insufficiency in the
tvcleiiuxtical court, a prohibition was granted,
M|Min suggestion that all plens of the fitnesse,
leurning, and sufficiency «f ministers belong
only to the kings temporall courts, relying, as
wee »tippo»e, upon the statute of 13 Eliz. by
which kind of interpretation of statmes, if the
nimunv't disposing, or ordering of causes eccle-
siasticall in n statute shall make the same to be
ill* temporal cognizance, and so ubolish the
iurv*diction of tlie ecclesiasticall court, without
awv ftirther circumstances, or expresse words
fc» warrant the tame, it followeth, that foras-

much as the common Book and Articles of re-
ligion are established and confirmed by severall
acts of parliament, the temporall judges may
challenge to themselves an authority to end and
determine of all causes of faith and religion,
and to send out their prohibitions, if any eccle-
siasticall judge sliall dcale or proceed in any
of them : which conceit, how absurd it is,
needeth no proofe, and teacheth us, that when,
matters meerly ecclesiasticall are comprized in
any statute, it doth not therefore follow, that
the interpretation of the said matters doth
belong to the temporall judges, who by their
profession, and as they are judges, are not ac-
quainted with that kind of learning: hereunto,
when we shall receive the answer of the judges,
we shall be ready to justifie every part of this
article.

Answer. If any such have slipt, as is set downe
in this article, without other circumstances to
muintaiue it, we make no doubt, but when that
appeared to the king's temporall court, it hath
been presently remitted ; and yet there be
cases, that we may deale both with marriages
and matters of deprivation, us where they will
call the marriage in question after the death of
any of the parties, the marriage may not then
be called in question, because it is to bastard
and disinherit the issues, who cannot so well
defend the marriage, as the parties both living
themselves might have done ; and so is it, if
they will deprive a minister not for matter ap-
pertaining to the ecclesiasticall cognizance, but
for that which doth meerly belong to the cog-
nizance of the king's temporal courts. And
for the judges expounding of statutes that con-
cern the ecclesiasticall government or pro-
ceedings, it helongeth unto the temporall
judges ; and wee thinkc they have been ex-
pounded as much to their advantage, as either
the letter or intention of lawes would or could
allow of. And when they have been ex-
pounded to their liking, then they could approve
of it ; but if the exposition be not for their
purpose, then will they say, as now they doe,
that it nppertaiucth not unto us to determine
of them.

21. That persons imprisoned upon the writ
of de. excommunicato capiendo are unduly
delivered, and Prohibitions unduly awarded
for their greater security.

Objection. Forasmuch as imprisonment upon
the writ of excommunicato capiendo is the chief-
est temporall strength of ecclesiasticall jurisdic-
tion, and that bv the lawes of the realm none so
committed for their contempt in matters of
ecclesiasticall cognizance, ought to be delivered
untill the ecclesiasticall courts were satisfied, or
caution given in that behalfe, we would gladly
be resolved by what authority the temporall
judges do cause the sherifes to bring the said
parties into their courts, and by their owne
discretions set them at liberty, without notice
thereof first given to the ecclesiasticall judges,
or any satisfaction made either to the parties
at whose suit he was imprisoned, or the eccle-

K53]

STATE TRIALS, 3 James I. 1G05.— Articuli Ckri.

[154?

stasticall court, where certaine lawfull fees are
due c and after all this, why doe they likewise
send out their prohibitions to the said court,
commanding, that all censures against the
said parties shall he remitted, and that they be
no more proceeded with for the same causes in
those courts. Of this our desire, we hope your
lordships do see sufficient cause, and will there-
fore procure us from the judges some reason-
able answer.

Answer. We affirme, if the party excommuni-
cate be imprisoned, wee ought upon complaint
to send the kings writ for the body and the cause,
and if in the returne no cause, or no sufficient
cause appeare, then we doe (as we ought) set
him at liberty ; otherwise, if upon removing the
body, the matter appeare to be of ecclesiastical I
cognizance, then we remit him againe; and this
we ought to doe in both cases ; for the tem-
porall courts must alwaies have an eye, that
the ecclesiasticall jurisdiction usurp not upon
the temporall.

22. Tbe King's authority in ecclesiasticall
causes is greatly impugned by Prohibitions.

Objection. We are not a little perplexed
touching the authority of his majestie in causes
ecclesiasticall, in that we find the same to be
so impeached by Prohibitions, that it is in ef-
fect thereby almost extinguished ; for it seem-
eth, that the innovating humour is growne so
rank, and that some of the temporall judges
are come to be of opinion, that the commis-
sioners appointed by his majesty for his causes
ecclesiasticall, having committed unto them the
execution of all ecclesiasticall jurisdiction an-
nexed to his majesties impenall crowne, hy
virtue of an act of parliament made in that
behalfe, and according to the. ten our and effect
of bis majesties letters patents, wherein they
are authorised to imprison, and impose fines,
as they shall see cause, cannot otherwise pro-
ceed, the said act and letters patents notwith-
standing, then by ecclesiastical! censures oncly:
and thereupon of latter dayes, whereas certaine
lewd persons (two for example sake) one for
uxorious adultery and other intolerable con-
tempts, and another for abusing of a bishop of
this kingdome with threatning speeches, and
sundry railing termes, no way to be endured,
were thereupon fined and imprisoned by the
stid commissioners, till they should enter into
bonds to performe further orders of the said
court; the one was delivered by an habeas cor-
nt oat of the kings bench, ana the other by a
nke writ out of the common pleas : and sundry
other prohibitions have been likewise awarded
to his majesties said commissioners upon these
suggestions, viz. that they had no authority
either to fine or imprison any man ; which in-
novating conceit being added to this that fol-
loweth, That the writ of dt excommunicato ca-
piendo cannot lawfully be awarded upon any
certificate or signijicavit made by the said
commissioners, wee find his majesties said su-
preme authority in causes ecclesiasticall, so
largely amplified in sundry statutes, to be alto-

gether destitute in effect of any meanes to up-
hold it, if tiie said proceedings by temporall
judges shall be by them maintained and justi-
fied ; and therefore wee most humbly desire
your lordships, that they may declare them-
selves herein, and be restrained hereafter, if
there be cause found, from using the kings
name in their prohibitions, to so great prejudice
of his majesties said authority, as in debating
the same before your lordships will hereafter
more fully appeare.

Answer. We doe not, neither will we in
any wise impugne the ecclesiasticall authority
in any thing that appertained! unto it ; but if
any by the ecclesiasticall authority commit any
man to prison, upon complaint unto us that he
is imprisoned without just cause, we are to
send to have the body, and to be certified of
the cause ; and if they will not certifie unto us '
the particular cause, but generally, without
expressing any particular cause, whereby it
may appeare unto us to be a matter of the ec-
clesiastical cognizance, and his imprisonment
be just, then we doe and ought to deliver
him : and this is their fault, and not ours*
And although some of us have dealt with them
to make some such particular certificate to us,
whereby wee may bee able to judge upon it,
as by law they ought to doe, yet they will by
no ineanes doe it ; and therefore their errour is s
the cause of this, and no fault in us : for if we
see not a just cause of the parties imprison-
ment by them, then we ought, and are bound
by oath to deliver him.

23. No Prohibition to be granted, under pre-
tence to reforme die manner of proceed-
ings by the ecclesiasticall lawe«, in causes
confessed to be of ecclesiasticall cogni-
zance.

Objection. Notwithstanding that the eccle-
siasticall jurisdiction hath been much iinpench-
ed heretofore through the multitude of prohibi-
tions, yet the suggestions in them had some
colour of justice, as pretending, that the judges
ecclesiasticall dealt with temporall causes : but
now, as it seemeth, they are subject to the
same controlments, whether die cause they
deale in be either ecclesiasticall or temporall,
in that prohibitions of late are wrestled out of
their owne proper course, in the nature of a
writ of errour, or of an appeale : for, whereas
the true and onely use of a prohibition is to re-
straine the judges ecclesiasticall from dealing
in a matter of temporall cogiyizance, now pro-
hibitions are awarded upon these surmises, viz.
that the libel I, the articles, the sentence, and the
ecclesiasticall court, according to the ecclesiasti-
call lawes, are grievous and insufficient, though
die matter there dealt withall be meerly ecclesi-
astical : and by colour of such prohibitions, the
temporall judges to alter and change the de-
crees and sentences of the judges ecclesiasticall,
and to moderate the expences taxed in the ec-
clesiasticall courts, and to award consultations
upon conditions : as for example, that the
plainufe in the ecclesiasticall court shall except

I 5 J)

STATE TRIALS, 3 James I. lOoS.— Artiatli Oct!.
warded, and thus

[150

uf the one balfe of the ci
the register shall lose li

tuiri piuintife shall be contented with the pay-
ment uf hi* legacy, which was the principal!
sued fur, mid adjudged due until him at snch
day, ns they the said temporal! judges shall
appoint, or else the prohibition must stand.
And ulso where his majesties commissioners,
lor causes ecclesiastical, have not been accus-
tomed to give a copy of the articles to any
party, before lie hath nnsv ercd them ; and
that theitatutuofIIe.il. 5. touching the deliver-
er the libell, was not onely publikelj nd-
kings bench, not to extend

deliveru i ice of articles, where the putty is pro-
ceeded with e.r officio, but likewise imparted to
his majestic, and afterwards divulged in the
stnrre-chamber, us a full resolution of the
judges, yet withiu I Or 5 inoneths after, a pro-
hibition was awarded tu the said commissioners
out of the kings bench, upon suggestion that the
party ought to have a copy of thu articles, being
called in question ejf officio, before he should an-
swer them ; and notwithstanding that u motion
was made in full court .shortly after for a consul ta-
twin, yet an order was en [red, that the prohibi-
tion should stand untill the said partie bad a
copy of the said nitidis given him ; which .
veil and extraordinary courses doe seem very
strange unto us, and are contrary not onely to
the whole course uf hi* majesties law es ecclesi-
aslicall, but also to the very maximes and
judgement of the common law, and sundry
statutes uf this realme, as wee shall be ready
jusiilie liel'nre your lordships, if the judjj
shall endeavour to muhitaine these thtir pr:.-
ceedings.

Ansicf. To this we say, that llimi|>]i wIiltc
parties are proceeded wit hull ex officio, there
needeth no libell, yet ought they lu hnve the
cause made know tie unto them lor which llicy
ure called ex offieiii, before tliey be examined,
10 the end it may appearo unto them before
their examination, whether the cause be nf ec-
clesiastical I cognizance, otherwise they ought
not to examine tlitrn upuii uat'l. And touch-
iu« the rest of this article, thev doe ut.terlv
mistake it.

-e swnrno to dc-
» diction.
Objection. We may not omit to signiiie
votir lordships that, as wee lake it, the
pnrall judges are not onely hound by the
eiciit oath, ilmt ihey shiill doc nothing t
dis-herison of the crown, but also by n latter
nulh unto the king's supremacy, wherein thev
doe swL'jre, tbnt, to their power, they will
assist and deft-nd all jurisdictions, piivilcdgus,
prehe mi nonets, and authorities united and an-
nexed to tin imperial! cronne of this re n line ;
in which words the ecclesiastical! jurisdiction
is specially aimed at : so that whereat they doe
ofitntiims insist upon f.irlhcir oath, for doing
of jtlstice in temporal I rautes, and do seldomc
make mention of the second oath taken by
thtm fur the defence of the ecclesiastical I juris-

diction, with the rights and immunities belong*
ing to the church ; we think, that thry ought
to weigh their said oaths better together, uiid
not so liirrc to emend the one, as that it should
in any sort prejudice the other : the duo con-
sideration whereof (which we most instantly
desire) would put them in nuod, any suggestion
to the contrary notwithstanding, to be as enro-
full not to doe any thuig that may prejudice
the lawful! proceedings of the ccdisiusiicall
judges in ecclesiastical! causes, as I hey an; cir-
cumspect not to suffer any impeachment, or
blemish of their owne jurisdictions and pro-
ceedings in causes temporal!.

Amnier. We are assured, than none can
justly charge any of us with violating our oaths,
and it is a strange part to use judges in this
manner, and to lay so great an imputation upon
us; and what scandnil it will be to the justice,
of the rtuluie to have so great levity, and so
foulo an imputation luid upon the judges, as is
dune in this, is too manifest. And we arc as-
sured it cannot be shewed, that the like hath
been done in any former age; and lor lesse
scandals then this of the justice of the rculnie,
divers hare been severely punished.

25. That E j. communication is as lawful), as
Prohibition, for the mutual! preservation
of both his majesties supreme jurisdiction.
Objection. To conclude, whereas for the
better preserving of his majesties two supreme
jurisdictions before mentioned, vii. the eccle-
siastical! mid the temporall, that the one might
not usurp upon the other, two meanes hereto-
fore hnve of ancient time bten ordained, tiiat
i, to say, the censure of Eicon nnunieat ion, uiid
the writ of Prohibition ; the one to restraine the
mi 'i-oachinciit til the leiuporull jurisdiction upon
the ecclesiastical!, the other of the ecclesiastic
cull upon the temporall, we most humbly de-
sire your lordsleps, that by your lueaaes the
judges may be induced to resolve us, why ex-
communications may nor. us tieely be put it)
ure lor the prescivuiioii of the jurisdiction cc-
clesiasticall, as probibirif.ns arc, under pretence
to defend the umporull, especially against such
coutoiuiy us perrons, as due wittingly and wil-
lingly, upon false und frivolous suggestions, to
the deljy of justice, vcvation of the subjects,
and great scnndall of eccksinsticall jurisdic-
tions, daily procure, without leare either of
(iod or mil), such undue prohibitions, us we
have heretofore mentioned.

.lunar. The excommunication cannot be
gain-said, neither may tlic prohibition be di-
med upon tin: surmise mad,-, that the matter
pursued in The erelesiasticall court is of tem-
porall cognizance, but as soon us that shall ap-
jndicially to be false, we grant

isiilt.il

For the better
and your lordship

hich hath been said) the ordinary pn£

salfLictum of Ins majesty,
s, touching the objections.
rrobibitioiis, we lime 'thought
e (as May bo perceived "by

:ecding in bis majesties cuurts therein i wiser*.

137]

STATE TRIALS, 3 James I. 16Q5.—ArticuU Clcri.

[15&

by it may appcarc both what the judges doe,
oiid ought to doe in those causes; and the
ecclesiastical judges may doe well to consider,
what issue the course they herein hold can have
in the end *. and they shall find it can be no
other, but to cast a scandall upon the justice of
the realme ; for the judges doing hut what they
ought, and by their oaths are bound to doe, it
nnot to be railed in question; and if it kill
oat, tint they eric in judgement, it cannot
otherwise be reformed, but judicially in n

* Mr. Justice Foster, before he was made a
•abe, published a Tract entitled " An Exami-
nation of the Schism of Church power, laid
down in the ' Codex Juris Ecclesiastic! Angli-
oni, &e." It is ably written, and contains
much learning relative to the ecclesiastical law
and history of England, but it is composed with
t'jo much spleen towards bishop Gibson, the
author of the Codex. This Case is much con-
sidered in it, and the following passage is
thought worth insertion here : " It may easily
be made appear, if it. shall be thought necessary,
rhat Prohibitions have gone from the temporal
to the spiritual courts, as from a superior to an
inferior jurisdiction, ever since the two juris-

• dictions have been separated ; and, indeed, the
notion of a subordination of jurisdictions im-
plies that it is the province of the one to re-
strain and correct the excesses of the other.
Thi* supremacy of the Courts of Westminster-
hall over the Ecclesiastical, hath in all ages
pren £reat disturbance to that part of the
C'ltrgy who hare affected an absolute independ-
ence on the state. The arguments, indeed,
which have been employed against ir, have been
•iiflerent, as the temper of the times and the
circumstances of the Church have varied. But
the point in view hath been generally the same,
thr lmlependance of the Church. In popish
time*, when the Church could scold and thunder
*.th impunity, this independency was claimed
in direct terms ; and the king and all his civil
*inwters. were admonished not to disturb
'bfcChureli in the exercise of spiritual discipline
b prohibitions and attachments grounded on
'i?Hj, under pain of excommunication, suspen-
se, and interdict. Hut since the supremacy
*»f th*j crown in ecclesiastical causes hath been
«tpemc«l a fundamental principle of our con-
ftitutiuii, that very supremacy hath been thought
a 'lUV'it lit argument for overthrowing the im-
i»-nt jurisdiction of the temporal, over the
tpintu;-! court*. Archbishop Bancroft made
thi-> r*i- of the re^al supremacy, in the Articles
h'.*»-\i.i!uted to the lords of the Privy Council
a?ain-t :le Jadses of Westminster Hall upon
f!;f» In- d fd" Prohibition^. His lord*hip (Gibson
Li-i;op of Tendon) hath adopted the argument,
aijil pitted it with all the advantage it i« ca-
yXblf of: "The authority o( spiritual courts and

* temporal courts of law flowing equally from
Mii* crown, mid it btingof so great importance
' to thecood «f the community tin! each be
4 kept within its proper bounds, it «-cctns by no
1 puraoi ajrccabje to that equality of original

suporiour court, or by parliament. — Subscribed
by all the judges of England, and the barons of
the exchequer, Pascb. 4 Jacobi, and delivered
to the lord chancellour of England.

Which answers and resolutions, although they
were not enacted by authority of parliament, as
our statute of Artieuli Clcri in 9 E. 2. was;
yet, being resolved unanimously by all the
judges of England, and barons of thfrtxehequer,
are for matters in law of highest authority
next unto the court of parliament *.

■ ■ ■ ■ r ■■

' and descent, nor a way in any degree likely to
' attain that important end, that the one should

* he set as a judge over the other, and prescribe
( bounds to it arid take to itself the cognizance
' of whatever matters itself shall please. I shall
' not say how well the bound $ in the present case
' are preserved upon that foot, but certainly it

* would not be thought a good expedient* for;

* preserving bounds of any other kind to im-

* power one to judge for both (i. e. to impower
1 him to encroach upon his neighbour and en-
' large his own bounds at pleasure) as oft a*

* any controversy shall arise/ — The force of
this reasoning from the equality of original,
I think lies here : the temporal and spiritual
courts How equally (or rather alike) from the
crown, or are equal in point of original and
descent ; therefore they are or ought to be
equal iu point of jurisdiction ; the one ought not
to have a restrictive power over the other. If
this be not his lordship's inference how can it
be said that the setting one of the courts as
judge over the other seems not agreeable to their
equality of original and descent? But if hik
lord-hip intended to infer an equality in point
of jurisdiction from what he is pleased to caU
an equality of original and descent, he will be
pleased to apply the same reasoning to every
other court in the kingdom from the high court
of Parliament to the court of Pipowdcr, and if
it should appear that they all flow equally or alike,
from the same original law and immemorial
custom, I fear his argument will conclude
ttgainst any manner of subordination amoii£
them in point of jurisdiction, which would be,
carrying the matter much farther than he in-
tended; though, I confess, I do not know where
to stop, if the argument grounded on the equa-
lity of original, with regard to die spirituals and
tern ponds, concludes at all in favour of ijie
former. But his lordship has favoured us witl^
another train of reasoning against Prohibitions,
grounded on the seeming absurdity and incon-
venience of setting one court adjudge o\er the
Other, in questions touching! the bounds of their
.-evcral jurisdictions : and if the case was, as his
lordship represents it, the absurdity and incon-
venience would be ereat indeed, ii the tempo-
ral c.-jnit might lawfully take to itself the cog-
li'/nnri'* of whatever matters it«elf-shnfl please ;
or v;'s empowered to encroach upon the spiri-
tual, *md to. enlarge its own bounds at pleasure:
if I'M*, T say, was implied in the risht claimed
hy th*» temporal courts, of giving remedy
again*; the encroachment of ^lie ecclesiastical,

159] STATE TRIALS, 4 James I. 1606.— The Trials of the Conspirators [160

(which is all that is intended by the writ of
Prohibition) the absurdity would' be as great ns
his lordship endeavours to represent it. Bat
his lordship will forgive me, if I say the absur-
dity lies only in his state of the case. Our ex-
cellent constitution is not chargeable with it.
The bounds of ecclesiastical jurisdiction are al-
ready settled hy law and immemorial custom,
to which Mi judges are obliged by oath and by
the duty of their place to conform themselves.
The granting Prohibitions is not a power to be
exercised or not at the pleasure of the court.
It is not the court's taking to itself the cogni-
zance of whatever matters itself shall please, or
enlarging its own jurisdiction, at pleasure; no,
it is a matter of mere right, in which the judges
are to be guided by the known laws of the land,

and not by will and pleasure/* — See also a A
short View of the Conduct o/ the English Clergy
so far as relates to civil affairs from the Con-
quest to the Revolution," published 1737, and
said to be written by sir Edmund Thomas, bait.
Collier argues resolutely against the authority
of these determinations ot the Judges. He
maintains that the questions arising out of a
contest for jurisdiction between the temporal
and ecclesiastical judges ought not to be deter-
mined by either of those parties. Against lord
Coke, he cites lord Co. 8 Rep. 117 et seq. : and
other common law authorities. See Coll. Eccl.
Hist. vol. 1, 510, et seq. : vol. 2, 688. Repeated
instances of a collision between the Judges,
and Bishops occur in lord Coke's 18th Re-
port.

80. The Trials of Robert Winter, Thomas Winter, Guy
Fawkes, John Grant, Ambrose Rookwood, Rob. Keyes,
Thomas Bates, and Sir Everard Digby, at Westminster, for
High Treason, being Conspirators in the Gunpowder-Plot : *
3Jac. I. 27th Jan. a. d. 1606.

TlIE Commissioners were, the Earls of Not-
tingham, Suffolk, Worcester, Devonshire, Nor-
thampton, and Salisbury ; the Lord Chief Jus-
tice of Englund, sir John Popham, the Lord
Chief Baron of the Exchequer, Thomas Flem-
ing ; and sir Peter Warburton, knight, one of
the Justices of the Common-Pleas.

The Effect of the Indictment.

' That whereas our sovereign lord the king
' had, by the advice and assent of lus council,

* for divers weighty and urgent occasions con-
' ccrning his majesty, the state, and defence of

* the church and kingdom of England, appointed
' a Parliament to be holden at his city of West-

* minster ; That Henry Garnet, Superior of the
< Jesuits within the realm of England, (called
' also by the several names of Wally, Darcy,
' Roberts, Farmer, and Henry Philips) Oswald
' Tesinond, Jesuit, otherwise called Oswald
*' Green well, John Gcrrnnd, Jesuit, (culled also

* hy the several names of Lee and Brooke) Ro-

* bert Winter, Thomas Winter, gentlemen, Guy
' Fawkes cent, otherwise called Guy Johnson,
4 Robert Keyes gent, and Thomas Bates yeo-
' man, late servant to Robert Gates by esquire ;
' together with the said Robert Cateshy, and
« Thomas Percy esquires, John Wright and
-' Christopher Wright gentlemen, in open Re-
' bellion and Insurrection against his majesty,

* lately slain, and Francis Tresham esq. lately
' dead ; as false Traitors agsinst our said sove-
' reign lord the king, did traitorously meet and
' assemble themselves together ; and being so
' met, the said Henry Garnet, Oswald Tes-
t mond, John Gerrard, and other Jesuits, did

* For the Proceedings in Parliament re-
specting this PJot, see 1 Cobb, Pari. Hist.
>042, et tec},

' maliciously, falsely, and traitorously move
' and persuude as well the said Thomas Winter,
' Guy Fawkes, Robert Keyes, and Thomas
' Bates, as the said Robert Catesby, Thomas

* Percy, John Wright, Christopher Wright, and
' Francis Tresham, That our said sovereign lord
' the king, the nobility, clergy, and whole com-
' monalty of the realm of England, (papists ex-
' cepted) were heretics ; and that all heretics
' were accursed and excommunicate ; and that

* none heretic could be a kiug ; but that it was

* lawful and meritorious to kill our said sovereign
' lord the king, and all other heretics within

* this realm of England, for the advancing and

* enlargement of the pretended and usurped
' authority and jurisdiction of the bishop of
' Rome, and for the restoring of the supersti-
' tious Romish religion wi(hiu tins realm of
' England. To which traitorous persuasions,
' the said Thomas Winter, Guy Fawkes, Ro-
' bert Keyes, Thomas Cates, Robert Catet-

* by, Thomas Percy, John Wright, Christo-
' pher Wright, and Francis Tresham, trafca-
' rously did yield their assents ; And that there*

* upon the said Henry Garnet, Oswald Tet-
' mond, John Gerrard, and divers other Je»
' suits ; Thomas Winter, Guy Fawkes, Robert
' Keyes, and Thomas Bates, as also the said
' Robert Catesby, Thomas Percy, John Wright,

* Christ. Wright, and Francis Tresham, traito-
' rously amongst themselves did conclude and
' agree, with Gunpowder, as ic were with one
1 blast, .suddenly, traitorously and barbarously

* lo blow up and tear in pieces our said sove-
1 reign lord the king, the excellent, virtuous,
' and gracious queen Anne, his dearest wife, the
' most noble prince Henry, their eldest sob,
' and future hope and joy of England ; and
' the lords spiritual and temporal, the reverend

' judges of the realm, the knights, citizens unci '

101]

STATE TRIALS, 3 James I.

4 burgesses of parliament, anil divers other fnith-

* ful subjects and servants ut' the king in the
' said parliament, for the causes aforesaid to be

* assembled in the house of parliament ; and

* all them, without any respect of majesty, dig-

* nity, degree, sex, age or place, most barba-
4 rou*ly and more than beastly, traitorously,
' and suddenly to destroy and swallow up.
1 And furl her did most traitorously conspire
'and conclude among themselves, That not
1 only the whole royal issue-male of our said
'sovereign lord the king should be destroy-
*ed and rooted out ; but that the persons u-
4 foresaid, together with divers other false trai-
1 tors, trnituroi'&ly with them to be assembled,
4 should surprize the persons of the noble ladies
4 Elizabeth and Mary, daughters of our said

* sovereign lord the king, and falsly and traito-
4 run sly slxmld proclaim the said lady Eliza-
4 beth to be queen of this realm : Aim therc-

* upon should publish a certain traitorous Pro-
clamation in the name of the said lady Eli-
4 zabeth ; wherein, as it was especially agreed
4 by and between the said conspirators, That
4 no mention should be made at the first,
4 of the alteration of religion established with-
4 in this realm of England ; neither would
'the said false traitors therein acknowledge
4 themselves to be authors, or actors, or de-
4 user* of the afore*aid most wicked and horri-

* ble treasons, until they had got sufficient
4 power and strength fur the assured execution
4 aod accomplishment of their said conspiracy
4 and treason : and that then they would avow
4 and justify the said most wicked and horrible
4 treasons, as actions that were in the number
•of those, qua mm laudantur, ni*i pcracta,

* which be not to be commended before they
4 bt done : but by the said feigned and traitor-
4ous proclamation they would publish, That
4 all and singular abuses and grievances within
4 this realm of England, should, for satisfying
4 of the people, be reformed. And that as well
'fertile better concealing, as for the more cf-

* factual accomplishing of the said horrible
'tnasons, as well tlie said Thomas Whiter,
'Gnj Fawkes, Robert Keyes, and Thomas
'Bales, as the said Robert Cat e- by, Thomas
'Percy, John Wright, Christ. Wright, and
4 Francis Treshaiu, by the traitorous advice and
'procurement of the said Henry Garnet, Os-
1 wald Tesmond, John Gcrrard, and other Je-
4 tuiis, traitorously did further conclude and
1 »?*eet that as well the said Thomas Winter,
4 Guy Fawke<i, Robert Keyes, and 'I nomas
'Bat/-, as the said Robert Catesby, Thomas
'Perry, John Wright, Christ. Wright, and
1 Francis Trcslinm, thereupon severally and
1 traitorously should receive several corporal
'Oaths upon the holy Evangelists, and the Sa-
' crament of the Eucharist, That they the
'treasons aforesaid would traitorously conceal
1 tad keep secret, and would not reveal them,
'directly or indirectly, by words or circum-
'jtances, nor ever would desist from the cxe-
' cation and final accomplishment of the said
1 treasons, without the cooseut of some three

VOL. II.

1000..— in the Gunpowder- Plot. [102

4 of the aforesaid false traitors first in that be-
half traitorously had: And that thereupon as
well the said Thomas Winter, Guy Fawkes,
Robert Keyes, and Thomas Bates, as the said
Robert Catesby, Thomas Percy, John Wrrighr,
Christ. Wright, and Francis Tresham, did
traitorously ta^e the said several corporal
Oaths severally, and did receive the Sacra-
ment of the Eucharist aforesaid, by the hands
of the said Henry Garnet,, John Gcrrard, Os-
wald Tesmond, and other Jesuits. And fur-
ther, that the said Thomas Winter, Guy
Fawkes, Robert Keyes, and Thomas BaUs,
together with the said Robert Catesby, Tho-
mas Percv, John Wright, Christ. Wright, and
Francis Ticshaih, by the like traitorous ad-
vice and counsel of the said Henry Garnet,
John Gerrard, Oswald Tesmond, and other
Jesuits, for the more effectual compassion and
iinal execution of the said treasons, did trai-
torously among themselves conclude and
agree to dig a certain mine under the said
House of Parliament, and there secretly,
under the said hou*c, to bestow and place a
great quantity of gunpowder ; and that ac-
cording to the said traitorous conclusion, the
said Thomas Winter, Guy Fawkes, Robert
Keyes, and Thomas Bates, together with the
said Robert Cntesby, Thomas Percy, John
Wright, and Christ. Wright, afterwards se-
cretly, not without great labour and difficulty,
did dig and make the said mine unto the
mid>t of the foundation of the wall of the said
House of Pat liaiiu m, the said foundation be-
ing of the thickness of three yards, with u
traitorous intent to bestow and place a great
quantity of gunpowder in the mine aforesaid,
so as afbrouid traitorously to be made for
the traitorous accomplishing of their traitor-
ous purposes aforesaid. And that the said
Thomas Winter, Guv Fawkes, Robert Keyes,
and Thomas Bates, together with the said Ro-
bert Catesby, Thomas Percy, John Wright,
and Christ. Wright, finding and perceiving
the said work to be of treat difficulty, by rea-
son of the hardness and thickness of the said
wail ; and understanding a certaiu cellar un-
der the said House of Parliament, and ad-
joining to a certain house of the said Thomas
Percy, then to be Icttcn to farm for a yearly
rent, the said Thomas Percv, bv the traitor-
ous procurement* as well of the said Henry
Garnet, Oswald Tesmond, John Gerrard, and
other Jesuits, Thomas Winter, Guy Fawkes,
Robert Keyes, and Thomas Bates, as of the
said Robert Catesby, John Wright, und Christ.
Wiight, traitorously did hire the cellar afore-
said for a certain yearly rent and term : and
then those traitors did remove twenty barrels
full of gunpowder nut of the said house of (ho
said Thunr.it Percv. and secretly nnd traitor-
ously did bestow and place them in the cellar
aforesaid, under the said House of Parlia-
ment, for the traitorous effecting of the trea-
son, and traitorous purposes aforesaid. And
that afterwards the said Henry Garnet, Os-
wald Tesmond, John Gerrard, und oiher Jo
M

Ift3] STATE TRIALS, 3 James I. \6oG.-Vie 'Dials qf the Conspirators [16*

4 suits, Thomas Winter, Guy Fawkes, Robert , • suits, Robert Winter, Thomas Winter, Kobert
' Keye% imd Thomas, Bate>, together \tith the j * Keyes, '1 homas Bates, John Grant, and Am-

' ' brose Rookwood, as of the said Root rt Cates-

* by, Thomas Percy, John Wright, Christopher

* \V right, and Francis Tresham, traitorously
4 bad prepared, and had upon bis person touch-

* wood and mutch, therewith traitorously to

* give tire to the several barrelsjiogsheads, and
1 quantities or' gunpowder aforesaid, at ihe time

* appointed for the execution of the said horri-

* ble treasons. And further, ihat afier the said
•horrible treasous, w. vc, by the great favour

* and mercy of Go?, in a wonderful maimer
' disco\er'd, not many hours before it should
1 have been executed, as well the s..ii! Henry

* Garnet, Oswald Tcsmond, John Gerrard,

* Robert Winter, Thomas Winder, Robert

* Keyes, Thomas Bates, John Giant, and Am-

•said Robert Catesby, Thomas Percy, John

* Wright, and Christ. Wright, traitorously did

* meet with Robert Winter, John Grant, and

* Ambrose Rook wood, and Francis Tie?»hani,

* esquires ; and traitorously did impart to the

* said Robert Winter, John Giant, Ambrose

* Roukftood, and Francis Tresham, the trea-
' sons, traitorous intentions und purposes afore-

* said ; and did require the said Robert Win-
' ter, John Grant, Ambrose Rookwood, and
4 J*'rancis Tresham, to join themselves as well
4 with the said Henry Garnet, Oswald Tes-

* mond, John Oerraid, Thomas Winter, Guy

* Fawkcs, Robert Keyes, and Th«<mas Rate*,
•as with the s;»id Ruben Catesbv, '1 liomas
' Percy, John Wright, and Christ. Wright, in

• the treasons, traitorous intentions "and pur- * brose Rookwood, as the said Robert Catesby,

• poses aforesaid ; and traitorously to provide * Thomas Percy, John Wright, and Curi-topher

• horse, armour, and oiher m ccssaries, for the

• better accomplishment and ejecting of the

• said treasons. To which traitorous motion

• and request, the said Robert Winter, Jwbn

• Grant, Ambrose Rookwood, and Francis

• Tresham, did traitorously yield their assents,
' and as well with the said Henry Garner, Os-

• wald Tesmond, John Gerrurd, Robert Win-

• ter, Thomas Winter, Guy Fawke*, Robert

• Keyes, and Thomas Bates, as with the said
' Robert Catesby, Thomas Percy, John Wright,

• Christ. Wright, and Francis Tresham, in the

• said treasons, traitorous intentions and pur-

• poses aforesaid, traitorously did adhere and

• unite themselves: And thereupon several

• corporal Oaths, in form abovesaid, traitorous-
' ly did take, and the Sacrament of t»ie Eucha-

• rist, by the hands of the said Jesuits did re-

• ceive, to such intent and purpose, as is afore-
' taid ; and horses, armour, and other necessa-
' ries for the better effecting of the said trea-

• son?, according to their traitorous assents

• aforesaid, traitorously did provide. And that
1 afterwards all the said false traitors did trai-
' torously provide, ai|d bring into the cellar
\ aforesaid ten other barrels full of gunpowder,
' newly bought, tearing le>t the former gun-

• powder, so as aforesaid bestowed and placed

• there, was become dnnkish ; and the said

• several quantities of gunpowder aforesaid,

• with billet* aitd faggots, lest they should be

• spied, secretly and traitorously did cover.

• And that afterwards the said lidac traitors

• traitorously provided, mid brought into the
1 cellar aforesaid, four hogshead* full of gunpow-

• dcr, and laid divers great iron bars and >kuks

* Wright, traitorously -did lly and withdraw

* themselves, to the intent traitorously to stir

• up and procure such popish persons, as they
( could, t ) join with tt'cm in actual, publick,

* and open rebellion ugaiusL our said sovereign

• lord the king ; and to that end did publish

• divers feigned and false rumours, that the
•papists throats should have been cut; and

• that thereupon divers papists were in arms,

* and in open, publick, and actual rt hellion

• against our said sovereign lord the king, in

* divers paits of this realm of Kngland/

To this Indictment they ail pleaded, Not
Guilty; and put themselves upon God and the
cojuntry.

Then did Sir Erlzrard Philips, knight, bis ma-
jesty's Serjeant at Law, open Uie Indictment to
this effect, as lblloweth :

The ma tier that is now to be offer'd to you
mv lord.-* the commissioners, and to the trial of
you the knights and gentlemen of the jury, is
matter of Treason; hut of such horror, and
monstrous nature, thnt before now, the tongue
of iu;mi never dehier'd ; the ear of man never
heard ; tin* heart of man jievcr conceited ; nor
th<* malice of hellish or earthly devil ever prac-
t:sed : For, if it be abominable to murder the
least ; if t > touch God's anointed be to oppose
themselves against God ; If (by blood) to sub-
vert prince , states and kingdoms, be hateful to
God and man, as all true Christians must ac-
knowledge : then, b >w much more than too too
monstrous ih.ill idl Christian htarts judge the
horror of this treason ; to murder and sub-
it rt such a king ; such a queen ; such a prince ;
such a progeny ; Mich a state ; such a gi#vern-

* upon the said four hogsheado, and the afore- merit, so compleu* and absolute, that God np-

* said other quantities of gunpowder : And the proves, the woihl admires, all true English '

* said quantities of gunpowder, bars, and stones, | hearts honour and reverence; the pope and his
'with billets and faggot*, lest they should be i discijlcs only envies anil maligns? — The pro-

* espy'd, secretly and tratorously did likewise . feeding wherein, h properly to he divided into

* cover. And that the said Guy i'awkes, after- i three general heads. 1. Matter of Declaration.
f wards, for a full and final accomplishment of! 2. Matter of Aggravation. 3. Matter of Pro-

* the said treasons, traitorous intentions and bat ion. Myself am limited to deal only with

* purposes aforesaid, by the traitorous procure- the Matter of Declaration, and that is contain'd
4 ment, as well of tin* said Henry Garnet, Os- within the compass of the Indictment ouly-

* wald Tesmond, John Gerrard, nod other jc- 1 For the other two, 1 am to leave to him te

I

105]

STATE TRIADS, 3 James I. lGO().~w the Gtrnpovder-Pbt.

[166

whose place it belongeth. The substance of
which declaration coosisteth in four parts. 1.
In the Persons and Qualities of the conspirators.
2. In the Matter conspired. 3. In the Mean
and Manntr of the Proceeding and Execution
of the Conspiracy. And Jthly, Of the End and
Purpose why it was so conspired.

As concerning the first, being the Persons;
ihcy were, Garnet. Gerrard, Tcsmoud, jevuiis
n»t then taken. Thomas Winter, Guy law keg,
Robert Keyes, Thomas Bates, Evernrd Digby,
Ambrose Rook wood, John Grant, Robert \V in-
ter, at the bar. Robert Catesby, Thomas
Percy, John Wright, Christopher \V right, slain
in rebellion. Frauds Tresham, lately dead.
All grounded Romanists and corrupted scholars
of so irreligious and traitorous a school. — As
concerning the second, which is the Matter
conspired ; it wa>, 1. To deprive the king of
hi* crown. 2. To murder the king, the queen,
and the prince. 3. To stir rebellion and sedi-
tion in th<» kingdom. 4. To bring a miserable
destruction amongst the subjects. 5. To change,
alter, and subvert the religion here established,
6. To ruinate the ttatc of the commonwealth,
and to bring in strangers to invade it. — As con-
cerning the third, which is the Mean and Man-
ner how to compass and execute the same ;
they did all conclude, 1. That the king, and
lift people (the papists excepted) wcrehercticks.

2. That they were all cursed, and excommu-
nicated by the pope. 3. That no hcretick
could be king. 4. That it was law'ful and me-
ritorious to kill and destroy the kinc, and all
the said hercticks. — The mean to effect it, they
concluded to be, that, 1. The king, the queen,
the prince, thv lords spiritual and temporal,
rte knights and bin-Leases of the parliament
th'<u!d be blown up wjth powder. 2. Th.it the
whole royal issue male should be destroyed.

3. That they would take into their custody
Liiznbeth and Mary the king's daughter?, and
proclaim the lady Elizabeth queen. 4. That
tiie? should feign a Proclamation in the name
of Elizabeth, in which no mention should
W made of alteration of religion, nor that
Aff were parties to the treason, until they
nad raised power to perform the same ; and
tfcen to proclaim, all grievances in the king-
dom should be reformed. — That they also took
«Terol oaths, and received the sacrament;
for, for secrecy ; secondly for prosecution ;
except they were discharged thereof by three
of them. — That after the destruction of the
king, the queen, the prince, the royal issue
vale, the lords spiritual and temporal, the
knights and burge?-ses, they should notify the
»me to foreign states ; and thereupon sir Ed-
mand Bay nam, an attainted person of treason,
find styling himself prime of the damned crew,
should be sent and make the same known to
tbe pope, and crave his aid : an embassador
fit both for the message und persons, to be sent
betwixt the pope and the devil. — Tl\at the

rirliament being prorogued till the 7th of
eb. they in December made u mine under the
house of parliament) purposing to place their

powder there ; but the parliament being then
further adjourned till the 3d of October, they
in Tent following hired the vault, and placed
therein 20 barrels of powder. — That they took
to them, Robert Winter, Grant, and Rook-
wood, gi\ing them the oaths and sacrament as
aforesaid, as to provide munition. — July 20.
They laid in ten barrels more of powder, lay-
ing upon them divers great bars of iron, and
pieces of timher, and great massy stones, and
covered the same with faggots, &c. — Septem-
ber 20. They laid iu more, 4 hogsheads of
powder, with other stores and bars of iron
thereupon. — Nov. 4. (The parliament being
prorogued to the 5th) at 11 a clock at night,
Fawkes had prepared, by the procurement of.
the resr, touchwood and match, to give fire to
the powder the next day. — That the Treason
being miraculously discovered, they put them-
selves, and procured others to enter, into open
Rebellion : and cave out most untruly, it was
for that the Papists throats were to be cut.

Attorney General. _ (Sir Edward Coke.) It
appeareth to your lordships, and the re*t ot this
most honourable and grave assembly, even x
by that which Mr. Serjeant hath already open-
ed, that these are the greatest treasons that
ever were plotted in England, and concern the
greatest king that ever wai of England. Rut
when this assembly shall fuither hear, and see
discovered 'the roots and branches of the same,
not hitherto published, they will say indeed,
Quis hac posteris sic narrate patent, ut facta
non Jicta ease videatitur ? That when the'.e
things shall he related to posterity, they will
be reputed matters feigned, not clone. And
therefore in this so great a cause, upon the
carriage and even*, whereof the eye of all
Christendom is at this dav bent : I shall desire
that 1 may with your patience be somewhat
more copious, and not so succinct, as my usual
manner hath been; and yet will I be no longer
than the very matter itself shall necessarily re-
quire. But before I enter into the particular
narration of this cause, I hold it fit to give sa-
tisfaction to some, and those well affected
amongst us, who have not only marvelled, hut
grieved, that no speedier expedition hath been
used in these proceedings, considering the mon-
strousness and continual horror of this so 'des-
perate a cause. — 1. It is ordo nature, agree-
able to the order of nature, that things of great
weight and magnitude should slowly proceed,
according to that of the poet, * Tarda solet
magnis rebus ndisse lines.* And surely of
these things we may truly say, ' Nunquam ante
dies nostros talia accidcrunt ;' neither hath the
eye of man seen, nor the ear of man heard the
like things to these. — 2. Veritas tewporit frfia,
Truth is the daughter of time ; especially in
this case, wherein by timely and often exami-
nations, 1. Matters of greatest moment have
been lately found out. 2. Some known often-
ders and those capital, but lat^ltf, apprehended.
3. Sundry of the principal arch-traitors before
unknown, now manifested, as the Jesuits. 4.
Heretical, treasonable and damnable book*

,1,07] STATE TRIALS, 3 James I. 1GOG.— The Trials of the Conspirators [16$

Treasurer, or any justice of the one bench or
other; justices of assize, or any other judge
mentioned in the statute of 25 Edw. 3. sitting
in their judicial places and exercising their
offices." And the reason is, for that every
judge so sitting by the king's authority, repre-
sented the majesty and person of the Ling ;
and therefore it is crimen lata.mnjcstatis, to
kill him', the king being always in judgment of
law present in court. But in I he high court of
pniliameut, every man by virtue of the king'*
authority, by writ under the great seal, hath a
judicial place; and so consequently the killing
of every of them had been a several Treason,
and crimen l<e$a wajcttutis. Besides that to
their treasons were added open rebellion, bur-
glary, robbery, horse-stealiug, &c. So that
this offence is such, as no man can express it,
no example pattern it, no measure contain it.
— Concerning foreign princes ; there was here
a protestation made for the clearing of them
from all imputation and ai^persion whatsoever.
— First, For that whilst kingdoms stood in hos-
tility, hostile actions arc holden honourable
and just. Secondly, It is not the king's Ser-
jeant, attorney, or sollicitor, that in any sort
touch or mention them : for we know that great
princes and personages are reverently and re-
spectfully to be spoken of; and that there is
lex in iermone tcnenda. But it is Fawkes,
Winter, and the rest of the offenders, that
have confessed so much as hath been said :
and therefore the king's counsel learned doth
but repeat the offender's confusion, and charge
or touch no other person. They have also
slandered unjustly our great master king James,
which we only repeat, to shew the wickedness
and malice of the offenders. Thirdly, So much
as is said concerning foreign princes, is so wo-
ven into the matter of the charge of these of-
fenders, as it cannot be severed, or singled
from the rest of the matter ; so as it is inevi-
table, and cannot be pretermitted. — Now as
this I'uwder-T reason is in itself prodigious and
unnatural, so it is in the conception and birth

lately found out; one of equivocation, and
another, * De officio Principis Christiaui,' of
Francis Tresham's. — 3. There have been al-
ready twenty aud three several days spent in
Examinations. — 4. We should otherwise ha\t
hanged a man unaltainted, for Guy Fawkes
^passed for a time under the name of John
Johnson : so that if by that name greater ex»
pedition had been made, and he banged, though
we had not missed of the man, yet the pro-
ceeding would not have been so orderly or jus-
tifiable.— 5. The king out of his wisdom and
great moderation, was pleased to appoint this
trial in time of assembly in parliament, for
that it concerned especially those of the parlia-
ment.— Now touching the offences themselves,
they are so exorbitant and transcendent, and
aggregated of so many bloody and fearful
crimes, us they cannot be aggravated by any
iuferenee, argument or circumstance whatso-
ever ; and that in three respects : First, Be-
cause this offence is prima impressionis, and
therefore sine nomine, without any name which
might be udaauatum, sufficient to express it,
given by any legist, that ever made or writ of
any law?. For the highest treason that all they
could imagine, they called it only crimen laste
tnajestutis, the violating of the majesty of the
prince. But this treason doth want an apt
name, as tending not only to the hint, but to
the death of the king, and not the death
of the king only, but of his whole king-
dom, Non Regis scd llegni, that is, to the
destruction and dissolution of the frame and
fabrick of this antient, famous, and ever-flou-
rishing monarchy ; even the deletion of our
whole name and nation : ' And therefore hold
' not thy tongue, O God, keep not still silence,
' refrain not thyself, O God ; for so lo thine

* enemies make a murmuring, and they that
' hate thee have lift up their heads: They have

* said, Come, and let us root them out, that

* they be no more a people, and that the name
f of Israel may be no more in remembrance.'
Psal. lxxxiii. 1 — o. — Secondly, It is sine
exemplo, beyond all examples, whether in fact
or fiction, even of the tragick poets, who did
beat their wits to represent the most fearful
and horrible murders. — Thirdly, It is sine w/o-
do, without all measure or >lint of iniquity;
like a mathematical line, which is, divisibilis in
$cmpcr daiaibilia, infinitely divisible — It is
treason to imagine or intend the death of the
kin::, queen, or prince. — For treason is like
n tree whose root is full of poison, and lieth
secret and hid within the earth, resembling the
imagination of the heutt of man, which is so
nee ret as God only kuowcth it. Now the wis-
dom of the law provide! I Nor the blading aud
nipping, both of the leave-, blossoms, and buds
which proceed from this root of Treaxm; either
l»v wokU, which an* like to leaves, or bv some
uveil act, which may be rocmbled to buds or
|ilov»om», before it cometh to such fimt and
ri|»f uevi, a-* would bring utter deduction and
dcio latum upon the whole state. — It is hke-
him Tnwoii to kill Uie lord Chancellor, lord

most monstrous, as arising out of the .dead
ashes of former Treasons. For it had three
roots, all planted and watered by Jesuits, and
English Romish Catholicks : the first root in
Englaud, in December and March ; the second
in Flanders, in June ; the third in Spain, in
July. In England it had two branches, one in
December was twelve months before the death
of the late queen of blessed memory ; another
in Mai ch wherein she died. — First in Decem-
ber, a. i). loUl, do Henry (Jarnet superior of
the Jesuits in England, Kobt. Testnond, Jesuit,
ltobt. (.'atesby (who was bono subacto ct vcr-
$uto ingenioet profunda pcrjidia) together with
Francis Troham and others, in the names,
and for the behalf of all the English Komish
Catholicks, iinploy Thomas Winter turn Spain,
hi for i he general pood of the Koin'feh Catho-
lick cau»e ; and by him doth Gainet write his
letters to father Crcswell, jfsuit, residing in
Spain, in that behalf. With Thos. Winter doth
Tuinoud, alius Grcwieway the jctuit, go as au

I

IG9]

STATE TRIALS, 3 James I. 1600.— m tla Gunpowder-Plot.

[170

associate and confederate in tjiat conspiracy.
The message (which was principally committed
unto the said Winter) was, that he should
make a proposition and request to the king of
Spain, in the behalf and names of the English
Catholicks, That the king would send an army
hither into England, and that the forces of
the Catholicks in England should he prepared
to join with him, and do him service. And
further, that he should move the king ot* Spain
to bestow some pensions here in England,
tpon sundry persons Catholicks, and devoted
to his service: and moreover, to give adver-
feemeut, Unit the said king of Spain, making
sse of the general discontentment that yoong
gentlemen and soldiei6 were in, might no
doubt, by relieving their necessities, have them
all at his devotion. — And because that in all
attempts upon England, the greatest difficulty
was ever found to be the transportation of
hortes ; the Catholicks in England would as-
sure the king of Spain to have always in rea-
diness lor his use and service, . 1500 or 2000
borse*, against any occasion or enter prize.
Now Thomas Winter undertaking this negotia-
tion, and with Tesmond the Jesuit coming into
Spain, by means of father Creswell the legier
Jesuit there, as hath been said, had readily
tpeech with Don Pedro Francesa second se-
cretary of state, to whom he imparted his mes-
Hge, as also to the duke of Lerma ; who as-
sured him, that it would be an office very
grateful to his mnster, and that it should not
want his best furtherance. — Concerning the
place for landing of the king of Spain's army,
which from the English Romish Catholicks he
desired might be sent to invade the land ; it
wa* resolved, That if the army were great,
then Essex and Kent were judged fittest, (where
DMe by the way, who was then lord Warden
"f the Cinque Ports) : if the army were small,
awl trusted upon succour in England, then
Miliurd-haven was thought more convenient. —
Now there being at that time hostility betwixt
Uth kingdoms, the king of Spain willingly em-
Wed the motion, saying, that he took the
a*»:ige from the Catholicks very kindly, and
that in all things he would respect them with
as great care as his proper CnstiliatK. But
(** his further answer, and full dispatch, Thos.
Winter was appointed to attend the progress.
In the end whereof, being in summer time,
count [Miranda gave him this answer in the
We If of his master, That the king would be-
llow 100,000 crowns to ih it u»c, half to he
paid that year, and tho rest the next spring
following ; and withal required that we should
he as good as our promise, for the next soring
Le meant to be with us, and set foot in England.
Ai-.l lastly, he desired on the king's* behalf, of
Winter, that he might have certain advertise-
ment and intelligence, if so it should in the
Bean time happen that the queen did die.
Tho*. Winter laden with these hopes, returns
into England about a month before Christians,
and delivered answer of all that had passed, to
iitory Garnet, Robert Catesby, and Francis

Tresham. But soon after set that glorious
light, her majesty died : ' Mira cano ; Sol oc-
' cubuir, Nox nulla secuta est/ — Presently
after whose death was Christ. Wright, another
messenger, sent over into Spain by Garnet,
(who likewise did write by him to Creswell,
for the furtherance of the negociation) Catesby
and Tresham, in the name and behalf of all
the Romish Catholicks in England ; as well to
carry news of her majesty's death, as also to
continue the aforesaid negotiation for an inva-
sion and pensions, which by Tho. Winter had
before been dealt in. And in the Spanish
court, about two months after his arrival there,
doth • Christopher Wright meet with Guy
Fawkes ; who upon the 22nd of June was em-
ployed out of Flanders from Brussels by sir
William* Stanley, Hugh Owen,, (whose linger
hath been in every treason which hath been
of late years detected) and Baldwyu the legier
Jesuit in Flanders ; from whom likewise the
said Fawkes carried letters to Cresswell in
Spain, for the countenancing and furtherance
of his affairs. — Now the end of Fawkes's im-
ployment was, to give advertisement to the
king of Spain, how the king of England was
like to proceed rigorously with the Catholicks,
and to run the same course which the late
queen did ; and withal to intreat that it would
please him to send an army into England to
Milford- haven, where the Romish Catholicks
would be ready to assist him ; and then the
forces that should be transported in Spinola's
G allies, should be landed where thev could
most conveniently. And these their several
messages did Christopher Wright and Guy
Fawkes in the end intimate and propound to
the king of Spain. But the king as then very
honourably answered them both, that he would
not in any wise further listen to any such mo-
tion, as having before dispatched an embassy
into England, to treat concerning peace.
Therefore this course by foreign forces failing,
they fell to the Powder-plot, Catesby and
Tresham being in at all ; in the treason of the
earl of Essex, ih the treason of Watson and
Clarke seminary priests, and also in this of the
Jesuit*; such a greedy appetite had they to
pructi.se against the state.

The test of that which Mr. Attorney then
spake continuedly, was by himself divided into

i three general parrs. The first containing cer-
tain Considerations concerning this Treason.
The second Observations about the same. The

! third a Comparison of this Treason of the
Jesuits, with that of the seminary priests, and
th.it other of Raleigh and others.

For the considerations concerning the Tow*
der-t reason, they were in number eight: that
is to say, 1. The persons by whom. 2. The
persons against whom. 3. The time when.
4. The place where. 5. The means. 6. The

j end. 7. 'Hie secret contriving. And lastly,
the admirable discovery thereof.

1. For the Persons olfeuding, or by whom,
they are of two sorls ; either of tho clergy, or
laity : and for each of them there is a several

171] STATE TRIALS, 3 J am es I. 1 606.— The Trials of the Conspirators [172

objection made. Touching those of the laity,
it is by sonic given out, that they are such men,
as admit just exception, cither desperate in
estate, or base, or not settled in their wits.;
audi as are sine rcltgiune, sine sede, sine fide,
sine re, et sine spe ; without religion, without
habitation, without credit, without means,
without hope. But (that no man, though
never so wicked, may he wronged) true it is,
they were gentlemen of good houses, of excel-
lent parts, howsoever most perniciously se-
duced, abused, corrupted, und jesuited, of
very competent fortune* and states. Besides
that Percy was of the house of Northumber-
land, sir William Stanly, who principally im-
ployed Fawkes into Spain, and John Talbot of
Grafton, who at the least is in case of mispri-
sion of high-treason, both of great and honour-
able families. Concerning those of the spiri-
tuality, it is likewise falsly laid, That there is
never a religious man in this action, lor I
never yet knew a treason without a Romish
priest ; but in this there are very many Jesuits,
who arc known to have dealt and passed
through the whole action : three of them are
lexers and statesmen, us Henry Garnet alias
Walley, the superior of the Jesuits, legier here
in England ; father Cresswell, Icgior Jesuit in
Spain, father Baldwyn legier in Flanders, as
Parsons at Rome ; besides their cursory men,
as Gerrard, Oswald, Tcsiuond, alius Greene-
way, Hammond, Hall, and other Jesuits. So
that the principal offender* are the seducing
Jesuits ; men that use the reverence of religion,
yea, even the most sacred and blessed name of
Jesus, as it mantle to cover their impiety,
blasphemy, treason and rebellion, and all man-
ner of wickedness; as by the help of Christ
shall be made most apparent to the plory of
God, and the honour of our religion. Con-
cerning this sect, their studies and practices
principally consist in two chl's, to wit, in depos-
ing of kings, end disponing of kingdoms : their
profession and doctrine is a religion of distinc-
tion*-, the greatest part of them being without
the text, and therefore in very deed, idle and
vain conceits of their own brains : not having
tnrmbra dividenlia, that is, all the nans of the
division warranted by the Word oi God ; mid
' ubi lei non distinguit, ncc nos distinguerc
' debemus.' And albeit that, princes hold their
crowns immediately of and from God, by right
of lawful succession and inheritance inherit by
royal blood; yet think these Jesuits with a
goose-quill, within four distinctions to remove
the crown from the head of any king christened,
and to deal with them, as the old Romans are
Wiid to have done with thttir viceroys, or petty
kings, who in effect were but lieutenants unto
them, to crown and uncrown them at their
pleasures. Neither so only, hut they will pro-
scribe and expose them to be butchered by
vassals, which is against their own canons, for
priests to meddle in cause of blood. And by
this means they would make the condition of a
king tar worse than that of the poorest crea-
ture that breathetb. First saith Simanca;

' rTseretici omncs ipso jure sunt excommuni-

* cati, et a communione ridel iura dins proscrip-
1 tionibusseparatietquotannis in ca?na Domini

* excommumcantur a Papa :' So then every
heretick stands and is reputed with them us
excommunicated and accursed, if not de facto,
yet dejure, in law and right, to all their intents
and purposes ; therefore may he be deposed,
proscribed -and murdered. I, but suppose be
be not a professed heretick, but deaketh re-
servedly, and keepeth his conscience to him-
self; how stands ne then ? Simanca answer*

* Quacri autew solet an hareticus occultns ei-
' conimunicatus sit ipso jure, et in alias etiam
4 pamas iucidat contra haereticos ' statutas f
' Cui quiestioni simpliciter jnrisperiti respon-
' dent, quodetsi haeresis occulta sit, nihilominus
' occultus hareticus incidit in illas paenas.'
Whether he be a known or a secret heretick,
all is one, they thunder out the tame judgment
and curse for both; whereas Christ saith,
' Nolite judicare,' judge not, which is, saith
Augustine, * Nolite judicare dc occultis,' of
those things which are secret. But suppose
that a prince thus accursed and deposed, will
eftsoons return and conform himself to their
Romish Church, shall he then be restored to
his state, and again receive his kingdom?
Nothing less : for saith Simanca, ' Si reges aut

* alii principes Christiuni lacti sint harretici,

* protinus subjecti et vassali ab eorum dominio

* liberantur ; nee jus hoc recuperabunt, quam-
' \is postea reconcilientur ecclesia?.' O bur,
' sancta mater e colesia nunqiiam claudit gremi-
(um redcunti;' our holy'mother the church
never shuts her bosom to any convert. It is
true, say they, but with a distinction, quoad
an'uimm : therefore so he may, and shall be re-
stored ; that is, spiritually, in respect of hi*
soul's health. Quoad annn/tm, he shall again
be taken into the holy church ; but not quoad
rcgnuw, in respect of hi* kingdom, or state
temporal, he must not be restored ; the reason
is, because all hold only thus far, * Modo non
' sir ad damnum ecclesiuc,' so tint the church
receive thereby no detriment. I, but suppose
that such an unhappy deposed prince have a
son, or lawful and ii»lit heir, and he also not
to be touched or spotted with his father's
crime, shall not he at least succeed, and be
invested into that princely estate? Neither
will this down uith them : heresy is a leprosy,
and hereditary disease: * Et ex leprosis pa-
' rentihus loprosi generantur filii ;' ' Of leprous
parents, come leprous children.' So that saith
Simanca, * Propter -haercsiui regis, non solum
' rex regno privatur, bed ct ejus filii a regni sue-
4 cessionc pelluntur, ut nostcr lupus' (who is
indeed, ' Vir secundum notnen ejus,* a wolf
as well in nature as name) ' luculcnter probbt.9
Now if a man doubt whom the* here mean by
an heretick, Crcswell in his book called Philo-
pater, gives a plain resolution ; * ltcgnandi
'jus amittit' (saith he) 'qui rcligionem Ro-
manam deserit,' he is the heretick «e speak
of; even whosoever forsakes the religion of
the Church of Rome! he is accursed, deprived}

^Adl^^.

173]

STATE TRIALS, 3 James I. 1600.— in the Gunpvivder-Plot.

[17*

proscribed, never to be absolved but by the .
pope himself, never to be restored either in
buuself, or his posterity.

One place amongst many out of Creswell's j
PUlopater, shull serve to give a taste of the je- J
suitical spirits and doctrine; which is, sect. 2.
page 109. * Hinc ctiam infert univcrsu theolo-

* gorum ac jurisconsultorum ecclcsiasticorum
' scbola (et est cerium et de fide) rmemcuuque
1 pnncipeiii Christiunum, si a lteligione Catho-
' Ika manifesto dillcxcrit, et alios avocare volu-
' tnt, excidcre statim omui p> test ate ac digni-
4 tile, ex ipsa vi juris tuiu huinani turn divini,
1 iiocque ant edict am sententiarn supreini pasto-
1 ns ac judicis contra ipsuin prolatam, et sub-

* ditos quoscunque liberos esse ab omni jura-

* meiui o bug at ion e, quod deobedientia tanquain

* pnncipi legititno prastitissent ; posseque et
' dehere (si vires habeant) istiusmodi hominem
' taocjuuin apostatam, haereticum, ac Christi Do-
' mini dt-sertorem, et reipub. suae inimicum bos-

* teuiuue ex hominum Christianorum dommatu
' ejicere, ne alio-* inticiat, vel suo exemplo aut
4 impcrio a fide avert at. Atquc hate certa, de-
'finita et indubitata virorum doctissimorum
'seutentia/ That is, this inference also doth
tie whole school both of divines and lawyers
make, (and it is a position certain, and to be
UiMloubtedly believed) that if any Christian
prince whatsoever, shall manifestly turn from
the Catholic religion, and desire or seek to re-
claim otlier men from the same, he presently
tklieih from all princely power and dignity; and
that also by virtue and force of the law itself,
U>di drtine and human, even before any sen-
tence pronounced against him by the supreme
foator and judge. And that his subjects, of
whnt estate or condition soever, are freed from
til bond uf oa:h of allegiance, which at any time
uVv hod made unto him as to their lawful
prince. Nay, that they both may and ought,
proTided they bote competent strength and
free, cast out such a man from bearing" rule
QoDgst Christians, as an apostate, an heretic,
% backslider and revolt er from our Lord Christ,
udau enemy to his own state and common-
»eiith, Jert pcrluip* he might infect others, or
h\ Lis example or command turn them from
t.c faith. And this is the certain, resolute, and
wj<mbtcd judgment of the best learned men.
But Tresham in Ins hook, De Ollicio Prmcipis
CL'Utiani, goeth beyond all the rest ; for he
frluialy concluueth and determineth, that if any
prince shall but favour, or shew countenance to
«i heretick, he presently h^cth his kingdom.
hi hi) fifth chapter, he propounded this pro-
Ueni, ' An aliqua possit secundum conscien-

* tuuii subditis esse ratio, cur legitimo sno regi
■ Ulluuu sine scclere movcant ?' Whether there
may be any lawful cause, justifiable in con-
tcieiice, for subjects to take arms without sin,
agajnst their lawful prince and sovereign ? The
resolution is, ' Si priiiccps hxreticus sit et obsti-
1 uau- ac pertinacitcr intolcrahiiis, summi pa»-

* torn rirvina potestate deponatur, et uliud ca-
1 put conslitoator, cui subditi.se jungant, et le-
1 gtUiao online et authoritate ty rami idem amo-

' veant. Princcps indulgendo hareticos uon
* solum Deum oilendit, sed perdit et regnum et
' gentem/ Their conclusion therefore is, that
for heresy, as above is understood, a prince is
to be deposed, and his kingdom bestowed by the
pope at pleasure; and that the people, upon
pain of damnation, are to take part with him
whom the pope shall so constitute over them.
And thus whilst they imagine with the wings of
their light-feathered distinctions to mount above
the clouds and level of vulgar conceits, they
desperately fall into a sea of gross absurdities,
blasphemy, and impiety. And surely the Je-
suits were so far in gaged in this treason, as that
some of them stick not to say, that if it should
miscarry, tlmt they were utterly undone, and
that it would overthrow the state of the whole
society of the Jesuits : And I pray God that in
this, they may prove true prophet*, that they
may become like the Order of Templarii, so
called for that they kept near the sepulc hrc at
Jerusalem, who were by a general and universal
edict in one day throughout Christendom quite
extinguished, as being ordo impictutis, an order
of impiety. * And so from all sedition and
' privy conspiracy, from all false doctrine and
1 heresy, from hardness of heart, and contempt
' of thy word and commandment, Good Lord,
' deliver us/ '1 heir protestations and pretences,
are to win souls to God ; their proofs weak,
light, and of no value ; their conclusions false,
damnable, and damned heresies : The first
mentioneth God, the second savoureth of weak
and frail man, the last of the devil ; and their
practice easily appearcth out of the dealing of
their holy father.

Henry 3rd of France for killing a cardinal was
excommunicated, and after murdered by James
Clement a monk : That f;»ct doth Nxtus Quin-
tus then pope, instead of orderly censuring
thereof, not only approve, but commend in a
long consistory oration. ' '1 hat a monk, a re-
' ligious man/ with he, ( hath slain the unhappy
' French king, in the midst of his host, it is rurum
1 insigne, monoruhilefocinns, a rare, a notable,
' and a memorable act : yea further, it is J acinut
s non sine Dei optimi mas i mi particulars provi-

* dentia et disposition?, \c. A fact done not
' without the special providi nee and nppoint-
( meat of our good God, and the su«ge*tion and

* assistance ot his holy spirit; \ea, a far greater

* work than was the slaying of HolufVrnes by
' holy Judith/ Vcrtu nowwhus ficturn ocvide-
rat, A true monk had killed the fclse monk ;
lor that, as was reported; Henry 3 sometimes

, would use that habit when he went in proces-
sion : and for France, even that part thereof
which enteituinelh the popish religion, yet never
could of ancient time brook this usurped autho-
rity of the «ee of Rome, nainelv, that the pope
had power to excommunicate kings, and absolve
subjects from their oath of allegiance : w Inch po-
sition is x) directly opposite to all the canons of
the church of France, and to all the decree* of the
king's parliament there, as that the very body of
Sorhonne. and the whole university at Paris,
condemned it as a most schi»inatical, pestiknt9

175 J STATE TRIALS, 3 James I. 1G0G.— The Trials of the Conspirators [170

and pernicious doctrine of the Jesuits; as may
appear in a treatise made to the French king,
aud set out 1602, intitled, * Le franc ^Discours/
But to return to the Jesuits, Catesby was re-
solved by the Jesuits, that the fact was both
lawful and meritorious ; and herewith he per-
suaded and settled the rest, as they seemed to
make doubt.

Concerning Thomas Bates, wlio was Cates-

was resolved, and that by good authority, as
Cuming from the Superior of the Jesuits, that in
conscience it miglrt be done, yea. tho* it were
with the destruction of many innocent**, rather
than the action should quail e. Likewise fa-
ther Hammond absolved all the traitors at
Robert Winter's house, upon Thursday afier
the discovery of the Plot, they being then in
open rebellion : And therefore, * Hos O Hex

bv's man, as he was wound into this treason by magne caveto :' and let all kings take heed, how
his master, so was he resolved, when he doubt- they either favour or give allowance or conni-
ed of the lawfulness thereof, by the doctrine of vance unto them

the Jesuits. For the manner, it was after this
sort: Catesby noting that his man observ'd
him extraordinarily, as suspecting somewhat of
that which he the said Catesby went about,
Called him to him at his lodging iti Fuddle-
wharf; and in the presence of Thomas Winter,
asked him what he thought the business was
they went about, for that he of late had so sus-
piciously and strangely marked them. Bates
answerM, that he thought they went about some
dangerous matter, whatsoever the particular
were : whereupon they sisked him again what
he thought the business might be ; and he an-
swered that he thought they intended some
dangerous mutter about the parliament-house,
because he had been stmt to get a lodging near
unto that place. Then did they make the said
Bates take an oath to be secret in the action ;
which being taken by him, they then told him
that it was true, that they were to execute a
great matter ; namely, to lay jnnvder under the
parliament-house to blow it up. Then they
also told him that he was to receive the sacra-
ment for the more assurance, and thereupon he
went to confession, to the said Tesmond the
Jesuit: and in his confession told him, that
he was to conceal a very dangerous piece of
work, that his master Catesby and Thomas
Winter had imparted unto liim, aud said he
much feared the matter to be utterly unlawful,
and therefure therein desired the counsel of the
Jesuit ; and revealed unto him/the whole in-
tent and purpose of blowing up the parliameiiL-
houbc upon the first day of the assembly; at
what time the king, tin? queen, the prince, the
lords spiritual and temporal, the judges the
knights, citizens aud burgesses, should all have
been there con vented and met together. But
the Jesuit being a confederate therein before,

•*4Q, The second Consideration respecteth the
Persons against whom this treason was intend-
ed ; which are, 1. The king, who is God's
anointed. Nay, it hath pleased God to commu-
nicate unto him his own name ; ' Dixi, Dii est is/
not substantially or essentially so, neither yet
on the other side Uxurpativt, by unjust usur-
pation, as the devil and the pope; but Potesta*
tivt, as having his power derived from God
within his territories. 2. Their natural liege
lord, and dread sovereign, whose just interest
and title to this crown may be drawn from be-
fore the conquest ; and if he were not a king
by descent, yet deserved he to be made one
for his rare and excellent endowments aud or-
naments both of body and mind. Look into his
true and constant religion and piety, his jus-
tice, his learning above all kings christened, his
acumen, his judgment, his memory; and you
will say that he is indeed, ' Solus prateritis
* major, meliorque futuris.' But because I
cannot speak what I would, I will forbear to
speak what I could. Also against the queen, a
most gracious and graceful lady, a most virtu-
ous, fruitful, and blessed vine, who hath hap-
pily brought forth such olive-branches, as that
' iu benedict ione erit meinoria ejus,' her me-
mory shall be blessed of all our posterity. Theu
against the royal issue male, next under God,
and alter our sovereign, the future hope, com-
fort, joy, and life of our state. And as for pre-
serving of the good lady ftli/abcth the king's
daughter, it should only have been for a time to
have served for their purposes, as being thought
a fit project to keep others in appetite for their
own further advantage; and then God know-
eth what would have become of her. To con-
clude, against all the most honourable and pru-
dent counsellors, aud all the true-hearted and

resolved and incoura^ed him in the action; worthy nobles, all the reverend and learned

and said that he should be secret in that which
his master had imparted unto him, for that it
was for a good cause. Adding moreover, that
it was not dangerous unto him, nor any offence
to conceal it : and thereupon the Jesuit gave
him absolution, and Bates received the sacra-
ment of him, in the company of his master Ro-

bishops, all the grave judges and sages of the
law, all the principal knights, gentry, citizens
and burgesses of parliament, the llower of the
whole realm. Hnrret animus, 1 tremble even
to think of it: Miserable desolation ! no king,
no queen, no prince, no h-»ue male, no counsel-
lors of state ; no nobility, no bishops, no

bert Cutfesbv aud Thomas Winter. Also when » indues ! () barbarous and more than Scythian

Jtookwood in the presence of sundry of the trai-
tors, having first received the oath of secrecy,
had by Catesby imparted unto him the Plot of
blowing up the king and state ; the said Kook-
Wood being greatly amazed thereat, answered,
that it was a matter of conscience to take away
to much blood : but Catesby replied, that he

or Thracian cruelty ! No mantle of holiness can
cover it, no pretence of n. ligion can excuse it,
no shadow of good intention can extenuate it;
God and heaven condemn ir, man and earth
detest it, the offenders themselves were asham-
ed of it ; wicked people exclaim against it, and
the souls of ail Una Christian subjects abhor it I

177]

STATE TRIALS, 3 James I. 1606.— m the Gunpowder Plot.

[178

miserable, but jet sudden had their ends been,
who should have died in that fiery tempest, and
storm f gunpowder. ' Bui more miserable had
they been that had escaped ; and what horrible
effects the blowing up of so much powder and
stuff would have wrought, not only amongst men
and beasts, but even upon insensible creatures,
churches, and houses, and all places near ad-
joining; you who ba\e been martial men best
know, for my self, ' Vox faucibus hsret :*
fo that the king may say with Che kingly pro-
phet David ; * O Lord, the proud are risen
'against me, and the congregation, even syna-
' 2PPh tne synagogue of naughty men have

* sought after my soul, and have not set thee be-
' fore their eyes/ Psal. lxxxvi. 14. ' The proud
' have laid a snare for ine, and spread a net

* abroad, yea, and set traps in my way/ Psal.
cd. 5. ' But let the ungodly lull into their
'own nets together, and let me ever escape

* them/ Psalm/ cxli. 11. We may say, ' If the
'Lord himself had not been on our side; yea,
4 if the Lord himself had not been on our side,

* irlien men rose up against us, they had swal-
1 Wed us up quick, when they were so wrath-
' fully displeased at us :. but praised be the

* Lord, which hath uot given us over for a prey
' unto i heir teeth. Out soul is escaped even
4 a» a biid not of the snare of the fjwlcr, the
' ?n:ire is broken, and we are delivered ; our
1 help staudcth in the name of the Lord which

* had; made heaven and earth/ Psaiin exxiv.

3. 'Ilic third consideration respects the 'Jinie
«hen this* Treason was conspired ; wherein
cute tlu.t it was primo Ji'cobi, even at that time
then his majesty used so great lenity towards
Recusants, in that by the space of a whole
jt.ir and four months, he took no pennlty by
itstute of them. So far was his majesty from
KTerity, liiat besides the benefit and grace be-
fore specified, he also honoured all alike with
advancement and favours; and all this was
continued uutil the priests Treason by Watson
*ad Clarke. But as there is wiser ic or dia jju-
tiev, so is there likewise crud> lit as parcens :
w* they were not only by this not reclaimed
fa (as plainly appearethj became far worse.
Ait, the Kuinish Catholicks did at that very
uae certify that it was very like, the king would
deal rigorously with them, and the same do
(be* traitors now pretend, as the chiefest mo-
cvt; wlicreas indeed thty had Treason on foot
aauDftt the king, before they saw his face in
Eo^aml : neither afterwards, for all the lenity
be med towards them, would any whit desist or
ftlent from their wicked attempts. Nay. (that
■tich coineth next to be remembered in this
part of their arraignment) they would pick
Gflttlje time of parliament for the execution of
their hideous Treasons, w heroin the flower of
tie land being assembled, for the honour of
f'r*l, the pood of his Church and this Common-
*t-alth ; they might as it were with one blow,
but •round/ but kill and destroy the whole
Mte: •«► that with these men, impuwta* conti-
**»« ajffrtum hibuit peccandi, lenity having
(flee bred a hop* of impunity, begat uot only

VOL. II.

insolency, but impenitency and increase of
sin.

4. We are to consider the Place, which was
the sacred senate, the house of parliament.
And why there ? For that, say they, unjust laws
had formerly been there made against catho-
licks: therefore that was the fittest place of all
others to revenue it, and to do justice in. If
any ask who should have executed this their
justice, it was justice Fawkes, a man like
enough to do according to his name. If by
what law they meant to proceed ; it was gun-
powder-law, "fit for justices of hell. But con-
cerning those laws which they so calumniate as
unjust, it *hail in few words plainly appear,
that they were of the greatest both moderation
and equity that ever were any. T\»r from the
year 1 Elizabeth, unto 11, all papists came to
our church and service without scruple I my-
self have seen Cornwallis, Bcddiu^field, and
others at church : so that then for the space of
10 years, they made no conscience nor doubt
to communicate with us in prayer. But when
once the Bull of Pope Pius Quinrus was come
and published, wherein the queen was accursed
and deposed, and her subjects discharged of
their ohedience and oath, yea cursed if they did
obey her ; then did they all forthwith refrain
the Church, then would they have no more
society with us in prayer : so that recusancy in
them is not for religion, but in au acknowledg-
ment of tho pope's power, and a plain mani-
festation what their judgment is concerning the
right of the prince in respect of regal power
oiul place. Two years after, viz. 13 Elizabeth,
was there a law made against the bringing in
of Bulls, &c. Anno 18, catr.e Mayne a priest
to move sedition. Anno '20, came Campion
the hrst. Jesuit, who was sent lo make a party
here in England, for the execution of the former
Bull: tht u follow treasonable books. Anno
'.'o Elizabeth, after so many years sufferance,
there were laws made against recusants and se-
ditious books : the penalty or sanction for
recusancy, was not loss of life, or limb, or
whole stale, but only a pecuniary mulct and
penalty, and that also until they would submit
and conform themselves, and again come to
Church, as they had clone for 10 years before
the Hull. And yet afterwards the Jesuits and
Romish prie^th both coming daily into, and
swarming within the icalm, and infusing conti-
nually this poison into the subjects hearts, that
by reason of the said Hull of Pius Quiulu.-, her
majesty stood excommunicated and deprived
of her kiniiflom, and that her subjects were
discharged i-f all obedience to her, endeavour-
ing hy all means to draw them from (heir duty
and allegiance to her majesty, and to reconcile
tiiem to the Church of Kome ; then 27 Eliz.
a law was made, that it should be Treason for
any (not to be a priest and an Englishman,
bom the queen's natural subject, but for any)
being so bom her subject, and made a Komish
piicst, M come into any of her dominions, to
infect any of her royal subjects with th?ir trea-
sonable and damnable persuasions uud prac-

N

170] STATE TRIALS, 3 James I. 1G0<3.— lite Trials qfihe Cotapiratort [180

tinuing and carriage of this treason ; to which
purpose there were four means used :

Jhst, Catesby was commended to the mar-
quis for a rtgimeut of ho>se in the Low-Coun-
tries, (which is the same that the lord Arundel
now hath) that under that pretence he might
have furnished this treason with horses without
suspicions The second means was an oath,
which they solemnly and severally took, as
well for secrecy, as^ersevcrance and constancy
in the execution of iheir plot. The form of
the oath was as follows : r You shall swear by
the blessed Trinity, and by the sacrament
you now purpose to receive, never to dis-
close directly nor indirectly, by word or cir-
cumstance, the matter that shall be proposed
to you to keep secret, nor desist from (he ex-
ecution thereof, until the rest shall give you
' leave.* — This oath was, by.Gerrard the Jesuit
given to Catesby, Percy, Christ. Wright, and
Thomas Winter at once; and by Greenweft
the Jesuit, to Bates, at another time, and so to
the rest. — The third, was the Sacrament;
w hid; they impiously and devilishly prophaned
to this end. — But the last, was their perfidious
and perjurious" equivocating, abetted, allowed,
and j untitled by the Jesuits, not only simply to
conceal or deny an open truth, but religiously
to aver, to protest upon salvation, to swear
that which themselves know to be most false ;
and all this, by reserving a secret and private
sense inwardly to themselves: whereby they
are, by their ghostly fathers, persuaded, That
they may safely and lawfully elude any ques-
tion whatsoever.

And here was shewed a Book written not
long before the queen's death, at what time
Thomas Winter was employed into Spain, en-
titled, ' A Treatise of Equivocation. ' Which
book being teen and allowed by Garner, the
superior of the Jesuits, and Blackwtl the arcli-
priest of England, in the beginning thereof,
Garnet with hV» o»n haitd put out those words'
in the title * of equivocation,' and made it thus;
' A Treatise against Lyiug and fiauduleut Dis-
simulation.' Whereas in deed and truth it
makes for both, * Speciosaque nomina culpa

* imponis. Gnrncttc tua\' And in the end
thereof, Black we I bespi inkles it with his bless-
ing, saying, ' Traciatus iste, valde doctus et

vtrc pius, et Catholicus est ; certe S. Scrip-
turaru.n, patruui, doctorum, scholasticoruin,
cnncr.ii-taruin, et oj -rimaruiu rationum nnesi-
diis plenissime firmat rcquitatcin a?quivoca-
tif>i:i.r» ; ideoque dignisaimus eat qui typispro-

* pagelur, ad cousolaiionem aitlictorum Cutho-
1 lieorum, et omnium piorum instructiontm.'
That is, * This Treatise is very learned, godly,

* and Catholick, and doth most fully confirm
the equity c.f equivocation, by strong proofs
out of ho'y Scriptures, fathers, doctors,
schoolmen, canonists, and soundest reasons ;
and therefore worthy to be published* in
priut, for the comfort of afflicted Catholick*,
and instruction of all the godly.'
Now, in this Book theie is propositi menta-

Us, ve; bulls, hcripta, and mixta; distinguishing

tices; yet so, that it concerned only such as
were made priests sithence her majesty caihe-
to the crown, and not before.

Concerning the execution of these laws, it is
to be observed likewise, that wheieas in the
quinquenuy, the live tears of queen Mary,
there were cruelly put to death about 300 per-
sons for religion ; in all her majesty's time by
the space of 44 years and upwards, there were
lor treasonable practices executed, iu all not
150 pncs'.s, nor abote hvo receivers and har-
Ixmrvrs of them ; and for religion not any one.
And here by the way, I desire those of parlia-
ment to observe, that it is now questioned and
doubted, whether the law of recusants and re-
conciled persons do hold for Ireland also,
and the pans beyond the seas: that is, whe-
ther such as were there reconciled be within
the compass o( the statute or not, to the end it
may be cleared and provided for.

Now against the usurped power of the see of
Home, we have of former times about 13 se-
veral acts of parliament : so thut the crown
mid the king of England is no ways to be
drawn under the government of any foreign
i>ower wliR' Soever, neither oweth duty to any,
but is immediately wider God himself. Con-
cerning the pope, for 33 of (hem, namely unto
by\\ ester, they were famous martyrs. But

* Quicunque desiderat primatum in ttrris, in-
' vtukt confusiouom in crrlis :' He that desires
primacy upon earth, shall surely find confusion
in hea\en.

5. The fifth Consideration is of the end,
which was to biing a final and fatal confusion
upon the state, lor howsoever they sought to
shadow their impiety with the cloke of ri-li-
£io n, yet they intended to breed a confusion
tit to get new alterations; for they went to
join with Romish Catholicks, and discontented
persons.

(5. Now the sivth point, which is the means
to compass and work these designs, were damn-
able- : by mining, by 3(5 barrels of powder,
hating crows ot iron, stones and wood laid
v.pou the ban els to have made the breach the
gi< HliT. Lord, what a wind, what a fire, what
a motion and coin-notion of earth and air
would there hate Ken ! But as it is in the
book o!' Km"!;, when Klias was in the cave of
the mount lloreb, and that he was called forth
to tiaud before the Lord, behold a mighty
stroi.g wind rent the mountains, and brake the
aock« : ' sed nnn in vuito Domiuu?,* ' but the
Lord was not in the wind.' .And after the
wind, came a commotion of the earth and air;

* Et lion iu commotione Dominus,* 4 the Lord

wns not iu that commotion ;' ami after the

commotion came lire ; ' et non in igne Duini-

4 nus,* * the Lord was not in the tire/ So

neither was God in auv part of this monstrous

action. The authors whereof were in this re-

■pect worse than the \ery damned spiiit of

Dives, who, as it is in the gospel, desired that

Others should not come * iu locum tormento-
xum/

7. The next coniideration is, the secret con-

IS I ] STATE TRIALS, 3 James I. 1 600.— w the Gunpowder Plot.

[184

of a mental, a verbal u written, and a mixed
proposition ; a very labyrinth to lead men into
error and falshood. — For example, to give you
a little taste of this art of cozening : A man is
asked upon his oath this question, Did you see
such a one to-day ? He may by this doctrine
answer, No, though he did see him, viz. re-
serving this secret meaning, not with purpose
to tell my Lord Cluef Justice : Or, I see him
not vhiima beatified, or, not in Venice, &c.
Likewise to answer thus ; I was in the com-
pany ; reserving and intending secretly as
added, this word not : As Strange the Jesuit
did |o my Lord Chief Justice and myself.
Take one or two of these out of that very book,
as for purpose : A man comet h unto Coventry
in time of a suspicion of plague, and at the
gates the officers meet him, and upon his oath
examine him : Whether he came from London
©r no, where they think certainly the plague to,
be : This man knowing for certain the plague
not to be at London, or at least knowing that
the air is not there infectious, and that he only
rid through some secret place of London, not
utaying there, may safely swear, he came not
from London ; answering to their final inten-
tion in their demand, that i«, whether he came
•o from London that he may endanger their
city of the plague, although their immediate
intention were to know, whether he came from
London or no. That man, saith the book, the
very tight of nature would clear from perjury. —
In like manner, one being convented in the
bishop's court, because he refused to take such
a one to his wife, as he had contracted with,
per verba de prase nti, having contracted with
another privily before, so that he cannot be
husband to her -that claimeth him ; may an-
swer, That he never contracted with her per
verba de pnrsenti : understanding that he did
not so contract that it was a marriage: for
that is the final intention of the judge, to know
whether there were. a sufficient marrjage be-
tween them or no.

Never did father Cranmer, father Latimer,
father Ridley, those blessed martyrs, know
these shifts, neither would they have used them
to have saved their lives. And surely let every
good man take heed of such jurors or witnesses,
there being no faith, no hond of religion or ci-
vility, no conscience of truth in such men ; and
therefore the conclusion shall be that of the
prophet David, ' Domine libera animam meam
' a labiis iniquis et a, lingua dolosa ;' * Deliver
' me, O Lord, from lying lips, and from a de-
' ceitful tongue.'

S. P. Q. It. was sometimes taken for these
words, Setiatus Popu/usguc Homanus ; The
Senate and People of Home : but now they
may truly be expressed thus, Stultus Populux
qrtttrit Rotnam ; A foolish People that runneth
to Rome. And here was very aptly and de-
lightfully inserted and related the apologue or
tale of the cat and the mice : The cat having a
long time preyed upon the mice, the poor crea-
tures at last, for their safety, contained them-
selves within their holes ; but the cat finding

his prey to cease, as being known to the mice,
that he was indeed their enemy and a cat, de-
viseth this course following, viz. change th his
hue, getteth on a rf ligious habit, shaveth his
crown, walks gravery by their holes : And yet

I)erceiving that the mice kept their holes, and
ooking out, suspected the worst, he formally,
and father-like, said unto them, * Quod fuerarn
' non sum, frater ; caput aspice tonsum !' ' Oh
' brother, I am not as you take me for, no more
' a cat; see my habit ami shaven crown I9
Hereupon some of the more credulous and bold
among them, were again, by this deceit,
snatched up ; and therefore, when afte rwards
he came as before to entice them forth, they
would come out no more, but answered, ' Cor

* tibi restat idem, vix tibi pnesto fidem ;* ' Talk
' what you can, we will -never believe you, you

* have still a cat's heart within you.* You do not
watch and pray, but you watch to prey. And
so have the Jesuits, yea, and priests too, for
they are all joined in the tails tike Sampson's
foxes, Kphraim against Man asses, and Ma-
nasses against Ephramn, but both against Judab.

8. The hist consideration is concerning the
admirable Discovery of this treason, which was
by one of themselves, who had taken the oath
and sacrament, as hath been said, against his
own will : the means was by a dark and doubts
ful letter sent to my lord Mounteagle *.

And thus much as touching the Considera-
tions : the Observations follow, to be considered
in this Powder-Treason, and are briefly thus:
1. If the cellar had not been hired, the mine*
work could hardly, or not at all lwive been dis-
covered ; for the mine was neither found nor
suspected until the danger was p:tst, and the
capital offenders apprehended, and by them-
selves, upon examination, confessed. 2. How
the king was divinely illuminated by Almighty
God, the only ruler of princes like an Angel of
God, to direct and point as it were to the very
place, to cause a search to be made there, out
of tho*c d.irk words of the letter concerning a
terrible blow. 3. Observe a miraculous acci-
dent which befel in Stephen Littleton's house,
called Iiolbach in Staffordshire, after they had
been two days in open rebellion, immediately
before the apprehension of these traitors : for
some of them standing by the fire-side, and
haying set two pound and an half of powder to
dry in a platter l»efore» the fire, and underset
the said platter with a great linen bag full of
other powder, containing some fifteen or six-
teen pounds ; it so fell out, that one coming to
put more wood into the fire, and casting it on,
there flew a coal into the platter, by reason
•whereof the powder taking fire and blowing up,
scorched those who were nearest, as Catesby,
Grant, and Rookwood, blew up the roof of the
house : and the linen- bag which was set under
the platter being therewith suddenly carried
out through the breach, fell down in the court-

* The Letter to lord Mounteagle is inserted
in king James's Account of the Discovery of the
Gunpowder Plot, which follows this Case.

lvS3] STATE TRIALS, 3 James I. 1606.— 77/4? Trials of the Conspirators [184

var,d wliole and unfired ; which if it had took fire was spoken of the? Jesuits nnd priests, so they all
in the room, would h:;ve slain them nil there, were joined in the ends, like Sampson's Foxes
so that they never sh *nld have come to this
trial : and ' Lex justior nulla est, quam necis
' artifices arte perire sua ?' 4. Note, that gun-

powder was the invention of a fryer, one of the
Romish rabble, as printing was of a soldier. 5.
Observe the sending of Bainham, one of the
damned crew, to the high-priest of Rome, to
give signification of this blow, and to crave hi*
direction and aid. 6. That for all their stir-
ring and rising in open rebellion, und notwith-
standing the false rumours given out by them,
'Hint the throats of all Catholicks should be
cut ; such is his majesty's blessed government,
and the loyalty of his subjects, as they got not
nny one man to take their parts besides their
own company. 7. Observe, the sherilf, the
ordinary minister of justice, according to the
duty of h:s oftice, with such power as he oil a
sudden by law collected, suppressed them. 8.
That God suffered their intended mischief to
come so near the period, as not to be discover-
ed, but within few hours before it should have
been executed. 9. That it wa* in the entering
of the Sun into the Tropick of Capricorn when
they began their mine ; noting, that by mining,
tliey should descend ; and bv hanging, ascend.
10. That there never was any Protestant mi-
nister in any treason and murder as yet at-
tempted within this realm.

T am n.nv come to the last part, which I pro-
posed in the beginning of this discourse; and
that i*, touching certain compare ms of this
Powder-Trcusun of the Jesuit*, with that of
Rakish, and the other of the priests Watson
and Clarke. 1. They had all one end, and
that wn& the ltomi>h Catholick cause. 2. The
same means, by Popish and discontented per-
sons, priests and lay- men. 3. They all plaid
at hazard ; the priests were at the bye, Raleigh
at the main, but these in at all ; a» purposing
to destioy all the king's royal is»uc, and withal
the whole estate. 4. They were all alike ob-
liged by the same oath and >ucrament. ,5.
The same proclamations were intended, after
the fact, to be published for reformation of
abuses. C. The like army pmxided for inva-
ding, to laud at Milford-Ha\en, or in Kent.

7. The same pensions of crowns promised.

8. The agreeing of the times of the treason of
Raleigh and these men, which was whin the
constable of Spain was coming hither : and
Raleigh said, thv»re could bo no suspicion of
any invasion, seeing that the constable of Spain
was then expected for a tteaty of peace ; and
the navy might be brought to the Croyn under
pretence of the service in the Low-Countries.

in the tails, howsoever severed in their heads.

The conclusion shall be from the admirable
clemency and moderation of the king, in that
howsoever these traitors have excteded all
others their predecessors in mischief, aud so
' Crescentc malitia, cresccrc dobuit et pama ;'
yet neither will the king exceed the usual pu-
nishment of law, nor invent any new torture or
torment- fur ihem ; but is graciously pleased to
afford them as well an ordinary coui>e of trial,
as an ordinary punishment, much inferior to
their offence. And surely worthy of observa-
tion i$ the punishment by law provided and ap-
pointed lor High-Treason, which we call crmtn
l(csa tiwjtstutts. For first after a traitor hath
had his just trial and is convicted and attaint-
ed, he shall have his judgment to be drawn to
the place of execution from his prison as being
not worthy any more to tread upon the face
of the earth whereof he was made : also tor that
he hath been retrograde to nature, therefore is
he drawn backward at a horse-tail. And
whereas God hath made the head of man the
highest and most supreme part, as being his.
chief grace and ornament, * Pronaque cum

* spec tent aniinalia ccetera terrain os hoinini

* sublime dedit ;' he roust be drawn with his
head declining downward, and lying so near the
ground as may be, being thought unfit to take
benefit of the common air. For which c«iuse
also he shall be strangled, being hanged up by
the neck between heaven and earth, as deemed
unworthy of both, or either ; as likewise, that
the eyes of men may behold, and their hearts
contemn him. Then is he to be cut down
alive, and to have his privy parts cut off and
burnt before his face a& being unworthily begot-,
ten, and unfit to leave any generation alter him.
His bowels and inlny'd parts taken out and
burnt, who inwardly had conceived and luir-
boured in his heart such horrible treason. Af-
ter, to have l.is head cut off, which had imagi-
ned the mischief. And lastly his body to be
quartered, and the quarter* set up in some high
and eminent place, to the view and detestation
of men, and to become a prey for the fowls of
the air.

Aud this is a reward due to traitors, whose
hearts be hardened : For that it is phytic of
state and government, to let out corrupt' blood
from the heart. But, • Po>nitentiu vera nun-
« quam, stra sed puMiitentia sera raro vera/
True repentance is indeed never too late : but
late repentance is seldom found true : Which
vet 1 pray the merciful Lord to grant unto them,
that having a sense of their offences, they may

were hanged for words than for deeds. And
before Raleigh's treason was discovered, it was
reported in Spain that Don Raleigh and Don
Cobhain should cut the king of England's
throat.

I say not, that we liave any proofs, that
these of the Powder- Plot wen* acquainted with
Raleigh, or Raleigh with them : but as before

And KaU-iirh further said, That many more ''make a true and sincere confession both for

their souls health, and for the good nnd safety
of the king and this state. And for the rest
that are not yet apprehended, my prayer to
(tud is, ' Ut aud couvertantur ne pereant, aut
* confundantur ne noceant ;' that either they
may be converted, to the end they perish not,
or el*e confounded, tlint they hurt not.
Alter this, by the direction of master At tor*

185]

STATE TRIALS, 3 James I. 1(306.— in the Gunpowder Phi.

[180

ne) -General, were tlieir several examinations
(subscribed by ttieinselves) shewed purticularly
unto them and acknowledged by them to be
their own, and true, wherein every one had
confessed the treason. Then did master Attor-
ney desire, That albeit that which had been
already done and confessed at the bar, might
t« all-sufficient for the declaration and justifica-
tion of the course of justice then held, especi-
ally seeing we have reus confitcntcs, the traitors
<mn voluntary confessions at the bar ; yet for
further satisfaction to so great a presence and
■udience, and tlieir better memory of the car-
riage of these treason?, the voluntary and free
confessions of all the said several traitors in writ-
mi: subscribed with their own proper hands, and
acknowledged at the bar, by themselves to be
true, were openly and distinctly read ; By
which, amongst other tilings, it appeared that '
Bates was absolved for what he undertook con-
cerning the Powder- treason, and being therein
warranted' by the Jesuits. Also it appeared,
that Hammond <he Jesuit, after that he knew
the Powder- treason was discovered, and that
these traitors had been in actual rebellion, con-
fessed them, and gave them absolution : and
tins was on Thursday the 7 th of November.

Here also was mention made by master
Attorney of the Confessions of Watson and
Clarke, seminary priests, upon their apprehen-
sion ; who affirmed, that there was some trea-
son intended by the Jesuits, and then in hand ;
as might appear. 1. By their continual nego-
tiating at that time with Spain, which they
inured themselves tending to nothing but
a preparation for a foreign commotion. 2. By
their collecting and gathering together such
great sums of money, as then they had done,
therewith to levy an army when time should
lerte. 3. For that sundry of the Jesuits had
been tampering with Catholicks, as well to
«hwade them from acceptance of the king at
hia first coming, saying, That they ought rather
to die than to admit of any heretick (as they
cwiinually termed his majesty) to the crown ;
ut that they might not, under pain of excora-
tt3Bcation, accept of any but a Catholick for
'Aft? sovereigns; as also to dissuade Catholicks
ft* their loyalty after the state was settled.
I«Jt. In that they had both bought up store
of treat horses throughout the country, and
conveyed powder and shot, and artillery se-
'Tttly to their friends; wishing them not to stir,
Ut keep themselves quiet until they heard
faro them.

After the reading of their several Examina-
tions, Confessions, and voluntary Declarations
*tt<*U of themselves, as of some of their dead
Confederates, they were all by the Verdict of
fht jury found Guilty of tlie Treasons contained
•a (nt-ir Indictment. And then being severally
fcktd. What they could say, wherefore Judg-
btit of Death * should not be pronounced
toinst them ? there was not one of these (<>*-
(1* Kookwood) who would make any con-
rm<*d speech either in defence or extenuation
of tlie fret.

Thatnat Winter only desired, that he might
be hanged both for his brother and himself.

Guy Fawkes being asked, Why he pleaded
Not Guilty, having nothing to ' say for his ex-
cuse : answered, That he had so done in res-
pect of certain conferences mentioned in the
indictment, which he said that he knew not
ot': whicii were answered to have been set
down according to course of law, as neces-
sarily presupposed before the resolution of
such a design.

Keyt said, That his estate and fortune wero
desperate, and as good now as at another time,
and for this cause rather than for another.

Bates craved mercy. — Robert Winter, mercy.

John Grant was a good while mute ; yet
after, submissively said, he was guilty of a con-
spiracy intended, but never effected.

But Ambrose Rookv,ood first excused his de
nial of the Indictment, fur that he had rather
lose his life than give it. Then did he acknow-
ledge his offence to be so heinous, that he justly
deserved the indignation of the king, and of the
lords, and the hatred of the whole common-
wealth ; yet could he not despair of mercy at
the hands of a prince, so abounding in grace
and mercy : and the rather, because his offence,
though it were incapable of any excuse, yet
not altogether incapable of some extenuation,
in that he had been neither author nor actor,
but only persuaded and drawn in by Catesby.
whom he loved above any worldly man : and
that he had concealed it not for any malice to
the person of the king, or to die state, or for
any ambitious respect of his own, but only
drawn with the tender respect, and the faithful
and dear affection he bare to Mr. Catesby his
friend, whom he esteemed dearer than any
thing else in the world. And this mercy he
desired not for any fear of the image of death,
but for grief that so stiameful a death should
leave so perpetual a blemish and blot unto all
ages, upon his name and blood. But howso-
ever that this was his first offence, yet he hum-
bly submitted himself to the mercy of the king;
and prayed that the king would herein imitate
God, who sometimes doth punish corporaliter,
non mortalitert corporally, yet not mortally.

Then was related how that on Friday imme-
diately before this Arraignment, Robert Win-
ter having found opportunity to have confer-
ence with Fawkes in the Tower, in regard of
the nearness of their lodgings, should say to
Fawkes, as Robert Winter and Fawkes con-
fessed, thot he and Catesby had sons, and that
boys would be men, and that he hoped they
would revenge the cause; nay, that God would
raise up children to Abraham out of stones: also
that they were sorry, that nobody did set forth
a defence or auology of their action, but yet
they would maintain the cause at their deaths.

Here also was reported Robert Winter's
dream, which he had before the blasting with
powder in Littleton's house, and which he him-
self confessed and first notified, viz. That he
thought he saw steeples stand awry, and within
those churches strange and unknown iuc*?.

187] STATE TRIALS, 3 James I. 1600.— TIte Trials oftlic Conspirators [13«

And after, when the foresaid blast had the dav
following scorched divers of the confederates,
and much disfigured the faces and counte-
nances of Grant, Itook wood, and others ; then
did Winter call to mind his dream, and to his
remembrance thought, that the faces of his
associates so scorched, resembled those which
he had seen in his dream.

Then was sir Evcrard Digby arraigned, and
after his Indictment was read; wherein he
was charged, not only to have been acquainted
with the Powder-treason, and concealed it,
and taken the double oath of secrecy and
constancy therein, but likewise to have been
an actor m this conspiracy ; and lastly to have
exposed, and openly shewed himself in the re-
bellion in the country amongst the rest of the
traitors. All which after he had attentively
heard and marked, knowing that he had con-
fessed it, and the strength and evidence of the
proofs against hiin, and convicted with the tes-
timony of his own conscience, shewed his dis-
position to confess the principal part of the
said Indictment, and so began to enter into a
discourse. But being advertised that he must
first plead to the Indictment directly, either
Guilty, or not Guilty ; and that afterwards he
should be licensed to speak his pleasure; he
forthwith confessed thetreason contained in the
Indictment, and so fell into a speech, whereof
there were two parts, viz. Motives, and Peti-
tions. The first motive which drew him into
this action, was not ambition or discontentment
of his estate, neither malice to any in parlia-
ment, but. the friendship and love he bare to
Cattv-hy, which prevailed so much, ami was
so powerful with him, as that for his sake he
was ever contented and ready to hazard him-
self and his estate. The next motive, was the
cause of religion, which alone, seeing (as he
said) it lay at the stake, he entered into reso-
lution to neglect in that, behalf, his estate, his
life, his name, his memory, his posterity, and
all worldly and e>»rthlv felicity whatsoever ;
though he did utterly extirpate, and extinguish
all other hopes f>r the restoring of the Catho-
lick Religion in Knfjand. His third motive
was that promi«cs were broken with the
Catholirks. And lastly, that they generally
feared harder laws from this parliament against
recu^ms, as that recusants wive*, and women
should be liable to the mulct as well ns their
husb'in.ls and men. And further, tint it was
suppled, that it should be made a pr<r.minirct
unlv to be a Catholick.

Mis Petitions were, That sithence his offence
was confined and contained within himself,
that the punishment also of the same might
extend only to himself and not to be transferred
either to his wife, children, sisters, or other :
and therefore for his wife he humbly craved,
that she mi'jht enjoy her jointure ; his son the
benefit of an cnt»il made long before any
thought of this action; his sisters, their jnst
and due portions, which were in his hands ; his
creditors their rightful debts, which that he
might more justly set down under his band, he

requested that before his death, his man (who
was better acquainted both with the men, and
the particulars than himself) might be licensed
to come unto him. Then prayed he pardon of
the king and lords for his guilt. And lastly he
entreated to be beheaded ; desiring all men to
forgive him, and that his death might satisfy
them for his trespass.

To this speech forthwith answered sir Ed-
ward Coke, Attorney-General, but in respect of
the time (for it grew now dark) very briefly :

1. For his Friendship with Catesby, that it
was mere folly and wicked conspiracy. 2. His
Religion, error, and heresy. 3. His Promises,
idle and vain presumptions, as also' his Fears,
false alarms, concerning wives that were recu-
sants, if they were known so to be before
their husbands (though they were good Protes-
tants) took them, and yet for outward and
worldly respects whatsoever, any would match
with such ; great reason there is that he or
thev should pay for it, as knowing the penalty
anrJ burden before: for 'volenti et scienti
'non sit injuria ;' no man receives injury in
that,, to which he willingly and knowingly
agreeth and consenteth. But if she were no
recusant at the time of marriage, and yet after-
wards he suffer her to be corrupted and se-
duced, by admitting priests and romanists
into his house ; good reason likewise that he,
be he papist or protestunt, should pay for his
negligence and misgovcrnment. — 1. Concern-
ing the Petitions for wife, for children, for
sisters, &c. O how he doth now put on the
bowel* of nature and compassion, in the peril
of his private and domestical estate ! But
before, when the publick state of his country,
when the kirn.;, the queen, the tender princes,
the nobles, the whole kingdom were designed
to a perpetual destruction ; where was then
this piety, this religious affection, this care ?
All nature, all humanity, all respect of laws
both divine and human, were quite abandoned;
thru was there no conscience made to extir-
pate the whole nation, end all for a pretended
zeil to the Catholick Religion, and the jus-
tification of so de-tf stable and damnable a fact.
Here did Sir Ercrard Dighi/ interrupt Mr.
Attorney, and said, that he did not justify the
fact, but confessed that he deserved the vilest
death, and most severe punishment that might
be : but lie was an bumble petitioner for mer-
cy, and some moderation of justice. — Where-
upon Mr. Attorney replied, that be should not
look by the king to be honoured in the manner
of his divith, having so far abandoned all reli-
gion and humanity in his action : but that he
was rather to admire the great moderation
and mercy of the king, in that for so exorbitant
a crime, no new torture answerable thereunto
was devised to be inflicted upon him. And fir
his wife and children, whereas he said that for
the Catholick cause he was content to neglect
the ruin of himself, his wife, his estate, and all ;
he should have bis desire as it is in the Psalm,
' Let his wife be a widow, and his children
4 vagabonds, let his posterity be destroyed, auct

189]

STATE TRIALS, 3 James I. 1600.— in the Gunpowder Plot.

[190

1 in the next generation let his name be quite
4 put out.' For ihe paying of your creditors, it
is equal and just; but yet lit the king be iirst
satiatied and paid, to whom you owe so much,
a* that all you have is too little : yet these
things inust be left to the pleasure of his ma-
jesty, and die course of justice and law.

Earl of Northmnuton. You must not hold it
finny* v, sir Everaru Digby, though at this time
being presided in duly, conscience mid truth, I
do not suffer you to wander in the labyrinth
wt your own idle conceits, without oppo-
ation, to seduce others, as yourself have been
seduced, by false principles, or to convey your-
srif by charms of imputation, by clouds of
error, and by shifts of lately tjeyised equivo-
cation, out of that straight \t herein your late
fecure and happy fortune hath been unluckily
entangled, but yet justly surprized by the rage*
nut re\ euge vf\our own rash humours. If in
this crime (uioio horrible than any man is able
to express) I could lument the estate of any
person upon earth, I could pity you ; but
thank yourself and»your bad counsellors for
leading you into a crime of such a kind, as no
Itss benunibeth in all faithful, true and honest
men, the tenderness of affection, than did in
?ou the sense of all humanity. — That you were
once well thought of and esteemed by the late
queen, I can witness, having heard her speak
of you with that grace, which might have en-
couraged a true gentleman to have run a better
course. Nay, 1 will add fuither, that there
•as a time wherein you were as well affected
to the king our master's expectation, though
perhaps upon false rumours and reports, that
be would have yielded satisfaction to your un-
f robahle and vast desires ; but the seed that
wanted moisture (as our Saviour himself re-
portetlij took no deep root : that zeal which
Lath no other end or object than the plcn&iug
of itself, is quickly spent; and Trajan, that
worthy and wise emperor, had reason to hold
kimself discharged of all debts to those that
kad offended more by prevarication, than they
Ovid ever deserve by industry. — The grace
*i goodness of his majesty in giving honour
ska first coming unto many men of your own
flfcetion, axid (as I think) unto yourself; his
fauty in admitting all without distinction of
Trojan or of Ty rian, to his royal presence, upon
ja« occasions of access; his integrity 1n setting
open the irate of cml justice unto all his sub-
jects equally and indifferently, with many other
Urour* that preceded by the progression of
ftaie; arc so palpable and evident to all
men, that lime cither eyes of understanding,
or understanding of capacity, as yourself and
•any others have been driu-n of late to excuse
tad "countenance your execrable ingratitude
•idi a tlil-ic and scandalous report of s Jine fur-
•W hope and comfort yielded to ti»e Catho-
IkU for toleration or connivance, before his
(cuing to the crown, than miicc hath been
perf'rfujed, made good or satisfied. — 1 am not
ipu#rant, that lJ»i* seditious and false alarm
*m1i awaked ■"** incited uiany working spirits

to the prejudice of the present state, that
might otherwise have slept as before with si-
lence and sufferance ; it hath served for a
shield of wax against a sword of power : it nath
been used as an instrument of art to shadow
false approaches, till the Tmjan horse might
be brought within the walls of the parliament,
with a belly stuffed, not as in old time with
armed Greeks, but with hellish gunpowder.
But howsoever God had blinded you and others
in this action, as he did the king of Egypt and
his instruments, for the brighter evidence of
his own powertul glory ; yet every man of un-
derstanding could discern, that a prince whose
judgment had heen iixed by experience of so
inau y years upou the poles of the North and
the Suuth, could not shrink upon the sudden :
ne nor since with fear of that combustion which
Catesby that -arch-traitor, like a second Phae-
ton, would have caused in an instant in all the
elements.' His majesty did never value for-
tunes of the world, in lesser matter than reli-
gion, with the freedom of his thoughts : he
thought it no safe policv (professing as he did,
and ever will) to call up more spirits into
the circle than he could put down again ; he
knew, that ornne regnum in ae divisum desotabi-
tar, philosophy doth teach, that whatsoever
any man may think in secret thought, that where
one doth hold of Cephas, another of Apollo,
openly dissension ensues, quod insitum aiieno
solo est, in id quo ulitur natura vtrtenle dege-
nerat ; and the world will ever apprehend, that
Quorum est commune xymbolum, Jacillimus ett
transitu*. — Touching the point itself of promis-
ing a kind of toleration to Catholics, as it was
divulged by these two limbs of Lucifer, Watson
and l'eicy, to raise a ground of practice and
conspiracy against the state and person of our
dear sovereign, let the kingdom of Scotland
witness for the space of so many years before
his coining hither, whether cither flattery or
fear, no, not upon that enterprize of the 17th
of Nov. which would have put the patience of
any prince in Europe to his proof, could draw
from the king the least inclination to this dis-
pensative indifference, that was only believed,
because it was eagerly desired. — Every man
doth know how great art was used, what strong
wits sublimed, how many ministers suborned
and corrupted many years both in Scotland and
in foreign parts, to set the king's teeth an edge
with fair promises of future helps and supplies,
to that happy end of attaining his due right in
KpfJ-.ind, when the sun should »et, to rise more
ul-Tiously in the same hemisphere, to the won-
der Inith of this inland and of the world. But
ail in \a'-n ; iorjac/a crat a Ira, the king's coin-
puss had been set before, mid by a more cer-
tain rul'-, and thev were commonly cast off as
forlorn hopes in the king's favour, that ran a
eorrte ef milking themselves in the foremost
front iiiTiireiun correspondency. — Upon notice
«jii en to his majesty from hence some vetirs be-
fore the death of the late queen, that many men
were ^nmn suspicious of his religion, by tu-
rnouts spread abroad, that tome of those in fo-

191] STATE TRIALS, 3 James I. 1000.— We Triak of the Conspirators [192

were subject, both in points of faith, and limi-
tation of loyalty : And last of all, forcasting to
' what end their former protestation would come,
when present satisfaction should shrink ; he
was ever fearful to embark himself for any far-
ther voyage and adventure in this strait, than
Ins own compass might steer him, and his judg-
ment level him. — If any one green leaf for Ca-
tholics could have been visibly discerned by the
eye of Catesby, Winter, Garnet, Fawkes, &c.
they would neither have entered into practice
with foreign princes during the queen's time for
prevention ot the king's lawful and hereditary
right, nor have renewed the same both abroad
and at home by missions and combinations,
after his majesty was botli applauded and enter-
ed.— It is true, that by Confessions wc find,
that false priest Watson, and arch traitor Percy,
to have been the first devisers and divulgcrs of
this scandalous report, us an accursed ground,
whereon they might wiih some ail vantage, as it
was conceived, build the castles ot their < xmspi-
nicy. — Touching the first, no nun tun speak
more sound 'y to the point thrui myself; *t,« be-
ing sent into tho pnsin by the king to « hirge
him with this fake alarm, only two d:iv« before
his death, and upon hi? soul lo n.ess him in the
presence of God, and as lie would answer it at
another bar, to con less directly whether at
( it her of both these times he had access unto
his majesty at Edinborough, his majesty did
give him auy promise, hojie or comfort of en-
courage aicnt to Catholics concerning toleration ;
he did there piotest upon his soul that he could
ni?ver win one inch of ground, or draw the
smallest comfort from the king in those degree?,
nor further than that lie would have them ap-
prehend, th-.it as he w:«s a stranger to this state,
so til! he understood in all points how those
matters stnoj, he would not promise favour any
way ; but did protest lh.it all the crowns and
_ kingdoms in this world, should not induce him
to 'hange any jot of his profession, which was
the pasture of bis soul, and earnest of his eternal
inheriunee. He did conilj.s i hat in very deed, to
keep tip the hearts of Catholic* in love ami duty
to tiie king, lie had imparted the king** won Is to
many, in abetter tune, and a higher -vind of
descant, that: his hook of plain song did direct;
because he knew that others like sly barren en
looked that way, when their stroke was bent
another way. For this he crated pardon of the
king in humble manner, and tor his main {rea-
sons of a higher nature than these figures of
hypocrisy; and seemed penitent, as well for
the horror of his crime, as for the falsehood
of bis whisperings. — It hindered not tin* satis-
faction which may he given to Percy's shadow
(the most desperate fioutefeu in the pack),
that as he died impeuiienr, for any thing we
know : so likewise he died silent in the jumicu-
lars. For first, it is not strange that such a
traitor should devise so scandalous a slurder
out of the malice of his hrart, intending to
dt stroy the king by any means, and to advance
all means that might remove obstructions and
impediments to the plot of gunpowder. Th«

reign parts, that seemed to be well affected to
his future expectation, had used his name more
audaciously, and spoken of bis favour to the
Catholics more forwardly than the king's own
conscience and unchangeable decree could ac-
knowledge or admit (either with a purpose to
prepare the minds of foreign princes, or for a
practice to estrange and alienate affections at
home) hot only utterly renounced and con-
demned these encroachments of blind zeal, and
rash proceedings, by the voices of his own mi-
nisters, but was careful also for a caution to
succeeding hopes, so far as lay in him, that by
the disgrace of the delinquents in this kind, the
minds of all English subjects chiefly might be
secured, and the world satisfied. — No man can
speak in this case more confidently than myself,
that received in the queen's time, for the space
of many years, directions and warnings to take
heed, that neither any further comfort might he
given to Catholics, concerning future favours,
than he did intend, which was to hind all sub-
jects in one kingdom to one law, concerning
the religion established, howsoever in civil mat-
ters he might extend his favour as he found just
cause : nor any seeds of jealousy and diffidence
sown' in the minds of Protestants by Semeis and
Achitopheli, to make them doubtful of his con-
stancy, to whom he would confirm with his
dearest hlood, that faith which lie had sucked
from the breast of his nurse, apprehended from
the cradle of his infancy, and maintained with
his uttermost endeavour, affection and strength:
since he was more able out of reading and dis-
puting, to give a reason of those principles which
Le had now digested and turned i" nutriment.
—He that wrote the Book of Titles before the
late queen's death, declares abundantly by seek-
ing to possess some foreign prince of the king's
hereditary crowns, when the cause should come
to the proof, and may witness instead of many ;
what hope there was of the king's favour or af-
fection to Catholics in the case of toleration or
dispensation, with exercise of conscience. For
every man may guess that it was no slight or
ordinary degree of despair, that made him and
other of his suit renounce their portion in the
son and heir of that renowned and rare lady
Mary queen of Scotland, a member of the Ro-
man church ; as some did in David, Nut in no-
bit pars in David, nee hwrcditas in fdio hoi :
For hereof by letters intercepted in their pas-
sage into Scotland, the records and proofs are
evident. His majesty, so long as he was in ex-
pectation of that which by the work and trrace
of Cod lie doth now possess, did ever seek to
settle his establishment upon the faith of Pro-
testants in generality, as the most assured sheet,
anchor. For though he found a number on the
other side, as faithful and as wcll-affcctcd to
his person, claim and interest, as any men
alive, as well in respect of their dependency
upon die queen his mother, as foi the taste
which they had of the sweetness of himself; yet
finding with what strength of blood many have
been over-carried out of a fervency in zeal in
fonder timet, observing to what censures they

193]

STATE TRIALS, 3 James I. 1 606.— in the Gunpowder Plot.

[191

more odious that be could make him to the
party malecouteut, and the more sharply that
he could set the party mulccoiitent upon the
point and humour of revenge: the stronger
was his hope at the giving of the last blow, to
be glorified and justified. But touching tl»e
truth of the matters, it "ill be witnessed by
many, that this traitor Percy after both the
first and second return from the king, brought
to the Catholicks no spark of comfort, of en-
couragement, of hope; whereof no stronger
}i jof of argument doth need, than that Fawkes
and others were employed both into Spain
tod other parts, for the reviving of a practice
impended and covered, after Percy's coming
back ; as in likelihood they should not have
been, in case he had returned with a branch of
olive in his mouth, or yielded any ground of
comfort to resolve upon. — Therefore I thought
it thus far needful to proceed, for the clearing
of those scandals that were cast abroad, by
these forlorn hopes and graceless instruments.
It only remains that I pray lor your repentance
in this world for the satisfaction of many, and
forgiveness in the next world; for the saving of
yourself ; having bad by the king's favour so
Jong a time to cast up your account, before
jour appearance at the seat of the great auditor.
Then spake the Earl of Salisbury, especially
to that point, of his majesty's breaking of pro-
mise with Recusants, which was used and
urged by sir Everard Digby, as a motive to
draw biro to participate in this so hideous a
treason. Wherein bis lordship, after acknow-
ledgment that sir Everard Digby was his ally,
and having made a zealous and religious pro-
testation concerning the sincerity and truth of
that which he would deliver : sljortly and clearly
defended the honour of the king herein, and freed
h* majesty from all imputation and scandal of
irresolution in religion, and in the constant and
perpetual maintaining thereof; as also from
■King at any time given the least hone, much
kse promise of toleration. To which purpose
W declared how his majesty, as well before his
casing' to this crown, as at that very time,
md always since, was so far from making of
promise, or giving hope of Toleration, that he
eier professed he should not endure the very
notion thereof from any. — And here his lord-
ship shewed what was done at Uumpton<-Court
at the time of Watson's treason, where some
of tin* greater recusants were ronventcd: And
being found tlicn not to have their fingers in
treason, were sent away again with encourage-
Bent to persist in their dutiful carriage, and
tith promise only of thus much favour. That
those mean profit* which had accrued since the
iiajr** time to his majesty lor their recusancy,
ibould be forgiveu to the principal gentlemen,

| who had both at his entry shewed so much
loyalty, and had kept themselves so free since
from all conspiracies. — Then did his lordship
also (the rather to shew how little truth sir
Everard Digby 's words did carry in any thing
which he had spoken) plainly prove, that all
his protestations wherein he denied so con-
stantly to be privy to the Plot of Powder, were
utterly false, by the testimony of Fawkes (there
present at the bar) who had confessed, that
certain months before that session, the said
Fawkes being with Digby at his house in die
country, about what time there had fallen much
wet : Digby taking Fawkes aside after supper,
told him that n« was much afraid that the
powder in the cellar was grown dank, and that
some new must be provided, lest that should
ndt take fire. — Next, the said earl did justly
and greatly commend the lord Mountcagle for
his loyal and honourable care of bis prince and
com i try, in the speedy bringing forth of the
letter sent unto him; wherein he said, that he
had shewed both his discretion and fidelity.
Which speech being ended, Digby then ac-
knowledged, that he spake not that- of (he
breach of promise out of his own knowledge,
but from their relation whom he trusted; and
namely from sir Tho. Tresham.

Now were the Jury returned, who having
delivered their Verdict, whereby they jointly
found those seven prisoners, arraigned upon
the former Indictment, Guilty ; Serjeant Philips
craved Judgment against those seven upon
their conviction and against sir Everard Digby
upon his own Confession.

Then the Lord Chief Justice of England,
after a grave and prudent relation and defence
of the laws made by queen Elizabeth against
recusants, priests, and receivers of priests,
' together with the several occasions, progresses
and reasons of the same; and having plainly
demonstrated and proved that tbey were all
necessary, mild, equal, moderate, and to be
justified to all the world : pronounced Judg-
ment.

Upon the rising of the court, sir Erererd
Digby bowing himself towards the lord*, said,
If I may but hear any of your lordships say,
you forgive me, I shall go more cheartully to
the gallows. — W hereunto the lords said, God
forgive you, and we do.

And so according to the Sentence, on Thurs-
day following being the 30th of January, ex-
ecution was done upon sir Everard Digby,
Robert Winter, John Grant, and Thomas
Bates, at the West end of Paul's church ; and
on Friday following, upon Thomas Winter,
Ambrose Uookwood, UoWrt Keyes, and Guy
Fawkes, within the old Palace- Yard, at West-
minster, not far from the Purliaincut-llouse.

YOi. It.

O

195] STATE TRIALS, 3 James I. I606._7fc Trials of the Cotispu-ators [19G

The following History of the Gi:npowder-Plot, written by King James himself, it
extracted from the first Collection of his Works published during his life-time by
Mountague, Bishop of Winchester.

While this land and whole monarchy flou-
rished in a most happy aqd plentiful peace, as
well at home, as abroad, sustained and con-
ducted by these two main good pillars of ail
good government, piety and justice, no fo-
reign grudge, nor inward whispering of discon-
tentment any way appearing : the king being
upon his return from his hunting exercise at
Royston, upon occasion of the drawing near of
the parliament^time, which had been twice
prorogued already* partly in regard of the ^a-
son of the year, and partly of the term : as
the winds are ever stillest immediately before a
storm ; and, as the sun " bleaks often hottest to
foretel a following shower ; so, at that rime of
greatest calm, did this secretly hatched thun-
der begin to cast forth the first flashes, and
flaming lightnings of the approaching tem-
pest. For, the Saturday of the week imme-
diately preceding the king's return, which was
upon a Thursday, being hut ten days before
the parliament, the lord Mont eagle, son and
heir to die lord Morley, being in his own
lodgings ready to go to supper, at seven of the
clock at night, one of his footmen, whom he
had sent of an errand over the street, was
met by a man of a reasonable tall personage,
who delivered him a Letter, charging him to
put it in my lord liis master's hands ; which
my lord no sooner received, but that, havinz
broken it up, and perceiving the same to be of
an unknown, and somewhat unlc<:ible hanil,
and without either date or superscription, did
call one of his men unto him, for helping him
to read it. But no sooner Hid he conceive the
strange contents thereof, although he was some-
what perplexed what construction to make of
it/ns whether of a matter of consequence, as
indeed it was, or whether some foolirh devi«ed
pasquil by some of his enemies to scare him
from his attendance at the paiiiament, yet did
he, as a most dutiful and loyal subject, con-
clude net to conceal it, whatever might come
of it. Whereupon, notwithstanding the late-
ness and darkness of the night in iliat serson
of the year, he presently repaired to his ma-
jesty'?* palace at Whitehall, mid there delivered
the same to the earl of Salisbury, his majesty's
principal secretary. Whereupon, the suiti earl
of Salisbury having read the letter and heard
the manner of the coming of it to his hands, did

f;reaily encourage and commend my lord tor
lis discretion, telling him plainly, that, what-
soever the purport of the Letter might prove
hereafter, yet did this accident put him in
mind uf divers advertisements he had received
roni bcy.ind the seas, wherewith he hud ac-
quainted, as well the king himself, as divers of
his privy-counsellors, concerning some budUic.Ls
the Papists were in, both at home and abroad,
making preparations for some combination
amongst them against this parliament-time, for

enabling them to deliver at that time to the
king sojue petition for toleration uf religion,
which should be delivered in some such order,
and so well backed, as the king should be loth
to refuse their requests ; like the sturdy beggars,
craving alms with one open hand, but carrying
a stone in the other, in case of refusal. And
therefore did the earl of Salisbury conclude
with the lord Monteagle, that he would, in re-
gard of the king's absence, impart the same
Letter to some more of his majesty's council,
whereof my lord Monteagle liked well, only
adding this request, by way of protestation*
That whatsoever the event hereof might prove,
it should not he imputed to him, as proceeding
from too light atid too sudden an apprehension,
that he delivered this Letter ; being ouly
moved thereunto for demonstration of his
ready devotion, and care for preservation of
his majesty and the state. And thus did the
earl of Salisbury presently acquaint the lord
chambcrhun with the ^aid letter. Where-
upon they two, in presence of the lord
Monteagle, calling to mind the former intelli-
gence already mentioned, which seemed to
have some relation with this letter ; die tender
enre which they ever carried to the preserva-
tion of his majesty's person, made them ap-
prehended, that some perilous attempt did
thereby appear to be intended against the
same, which did the more nearly concern the
said lord chamberlain to have a care of, in re-
gard that it doth belong to tlic charge of his
omVc to oversee, as well all places of assembly
wiiere his majesty is to repair, as his highness f
own private houses. And therefore did the
said two counsellors conclude, that they should
join unto themselves three more* of the council,
to wit, the lord admiral, the earls of Worcester
and Northampton, to be also particularly ac-
quainted with this accident, who having all of
them concurred together to the re-examination
of the contents of the said letter, they did con-
clude, That, how slight a matter it might at
the first appear to l>e, yet was it not absolutely
lo be contemned, in respect of the rare which
it behoved them to ha\e uf the preservation of
his majesty's person: but, vet n solved for two
reasons, first, to acquaint the I in^j himself with
the same, before the* proceeded to any further
inquisition in the matter, ns well for the expec-
tation and experience they had of his majesty's
fortunate judgment, in clearing and solving ob-
scure riddles and doubtful mysteries; as also,
because tire more tune would, in the mean
tnne, be given for the practice to ripen, if any
was, whereby the di-»covciv might he more
clear and evident, and the ground of proceed-
ing thereupon more safe, just, and easy. And
so according to their determination did the
said earl of Salisbury repair to the king in hit
gallery upon Fiiday, bcinj; AlihallowVday, i*

1 97}

STATE TRIALS, 3 James I. \GOC}.—in the Gunpovdtr Plot.

tins

the afternoon, which was the day after his ma-
jest v^ arrival, and none but hinisc If being pre-
sent with his highness at that time, where,
without any other speech, or judgment given of
the Letter, hut only relating simply the fonn
of the delivery thereof, he presented it to his
majesty. The contents whereof follow :

' Aly Lord ; Out of the love I bear to some
1 of your friends, I liave a care of your preser-
' ration : therefore I would advise you, :is you
1 tender your life, to devise some excuse, to

• >bil t off your attendance at this parliament.
'For God and man have concurred to punish
'the wickedness of this time. And think not
1 slightly of this advertisement, but retire your-
'self into your country, where you may ex-
' pect the event in safety. For, though there
' be no appearance of any stir, yet I say, they
' shall receive a terrible blow tuis parliament,
< and yet they shall not see who hurts them.

• This counsel is not to be condemned, because
' it may do you good, and can do you no harm,
1 for the danger is past so soon as you have
'burnt the Letter; and I hope God will gi\o
' yon grace to make good use of it ; to whose
'holy protection I commend you/ *

Tiic king no sooner read the letter, but after
a little pause, and then reading it once n^ain,
lie delivered his judgment of it in such sort( as

* " Who IfTvas" observes Kennett, " that
wrote this Letter to the Lord Montcuglc was ne-
ver known, or how it came that king James sus-
pected its meaning to be what,it really was, is
in a great part a mystery to this day. Yet I
cannot gi\e myself lea\e to doubt, hut king
James had some light given him from Henry
4th of the designs of the Papists against hiin;
tor in the duke of Sully's Memoirs, there is
more than once mention made of some ' sudden
Blow' they intended in England about that
time : and in one Letter, k i i i iz. James is desired
to nice warning from the fate of Henry 3. 1
uc the more confirmed in this opinion, that in
the Harangue pronounced at Rome in praise
*i Ravilliac the Assassin of Henry 4, which
/its since been so often quoted by several au-
thors, both Papist and Protestant, as an argu-
ment that the Jesuits approved the murder:
it is there said, ' That Henry 1, was not. only
'an inveterate enemy to the Catholick religion
' in hu> heart, but had obstructed the glorious

• enterprizes of those that would have restored
1 it in England, and occasioned them to he
'crown'd with Martyrdom.' Now it's well
known, Garnet and the re&t that were executed
fcr the Guii-Powder-Plot, were reputed Mar-
tyrs for the ("athoKck cause by the college of
Jesuits ut Rome, where that Harangue was
pronounced.*' Sec also Welwood. — It is now
a common opinion that the above Letter to
lord Mounfeagle was sent by his sister Mary
the wife of Thomas Habington or Abingdon.
Some particulars of this family and of their
concern with the treasonable transactions in
tbc reigns of Elizabeth and James 1st. are to be
JimuJ ui Nash's History of Worcestei >hire.

I

he thought it was not to be contemned, for that
the sti!e of it seemed to be more quick and
)ithy, than is iiiuai to be in any pasquil or li-
>el, the superfluities of idle brains. But the .
earl of Salisbury, perceiving the king to appre-
hend it deeplier than he looked for, knowing
his nature, told him, that lie thought, by one
sentence in it, that it was like to be written by
some fool, or madman, reading to him this sen-
tence in it : ' For the danger is past, as soon as
you have burnt the letter ;' which, he said,
was likely to be the saying of a fool ; for, if
the danger was past, so soon as the letter was
burnt, then the warning behoved to be of little
avail, when the burning of the letter might .
make the danger to be eschewed. But the
king, on the contrary, considering the former .
sentence in the letter, 4 That they should re-
ceive a terrible blow at this parliament,1 and
yet should not see who hurt them, joining it to
the sentence immediately following, already .
nlledged, did thereupon conjecture, that the
danger mentioned should be some sudden dan-
ger by blowing up of powder ; for no other in-
surrection, rebellion, or wlintsoever other pri-
vate and desperate attempt could be commit- .
ted, or attempted, in time of parliament, and
the authors thereof unseen, except only if it
were by a blowing up of powder, which might
be performed by one base knave in a dark
4 corner : Whereupon he was moved to interpret
and construe the latter sentence iu the letter,
alltdged b) the earl of Salisbury, against all or-
dinary sense and construction in grammar, as
if by these words, ' For the danger is past, as
soon as you have burnt the letter ;' should he
closely understood the suddenness and quick-
ness of the danger, which should be as quickly
performed and at an end, as that paper should
be a blazing up in the lire ; turning that word
of * as soon' to the sense of ' as quickly ;* and
therefore wished, that, before his going to the
parliament, the under-rooms of the parliament-
house might be well and narrowly searched.
But, the earl of Salisbury wondering at this his
majesty's commentary, which he knew to be so
far contrary to his ordinary and natural dispo-
sition, who did rather ever sin upon the otner
side, in not apprehending, nor trusting due ad-
vertisements of pructices aud perils, when he
was truly informed of them, whereby he had
many times drawn himself into many desperate
dangers; and interpreting rightly this extraor-
dinary caution at this time to proceed from the
vigilant care he had of the whole state,. more
than of his own person, which could not but
have all perished together, if this desiimment
had succeeded, he thought good to dissemble
still unto the king, that there had been any just
cause of such apprehension ; and, ending the
purpose with some merry jest upon this sub-
ject, as his custom is, took bis leave for that
time. But, though lie seemed so to neglect it
lo his majesty, yet, his customable and watch-
ful care of the khi£ and the stale still boiling
within him, and having, with the blessed virgin
Mary, laid up in his heart the king's so strung*

199] STATE TRIALS, 3 James I. 1606.— The Trials qfthc Conspirators [200

judgment and construction of it, he could not
lie at rear, till he acquainted the foresaid lords
what had parsed between the king and him iu
private. Whereupon they were nil so earnest
to renew again the memory of the same pur-
pose to his majesty, that it was agreed, that he
should the next day, being Saturday, repair to
hi* highness; which he did in the same pi ivy
gallery, uud renewed the memory thereof, the
lord chamberlain then being present with the
king. At which time it was determined. Thar
the said lord chain bei lain should, according to
his custom and office, view all the parliament-
hou-cs, both above and LeloW, and consider
whut likelihood or appearance of any such
danger might possibly be gathered by the sight
of them : But yet, as well for btaying oF idle
rumours, as for being the more able to discern
any mystery, the nearer that things were in
readiness, his journey t hither was ordained to
be deferred till the afternoon before the sitting
down of the parliament, which was upon the
Monday following. At which time he (accord-
ing to this conclusion) went to the parliament-
house, accompanied with my lord Montcagle,
being, in zeal to the king's service, earnest and
curiou* to see the event of that accident,
whereof he had the fortune to be the first dis-
coverer ; where, having viewed all the lower
rooms, he found, in the vault, under the upper
house, great store and provisiou of billets, fag-
cots, and coals; and, inquiring of Whyneard,
keeper of the wardrobe, To what usehe had

{>ut those lower rooms and cellais? lie told
liin, That Thomas Percy had hired both the
house, and part of the cellar, or vault, under
the same ; and that the wood and coal therein
were the said gentleman's own provision.
Whereupon, the lord chamberlain, casting his
eye aside, perceived a fellow standing in a
comer there, calling himself the said Percy's
man, and keeper of that house for him, but in-
deed wa* Ouido Fuwke*, the owner of that hand,
which should have acted that monstrous tragedy.
The lord chamberlain, looking upon all
things with a heedful indeed, yet, in outward
appearance, with but a careless and racklcss
eye, as became so wise an 1 diligent a minister,
ho presently addressed himsi-lf to the king in
the said privy gallery ; where, in the presence
of the lord treasurer, the lord admiral, the earls
of Worcester, Northampton, and Salisbury, ho
made his report what he had seen and observed
there; noting, that Montcagle had told him.
That he no *oo:h.t heard Thomas Percy named
to be the po**i:^-ir of that hou-c, but, consi-
derinir both his bacJ.wardncss in religion, and
th«'oId dc:.riie.'.f in friendship between himself
and the v»id Percy, he did t: really suspict the
matter, joi \ th-.-t'the htt.-r >hmfd come from
him. The said l.ird chamberlain also told,
That l:e did not wonder a little at the extraor-
dinary great provision of wood ;:nd coal in that
IiuUmC, where Thotnai Percy had so seldom oc-
<: isiou to renin in ; as likewise it gave him in
his mind, th:tt his man looked like a tcrv tall
and dcr-i'crau tVIIvw.

This could not but increase the king's former
apprehension and jealousy ; whereupon, he in-
sisted, as before, That the house was narrowly
to he searched, and that those billets and coals
should be searched to the bottom, it being
most suspicious, that they were laid there only
for covering of the pov. der. Of this same mind
also were all the counsellors then present ; but
upon tl>e fashion of making of the search was
it long debated : For, upon the one side, they
were all so jealons of the king's safety, that
they all agreed, That there could not be too
much caution used for preventing his danger;
and yet, upon the other parr, they were all ex-
treme loth and dainty, that, iu case this letter
should prove to be nothing but the evapora-
tion of an idle brain, then a curious search
bemg made, and noihing found, should not
only uini to the (general scandal of the king
and the state, as being so suspicious of every
light and frivolous toy, hut likewise lav an ill-
favoured imputation upon the carl of Nor-
thumberland, one of his majesrv's greatest sub-
jects and counsellors, this Thomas Percy being
his kinsman and most confident familiar. Ami
the rather were they curious upon this point,
knowing how far the king detested to be thought
suspicious or jealous of any of his good subjects,
though of the meanest decree ; and therefore,
though they all agreed upon the main ground,
which was to provide for the security of the
king's person, yet did they much riilfer in the
circumstances, by which this action might be
best carried with least din and occasion of
slander. But, the king himself still persisting,
that there were dhers shrewd appearances, and
that a narrow search of those places could pre*
judge no man that was innocent, he at last
plainly resolved them', That either must all the
parts of those rooms be narrowly searched, and
no possibility of danger left unexamined, or else
he and they all must resolve not to meddle in it at
all, hut plainly to go the next day to the parlia-
ment, and leave the success to fortune; which,
he believed, they would be loth to take upon
their conscience ; for, in such a case as this,
an half-doing was worse than no doing at all.
Whereupon it was at last concluded, That
nothing should be left unsearchc.d in those
houses ; and yet, for the better colour and stay
of rumour, in case nothing were found, it was
thought meet, that, upon a pretence of Why
neard's missing some of the kind's stuff, or
hangings, which he hud in keeping, all tho*e
rooms should he narrowly ripped for them.
And, to this purpose, was sir Thomas Kncvet,
(a gentleman of his majesty's privy-chamber)
employed, being a just ire of peace in West-
minster, and <.i:e, of whose ancient fidelity
both the h:te queen ami our now sovereign
have had large proof; who, according to the
trust committed unto him, went, about the
midnight next after, to the parliament -house,
accompanied with such a small number as
was Jit for that errand: but, before his entry
in the house finding Thomas 1'ercy's alledued
man standing without the door*, his clothes and

201]

STATE TRIALS, 3 James L 1C06— in tJie Gunpowder Plot.

[202

boots on, at so dead a time of the night, he
resolved to apprehend him; as he did, and
thereafter went forward to the searching of the
house, where, after he had caused to be over-
turned some of the billets and coals, he iirst
found one of the small barrels of powder, and
afterwards all the rest, to the number of 36
barrels, great and small ; and thereafter,
searching the fellow, whom he had taken,
found three matches, and all other insti uments
fit for blowing up the powder, ready upon him ;
vtuch made him instantly confess his own guil-
tless; declaring also unto him, That, if he
fed happened to be within the house, when j
ie took him, as he was immediately before (at
the ending of his work) he would not have
toiled to have blown him up, house and all.

Thus, after sir Thomas had caused the
wretch to be surely hound, and well guarded
bjr the company he had brought with him, he
himself returned back to the king's palace,
and gave warning of his success to the lord
Chamberlain, and earl of Salisbury, who imme-
diately warning the rest of the council, that lay
is the I »o use ; as soon as they could get them-
selves ready, came, with their fellow counsel-
lor*, to the king's bed-chamber, being, at that
time, near four of the clock in the morning.
And at the first entry of the king's chamher-
do-jr, the lord chamberlain, being not any
longer able to conceal bis joy for the prevent-
ion of so great a danger, told the king, in a
confused haste, that all was found and disco-
vered, and the traitor in hands and fast bound.

Then, order being first taken for sending for
the rest of the council that lay in the town,
the prisoner himself was brought into the house,
•here, in respect of the strangeness of the acci-
dent, do man was stayed from the sight, or
speaking with him. And, within a uhilc,after,
the council did examine him ; who, seeming to
pot on a Horn an resolution, did, both to the
(uuicil, and to every other person that spoke
*ith him that day, appear so constant and set-
tal upon his grounds, as we all thought we
fed found some new Mutius Scaivola born in
kctand. For, notwithstanding the horror of
delict, tin* guilt of his conscience, his sudden
mrprizing, the terror which should have been
ttark in him, by coming into the presence of
* grave a council, and the restless and con-
futd questions, that every man, all that day,
H v» him with ; yet wa.s his countenance so
&rfroin l»eing dejected, as he often smiled in
^vmful manner, not only avowing the fact,
Bf:t repenting only, with the said Scaevulu, his
failing jn the execution thereof, whereof, he
*-*lf the devil, and not God, was the disco-
■trer ; answering 'quickly to every man's ol»-
.fiion, *rottiii£ at any idle questions which
•ere propounded unto him, and jesting with
"vrh a> lit.' thought had no authority to examine
bra. All chat day could the council get no-
"tf^ out of him, touching his accomplices,
rttuMUg to answer to any such questions,
vlirh he thought might discover the plot, and
ii;..n^ all the blame upon himself; w hereunto,

he said, he was moved, only for religion and
conscience sake, denying the king to be his law-
ful sovereign, or the Anointed of God, in
respect he was an hcrctick, and giving himself
no other name, than John Johnson, servant to
Thomas Percy. But, the next morning, being
carried to the Tower, he did not there remain
above two or three days, being twice or thrice,
in that space, re-examined, and the rack only
offered and shewed unto him, when the mask
of hi* Roman fortitude did visibly begin to
wear and slide off his face ; and then did he
begin to confess part of the truth, and, there-
after, to open the whole matter, as doth appear,
by his Depositions immediately following.

The true Copy of the Deposition of Guido
Fa wees, taken in the Presence of the Coun-
sellors, whose names are underwritten.

" I confess, that a practice, in general, was
first broken unto me, against his majesty, for
relief of the Catholick cause, and not invented
or propounded by myself. And this was first
propounded unto me about Easter last was
twelve-month, beyond the seas, in the Low-
Countries, of the archduke's obeisance, by
Thomas Winter, who came, thereupon, with
me into England, and there we imparted our
purpose to three other gentlemen more, namely,
Robert Catesby, Thomas Percy, and John
Wright, who, all five, consulting together, of
the means how to execute the same ; and tak-
ing a vow, among ourselves, for secrecy,
Catesby propounded to have it performed by
gunpowder, and by making a mine under the
upper house of parliament; which place we
made choice of, the rather, because, religion
have been unjustly suppressed there, it waa
fittest that justice and punishment should be
executed there. — This being resolved amongst
us, Thomas Percy hired an house at Westmin-
ster for that pui pose, near adjoining to the par-
liament-house, and there we began to make
our mine, about the 11th of December, 1001.
— The five, that first entered into the work,
were Thomas Percy, Robert Catesby, Thomas
Winter, John Wright, and myseif, and, socn
after, we took another unto u>, Chiistopher
Wright, having sworn him aho, and taken
the Sacrament for secrecy. — When we caine
to the very foundation of the wall of the house,
which was about three yards thick, and found
it a matter of great duiiculty, we took unto us
another gentleman, Robeit Winter, in like
manner, with the Oath and Sacrament as
aforesaid. — It was about Christmas, when we
brought our mine unto the wall, and, about
Candlemas, wc had wrought the wall half
through: and, whilst they were iu \ diking, I
stood as sentinel, to descry any man that came
near, whereof I gaic them warning, and so they
ceased, until I gave notice again to proceed. —
All we Seven lay in the house, and hud shot
and powder, being rc-ohed to die in thatpldce,
before we should yield or be taken. — As they
were working upon the wall, they heard a
rushing in a cellar, of removing of coals;

103] STATE TRIALS, 3 J amei I. 1606.— TIic Trials of the Conspirators [204

whereupon we feared we had been discovered ;
and they sent me to go to the cellar, who find-
ing that the coals were a selling, and that the
cellar wns to be let, viewing the commodity
thereof for our purpose, Percy went and hired
the same for yearly rent. — We had, before this,
provided and brought into the house 20 barrels
of powder, which we removed into the cellar,
and covered the same witl^ billets and faggots,
which were provided tor that purpose. — About
Easter, the parliament being prorogued till
October next, we dispersed ourselves, and I re-
tired into the Low-Countries, by advice and
direction of the rest; as well to ucouuint Owen
with the particulars of the plot, as also, lest,
by my longer stay, I might have grown suspi-
cious, and so have come in question. — In the
mean time, Percy, having the key of the cellar,
laid in more powder and wood into it. I re-
turned, about the beginning of September next,
and, then, receiving the key again of Percy,
we brought in more powder, and billets to
cover the same again, and so I went, for a time,
into the country, till the 30th of October. — It
was further resolved amongst us, that the same
day, that this act should have been performed,
tome other of our confederates should have sur-
prised the person of the lady Elizabeth, the
king's eldest daughter, who was kept in War-
wickshire, at* the lord Harrington's hou'-e, and
presently have proclaimed her queen, having a
project of a proclamation ready for that pur-
pose ; wherein we made no mention of altering
religion, nor would have avowed the deed to be
ours, until we should have had power enough to
make our party good, and then we would have
avowed both. — Concerning duke Charles, the
king's second son, we had sundry consultations,
how to seize on his person : but, because we

to obtain pardon ; for, speaking of my tempo-
ral part, I may say, the fault is greater than
can be forgiven ; nor affecting hereby the title
of a good subject; for I must redeem my coun-
try from as great a danger, as I liuve hazarded
the bringing of her into, before I can purchase-
any such opinion ; only at your honours com-
mand I will briefly set down my own accusa-
tion, and how far I have proceeded in this bu-
siness: which I shall the faithfuller do, since I
see such courses are not pleasing to Almighty
God, and that ail, or the most material parts,
have been already confessed.

I remained with my brother in the country
from Alihallow's-tide, until the beginning of
Lent, in the -year of our Lord 160 J, the first,
year of the king's reign ; about which time Mr.
Cutesby sent thither, iutreating me to come to
London, where he, and other my friends, would
he glad to see me. I desired hiin to excuse
me ; for I found myself not very well disposed ;
and, which had happened never to mc before,
returned the messenger without my company. .
Shortly I received another letter, in any wise to
come. At the second summons, I presently
came up, and found him with Mr. John Wright,
at Lambeth, where he broke with me, how ne-
cessary it was not to forsake our country, for he
knew' I had then a resolution to go over, but
to deliver her from the servitude in which she
remained, or at least to assist her with our ut-
termost endeavours. I answered, that I bad
often hazarded my life upon far lighter terms,
and now would not refuse any good occasion,
wherein I might do service to the Catholic
cause ; but for myself, I knew no mean pro-
bable to succeed. He said that he had be-
thought him of a way at one instant to deliver
us from all our bonds, and without any foreign

found no means how to compass it, the duke ' help to replant again the Catholic religion; aud

being kept near London, where we. had not
f >rcc enough, we resolved 'to serve our turn
with the lady Elizabeth."

The Names of other principal persons, that
were made privy afterward* to this horrible
conspiracy. — Evcrard Dighy, knt. Ambrose
UooKwood, Francis Tresham, John Grant, Ro-
bert Key is.

Commissioners ; Nottingham, Suffolk, Wor-
cester, Devonshire, Northampton, Salisbury,
Marre, Dunbarr, Popham. — Edward Coke, W.
Waad.

And in regard, that, before this discourse
could be ready to go to the press, Thomas Win-
ter, being apprehended, and brought to the
Tower, made a Confession, in substance agree-
ing with this former of Fawkes, only larger in

withal told me in a word, it was to blow up the
Parliament-house with gunpowder; for said he,
in that place have they done us all the mischief,
and perchance God hath designed that place
for their punishment. I wondered at the
strangeness of tiie conceit, and told him that
true it was, this struck at the root, and would
breed a confusion fit to beget new alterations ;
but if it should not take effect, as mn.it of this
nature miscarried, the scandal would be so great,
which the Catholic religion might hereby sus-
tain, as not only our enemies, but our friends
also would with good reason condemn us. lie
told mc, the nature of the disease required so
sharp a remedy, and asked mc if I wuuld give
my consent. I told him Yc9, in this or what
else soever, if he resolved upon it, I would Ven-

souie circumstances : I have thought &>od to ' tare my life. But 1 proposed many difficulties,
insert the same likewise in this place, for the ; as want of an house, and of one to carry the
further clearing of tin* matter, and greater bene- ' mine, noise in the working, and such like. His

fit of the reader.

Thomas Winter's Coxfhssion, taken the
23rd of November 1605. in the presence
of the Counsellors, whose names are under-'
written,

u My most honourable lords; Not out of hope

I answer was, Let us give an attempt, and where
| it faileth, pass no further. But fu^t, quoth he,
because w e will leave no peaceable aud quiet
way untried, you shall go over aud inform the
Constable of the state of the Catholics here in
England,, iff treating him to solicit his majesty,
at liis coming hither, that the penal laws ma/

203]

STATE TRIALS, 3 James I. 1606 — in the Gunpowder Plot.

[200

be recalled, and we admitted into the rank of
his other subjects ; withal, you may bring over
some confident gentleman, such as you shall
understand best able for this business, and
named unto me Mr. Fawkes. Shortly after, I
passed the sea, and found the Constable at Ber-

rkn neur Dunkirk, where, by help of Mr. Owen,
delivered my message; whose answer was
that he had strict command from his master, to
do all good offices for the Catholics, and for
his own part, he thought himself bound in con*
science so to do, and that no good occasion
ikmld be omitted, but spoke to him nothing of
ibis matter.

Returning to Dunkirk with Mr. Owen,
we had speech, whether he thought the Con-
stable would faithfully help us, or no. He said
he believed nothing less, and tliat they sought
only their own ends, holding small account of
Catholics. I told him that there were many
gentlemen in England, who would not forsake
their country, until they had tried the uttermost,
tod rather venture their lives, than forsake her
in this misery. And to add one more to our
lumber, as a lit man both for counsel and exe-
cution of whatsoever we should resolve, wished
for Mr. Fawkes, whom I had heard good com-
mendations of; he told me the gentleman de-
served no less, but was at Brussels, and that, if
he came not, as happily he might, before my
departure, he would send him shortly after into
England. I went soon after to Osteod, where
sir William Stanley, as then, was not, hut enme
two days after. I remained with him three or
four days, in which time I asked him, if the
Catholics in England should do any thing to help
tbtroelves, whether he thought the archduke
*ou!d second them ? lie answered, No, for all
those parts were so desirous of peace with Fng-
Uad, as they would endure no speech of other
enterprise ; neither were it fit, said he, to set
tot project n-foot, now the peace is upon con-
dtding. I told him there was no such resolu-
tion, and so fell to discourse of other matters,
*tiH I came to speak of Mr. Fawkes, whose
fmpany I wished over into England ; I asked
rf t» sufficiency in the wars, and told him we
«Vxjtd need such as he, if occasion required ;
he gave very good commendations of him. And
ii«$ were thus discoursing, and ready to de-
part for Newport, and taking my leave of sir
William, Mr. Fawkes came into our company,
•ewlv returned, and saluted us. This is the
Gentleman, said sir William, that you wished
for, and so we embraced again. I told him,
•ome good friends of his wished his company in
England, and that, if he pleaded to come to
Dank irk, we would have further conference,
whither I was then going : so taking my leave
•f them both, I departed. About two days after
enme Mr. Fawkes to Dunkirk, where 1 told
hnn that we were upon a resolution to do some-
what in England, if the peace with Spain helped
ti not, but as yet resolved upon nothing; such
or the like talk we passed at Graveling, where
I lay for a wind, and when it sorted came both
» one passage to Greenwich, near which place

we took a pair of oars, and so came up to Lon-
don, and came to Mr. Catesby, whom we found
in his lodging; he welcomed us into England,
and asked me what news from the Constable.
I told him, Good words, but I feared the deeds
would not answer. This was the beginning of
Easter term ; and about the midst of the same
term, whether sent for by Mr. Catesby, or upon
some business of his own, up came Mr. Thomas
Percy. The first word he spoke, after he came
into our company, was, Shall we always, gen-
tlemen, talk, and never do any tiling? Mr. Ca-
tesby took him aside, and had speech about
somewhat to be done, so as first we might all
take an oath of secrecy, which we resolved within
two or three days to do ; so as there we met
behind St. Clement's, Mr. Catesby, Mr. Percy,
Mr. Wright, Mr. Guy Fawkes, and myself; and
having upon a Primer given each other the oath
of secrecy, in a chamber where no other body
was, we went after into the next room and
heard mass, and received the blessed sacrament
upon the same. Then did Mr. Catesby disclose
to Mr. Percy, and I, together with Jack Wright,
tell to Mr. Fawkes, the business for which we
took this oath, which they both approved.
And then was Mr. Percy sent to take the house
which Mr. Catesby in my absence had learned
did belong to one Ferris, which with some diffi-
culty, in the end, he obtained, and became, as
Ferris before was, tenant to Whinniard. Mr.
Fawkes underwent the name of Mr. Percy's*
man, calling himself Johnson, because his face
was the most unknown, and received the keys
of the house, until we heard the parliament
was adjourned to the 7th of February. At
which time, we all dqiarted several ways into
the country to meet again at the beginning of
Michaelmas term. Before this time also, it
was thought convenient to have a house that
might answer to Mr. Percy's, where we might;
make provision of powder and wood for the
mine, which being there made ready, should in
a night be conveyed by boat to the house by
the parliament, because we were loth to foil
that with often going in and out. There was
none that we could devise so tit as Lambeth,
where Mr. Catesby often lay ; and, to be keeper
thereof, by Mr. Catesby's choice, we received
into the number Keys, as a trusty honest mao ;
this was about a month beforo Mic-hut-lmas.

Some fortnight after towards the beginning
of the term, Mr. Fawkes and I came to Mr.
Catesby at Morcrofts, where we agreed that
now was time to begin and set things in order
for the mine. So as Mr. Fawkes went to Lon-
don, and the next day sent for me to come
over to him ; when I came, the cause was, for
that the Scottish lords were appointed to sit in
conference of the union in Mr. Percy's house.
This hindered our beginning until a fortnight
before Christmas, by which time both Mr.
Percy and Mr. Wright were come to London,
and we, against their coining, hud provided a
good part of the powder; so as we all live en-
tered with tools ht to begin our work, having
provided ourselves of baked-meats, the lest W

207] STATE TRIALS, 3 James I. 1606.'— -7fe Triah of the Conspirators [20$

need sending abroad. We entered late in the
nighry and we never saw, save only Mr. Percy's
man, until Christmas-Eve. In which time we
wrought uuder a little entry to the wall of the
parliament-house, and underpropped it, as we
went, with wood.

Whilst we were together we began to fashion
our business, and discoursed what we should do
after this deed was done. The first question
was, how we might surprise the next heir ; the
prince haply would be at the parliament with
the king hi* father, how should we then be able
to seize on the duke ? This burthen Mr. Percy
undertook, that by his acquaintance, he, with
another gentleman, would enter die chamber
without suspicion, and having some dozen
others at several doors to expect his coming,
and two ' or three on horseback at the court-
gate to receive him, he would undertake (the
blow being given, until which, he would attend
in the duke's chamber) to carry him safe awav;
for he supposed most of the court would ue
absent, ami such as were there not suspecting,
or unprovided for any such matter. For the
lady Elizabeth, it were easy to surprise her in
the country, by drawing friends together at an
hunting, near the lord Harrington's, and Ashby,
Mr. Catesby's house, being uot far otF, was a
fit place for preparation. — The next was for
money and horses, which if we could provide

tlurd time, opportunity was given to hire the
cellar in which we resolved to lay the powder
and leave the mine.

Now, by reason that the charge of maintain-
ing us all so long together, besides the number
of several houses, which, for several uses, had
been hired, and buying of powder, &c. had
lain heavy on Mr. Catesby alone to support, it
was necessary for him to call in some others to
ease his charge ; and to that end desired leave,
that he, with Mr. Percy, and a tlurd, whom
they should call, might acquaint whom they
thought tit and willing to the business; for
many, said ho, may be content that I should
know, who would not therefore that all the
company should be acquainted with their
names : to this we all agreed. — After this,
master Fawkes laid into the cellar (which he
had newly taken) a thousand billets, and five
hundred faggots, and with that covered the
powder, because we wight have the house free,
to suffer any one to enter that would. Mr.
Catesby wished us to consider, whether it were
not now necessary to send Mr. Fawkes over,
both to absent himself for a time, as also to
acquaint sir William Stanley and Mr. Owen
with this matter. We agreed that he should
(provided that he gave it them with the same
oath that we had taken before) viz. To keep
it secret from all the world. The reason, why

in any reasonable measure, having the heir ap- we dcsircM sir William Stanley should be ap-
parent, and the first knowledge by four or five ! qua in ted herewith, was, to have him with us
days, was odds sufficient. — Then what lords we j as soon as he could : and for Mr. Owen, lie
should save from the parliament, which was ' might hold good correspondency after, with fo*
first agreed in general, as many as we could ' reign princes. So Mr. Fawkes departed about
that were catholicks, or so- di -posed : but after I Easter for Flanders, and returned, the latter
we descended to speak of particulars. — Next, j end of August. He told me, that, wheu he
what foreign princes we should acquaint with arrived at Brussels, sir William Stanley was not

this before, or join with after. For this point
■we agreed, that first we could not enjoin
princes to that secrecy, nor oblige them by
oath, so to be secure of their promise; besides,
we knew not whether they will approve the
project, or dislike it. And. if they do allow
thereof, to prepare before might beget suspi-
cion ; and, n>t to provide until the business
were acted, the sauie letter that carried news
of the thing done, might as well intreat their
help and furtherance. Spain is too slow iu
his preparations, to hope any good from in the
first extremities, and liance too near and too
dangerous, who with the shipping of Holland,
we feared ot' all the world, might make away
with us.

But while we were in the middle of these
discourses, we heard that the parliament should

m i • • • i i * it « ■ t 1

returned from Spain, so as he uttered the mat-
ter only to Owen, who seemed well pleased
with the business, but told him, that surely sir
Willi.im would not be acquainted with any
plot, a* having business now a fool in the court
of Kngland ; but he himself would be always
ready to tell it him, and send him away as
soon as it were done.

About this time did Mr. Percy and Mr. Ca-
tesby meet at the Bath, where they agreed, that,
the company being yet but few, Mr. Catesby
should nave the others authority to call in,
whom he thought best ; by which authority he
called in after sir Kverurd Digby, though at
what time I know not, mid last of all roaster
Franci** Treslnun. The first promised, as I
heard Mr. Catesby say, fifteen hundred pounds;
J the second two thousand pounds; Mr. Percy

be anew adjourned until alter Michaelmas;! himself promised all he could get out of the

upou which tiding-;, we broke olf both, discourse
and working until after Christinas. About
Candlemas, we brought over in a bout the
powder which we hid provided at Lambeth,
am} laid it in Mr. Percy'* house, because we
were willing" to have all danger in one place. —
We wrought also another fortnight in the mine
against the stone wall which was very hard to
beat through ; at which time we called in Kit
Wright, and near to Easter, as wo wrought the

earl of Northumberland's rents, which warn,
about four thousand pounds, anil to provide
many gullopniitg horses, to the number of ten.
— Me;m while Mr. Fawkes, and myself alone,
bought some new- powder, as suspectiug the>
first to be dank, and conveyed it into the
cellar, and set it in order, as we resolved it
should stand. Then was the parliament a-new
prorogued until the fifth of November, so as
we all went dowu until some ten days before.

209]

STATE TRIALS, 3 James I. [60G.~ in the Gunpowder Plot.

[210

when Mr. Catesby came up with Mr. Fawkes
to an house by Enfield- Ch ace, called White-
Webbes, whither I came to tliem, and Mr. Ca-
tesby wiUed me to enquire, whether the young
prince came to the parliament. I told him, j
that I heard that his grace thought not to be l
there. Then must we have our horses, said j
Mr. Catesby, beyond the water, and provision i
of more company to surprise the prince, and
leave the duke alone. — Two days after, being
Sunday at ni^hr, in came one to my chamber,
and told me, that a letter had been given tcv
my lord Monteagle, to this effect : that he
wished his lordship's absence from the parlia-
ment, because a blow would there be given.
Winch letter lie presently carried to my lord
of Salisbury. — On the morrow I went to White-
Webbes, nnd tuld it Mf. Catesby, assuring
ban wkhal, that the matter was disclosed ;
and wishing him in any case to forsake his
country. lie told me, he would see further as
yet, and resolved to send Mr. Fawkes to try
the uttermost, protesting, if the part belonged
to himself, he would try the same adventure.
•—On Wednesday master Fawkes went, and
returned at night, of which we were very glad*,
—Thursday I came to London, and Friday
master Catesby, master Tresham, and I met at
Barnet, where we questioned how this letter
should be sent to my lord Monteagle, but could
not conceive, for master Tresham forswore it,
whom we only suspected. — On Saturday night
I met Mr. Tresham again in Uncotn's-Inn
walks ; wherein he told Mich speeches, that my
lord of Salisbury should use to the king, as I
pve it lost the second time, and repeated the
same to Mr. Catesby, who hereupon was re-
solved to be gone, but staid to have master
Percy come up, whose consent herein we
wanted. On Sunday Mr. Percy, being dealt
with to that end, would needs abide the utter-
most trial.

The suspicion of all bauds put us into such
confusion, as master Catesby resolved to go
down into the country, the Monday that mas-
Mr Percy went to Sion, and master Percy re-
tailed to follow tlie same night, or earlv the
text morning. About five of the clock, ocing
Tuesday, came the younger Wright to my
dumber, and told me, of a nobleman, called
the lord Monteagle, saying, Arise, and come
•long to Essex house, for I am going to call up
By lord of Northumberland ; saying withal,
the matter is discovered. Go back, master
Wright, quoth I, and learn what you can about
Essex eate. Shortly he returned, nnd said,
Surely all is lost ; for Jjepton is got on horse-
back at Essex door, and, as he parted, he ask-
ed, if their lordships would have any more with
him ; and being answered, No, is rode fast up
Fleet-street us he can ride. Go yon then,
quoth 1, to Mr. Percy, for sure it is for him
they seek, and bid him he gone, I will sruy and
see' the uttermost. Then I went to tlie court- '
gate*, and found them btraightly guarded, so as I
bo body could enter. From thence I went !
down towards the parliament-bouse, and, in

VOL. II.

the middle of King-street, found tie guard
standing, that would not let me pass. And,
as I returned, 1 heard one say, There is a
treason discovered, in which the king and the
lords should have been blown up. So then I
was fully satisfied that all was known, 'and
went to the stable, where my griding stood, and
rode into the country. Mr. Ctitrshy had ap-
pointed our meeting at Dunchurch, but I could
not overtake them until 1 came to my brother's,
which was Wednesday night. On Thursday
we took the armour at inv lord Windsor's, and
went that night to one Stephen Littleton's
house, where the next day', being Friday, us I
was early abroad to discover, my man came to
me, and said, that an heavy mischance had se-
vered all the company, for that Mr. Catesby,
Mr. I took wood, and Mr. Grant were burnt
with gunpowder, upon winch sight the rest dis-
persed. Master Littleton wished me to fly,
and so would he. I told him, I would first
see the body of my friend, and bury hiir,
whatsoever befel inc. When I came, i found
Mr. Catesby reasonable well, master i'ciiy,
both the Wright", Mr. ltookwood, and master
Grant. I asked them what they resolved to do.
They answered, We mean here lo die. 1 said
again, J would take such part as they did.
Alx)ut eleven of the clock came the company
to beset the house, and, as I walked into the
court, i was shot into the shoulder, which lost
me the use of my arm ; the next shot was the
elder Wright struck dead ; alter him the
younger Mr. Wright ; and fourthly, Ambrose
Rook wood. Then siid Mr. Catesby to me,
(standing before the door they were to enter)
Stand by ine, Tom, and we will die together.
Sir, quoth 1, 1 have lost the use oi my right
arm, and I fear that will (muse me to be takeiu
So, as we stood close together, Mr. Cate^y,
Mr. Percy, and myself, they two were >l»ot, as
far as I could guess, with oue bullet, and then
the company entered upon me, hint mc in the
belly with a pike, and gave me other wound*,
until one came behind, and caught hold of
both my arms. And so I remain, Yours, &c."

Commissioners; Nottingham, Suffolk, Wor-
cester, Devonshire, Northampton, Salisbury,
Marr, Dunbar, Pop ham. — Edw. Coke. W.
Waad.

The Names of those that were first in tike
treason, and laboured in the mine ; Robert
Catesby, Robert Winter, esqrs. Thomas
Percy, Thomas Winter, John Wright, Christo-
pher Wright, Guido Fuwkes, gentlemeu. And
Bates, Catesby's man.

Those that were made acquainted with it,
though not personally labouring in the mine,
nor in the cellar ; Event rd Diebv, km. Am-
brose Rook wood, Francis Tresham, esnxs.
John Gnuint, gent. Robert Kevos.

Rut here let us leave* Fawkes in a lodging fit
for such a guest, and taking time to advise
upon hi* conscience, and turn ourselves to that
part of the history, which concerns the fortune
of the rest of their partakers in that abomina-
ble treason. The iiev\s was no sooner spread

ill] STATE TRIADS, S James I. loofi.— The Trials of the Conspirators [212

but far more, in faith or justness of quarrel.—
And so, nrter that this Catholick troop bad
wandered a while through Warwickshire to
Worcestershire, and from thence to the edge
and bordei s of Staffordshire, this gallantly armed
bund had not the honour, at the last, to ne beat-
en with a king's lieutenant, or extraordinary
commissioner, sent down tor the purpose, but
only by the ordinary sheriff of Worcestershire
were they all beaten, killed, taken, and dispersed.
Wherein ye have to note this following circum-
stance so admirable, and so lively displaying the
greatness of God's justice, as it could not be
concealed, without betraying, in a manner,, the
glory due to the Almighty for the same. —Al-
though divers of the king's Proclamations were
posted down after these traitors with all the
speed possible, declaring the odiousness of that
bloody attempt, the necessity to have had Percy
preserved alive, if it had been possible, and the
assembly together of that rightly damned crew,
now no more darkened conspirators, hut open
and avowed rebels; yet the far distance of the
wa y,which was above an hum lred miles, together
with the extreme deepness thereof, joined also
with the shortness ol the day, was the cuuse
that the hearty and loving affections x>f the
king's good subjects, in those parts, prevented
the speed of his proclamations. • For, upon the
third day after the flying down of these rebeb,
which was upon the Friday next after the dis-
covery of their Plot, they were most them all
surprized by the slientY of Worcestershire, at
Hoiheech, ahout the noon of the day, and that
in manner following : — Graunt, of whom I
have mode mention before, for taking the great
horses, who had not, ail the preceding time,
stirred from his own house till the next morn-
ing, ufter the attempt should have been put in
execution ; he then laying his accounts without
his host, :is the proverb is, that their Plot had,
without foiling, received the day before their
hoped-for success; took, or rather stole, out
tho-c horses, as 1 said before, for enabling him,
and so many of that foulest society, that had still
remained in the country near about him, to make
a sudden surprise upon the king's elder daughter,
(he lady Elizabeth, having her residence nearby
that place, whom they thought to have used for
the colour of their treacherous design, Kb
majesty, her lather, her mother, nud male chil-
dren being all destroyed above, and to this pur-
pose, also, had that Niiurod, Digby, provided
his hunting-match against that same time, that,
uumbeis of people being nocked together, upon
the pretence thereof, they might the easilier
hare brought to pass the sudden turprise of her
person.

Now the violent taking away of those horses,
long before day, did seem to he so great a riot,
in the eves of the common people, that knew
of no greater mystery : And the bold attempt-
ing thereof did ingeiider such a suspicion of
some following rebellion in the hearts of the
wiser sort, as both great and small began to stir
and arm theiutefve*, upon thin outooked-for
accident. But, before twelve or sixteen bouts

abroad that morning, which was upon a Tues-
day, the fifth of November, and the first day
designed for that sessiou of parliament ; the
news, I say, of this so strange and unlooked-
for accident was no sooner divulged, but some
of those conspirators, namely, Winh r, and the
two brothers of Wright's, thought it high time
for them to hasten out of the town (for Catesbv
was gone the night before, and Percy at four of
the clock in the morning the same day of the
discovery) und all of them held their course,
with more haste than good speed, to Warwick-
shire toward Coventry, where the next day
morning, being Wednesday, and about the
frame hour that Fawkcs was taken in West-
minster, one Graunt, a gentleman, having asso-
ciated unro him some others of his opinion, all
violent papists, and strong recusants, came to
a stable of one Be no eke, a rider of great
horses, and, having violently broken up the
same, carried along with them all the great
horses that were therein, to the number of
seven or eight, belonging to divers noblemen
and gentlemen of that country, who had put
them into the rider's hands to be made fit for
their service. And &o both that company of
them uhich iled out of London, as also Graunt,
and his accomplices, met all togetlier at Dun-
church, at sir Everard Digby's lodging, the
Tuesday at night, after the discovery of this
treacherous attempt ; the which Digby had
likewise, for his part, appointed a match of
hunting, to have been hunted the next day,
which was Wednesday, though his mind was,
Niinrod-like, upon a kit other maimer of hunt-
ing, more beni upon the blood of reasonable
men than brute beasts.

This company, and hellish society, thus con-
vened, finding their purpose discovered, and
their treachery prevented, did resolve to run a
desperate course ; and, since they could not
prevail, by so private a blow, to practise, by a
public rebellion, either to attain to their intents,
or, at least, to save themselves in the throng of
others. And, tlierefore, gathering all the com-
pany they could unto them, and pretending the
quarrel of religion, having intercepted such
provision of armour, horses, and powder, as the
time could permit, thought, by running up and
down the country, both to augment piece and
piece their numher (dreaming to themschct,
that they had the virtue of a suow-ball, which,
being little at the first, und tumbling down
from a great hill, groweth to a great quantity,
by increasing itself with the snow that it meet-
eth by the way) and also, that they, beginning
first this brave shew, in one part of the coun-
try, should, by their sympathy and example,
stir up and encourage the rest of their religion,
in other parts of England, to rise, as they had
done there. But, when they had gathered their
force to the greatest, they came not to the num-
ber of fourscore ; and yet were they troubled, all
the hours of the day, to keep and contain their
own servants from stealing from them ; who,
notwkiistanding all their aire, daily left them,
being for inferior to Gideon's host in number,

213]

STATE TRIALS, 3 JauU I. 1600.— in the Gunpowder Plot.

[214

past, Catesby, Percy, the Winters, Wrights,
Kookwood, and the rest, bringing then the as-
surance, that their main Plot was failed and
bewrayed, whereupon they had built the golden
mountain of their glorious hopes : They then
took their last desperate resolution, to flock to-
gether in a troop, and wander, as they did, for
the reasons afore told. But as, upon the one
parr, the aealous duty to their God, and their
XHrereigii, was so deeply imprinted in the hearts
of all die meanest and poorest son of the peo-
|ae, although then knowing of no further mys-
tery, than such publick misbehaviours, ns their
fan eyes taught them, as, notwithstanding of
their fair sheus and preteuces of their Ca-
tholick cause, no creature, man or woman,
through all the country, would, once, so much
as give them, willingly, a cup of driuk, or any
ant of comfort or support, but, with execra-
tions, detested them : so on the other part,
the sheriff* of the shire*, through which they
wandered, conveying their people with all speed
possible, hunted as hotly after them, as the evil-
new of*the way, and the unprovidedness of
their people, upon that sudden, could pennit
them. And so at last, after sir Richard Ver-
se?, sheriff ot Warwickshire, had carefully and
Rraightly been in chace of them to the confines
of hu county, part of the meaner sort being
also apprehended by him ; sir Richard Walsh,
sheriff of Worcestershire, did likewise dutifully
sad hotly pursue them through his shire : And,
laving gotten sure trial of their taking harbour
at the house above-named, he did send trum-
peters and messengers to them, commanding
them, in the king's name, to 'render unto
him, his majesty's minister ; and knowing no
■roe, at that time, or their guilt, than was
publickly visible, did promise, upon their duti-
ful and obedient rendering unto him, to inter-
cede, at the king's hands, for the sparing of
(heir lives ; who received only, from them, this
scornful answer, they being better witnesses to
taeotselves of their inward evil consciences,
1 That he had need of better assistance, than of
1 those few numbers that were with him before he
'could be able to command or controul them/
fist here fell the wonderous work of God's
josttce, that, while this message passed between
the sheriff and them, the sheriff's and his peo-

ts hearts being justly kindled and augmented
their arrogant answer ; and so, they prepar-
ing themselves to give a furious assault, and
the other party making themselves ready, with-
in the house, to perform their promise by a
defence as resolute ; it pleased God, that, in
the mending of the lire, in their chamber, one
small spark should fly out, and light among less
than two pound-weight of powder, which was
(trying a little from the chimney ; which, being
thereby blown up, so maimed the faces of some
of the principal rebels, and l he hands and sides
uf otliers of* them, blowing up with it also a
great bag full of powder, which, notwithstand-
ing, never took fire, as they were not only
disabled and discouraged liereby, from any
farther resistance, in respect Catesby * himself,

Rookwood, Grant, and divers others of greatest
account among them, were, thereby, made
unable for defence, bur, also, wonderfully struck
with amazement iu their guilty consciences,
calling to memory, how God hud justly pu-
nished them with that same instrument, which
they should have used for the effectuating of so
great a sin, according to the old Latin saying,
' In quo peccemus,in eodciu plectimur;' as they
presently, (see the wonderful power of God's
justice upon guilty consciences,) did all fall
down upon their knees, praying God to pardon
them for their bloody enterprise; and, there*
after, giving over any further debate, opened
the gate, suffered the sheriff's people to rush in
furiously among them, and desperately sought
their own present destruction : The three spe-
cials of them joining bucks together, Catesby,
Percy, and Winter, whereof two, with one
shot, Catesby and Percy, were slain, aud the
third, Winter, taken and saved alive.

Aud thus these resolute und thigh aspiring
Catholicks, who dreamed of no less than the
destruction of kings aud kingdoms, and pro-
mised to themselves no lower estate, than the
government of great and ancient monarchies,
were miserably defeated, and quite overthrown
in an instant, fulling in the pit which they had
prepared for others ; and so fulfilling that sen-
tence, which his majesty did, in a maimer, pro-
phesy of them, in his oration to the parliament;
bouie presently slain, others deadly wounded,
stripped of ihcir clothes, left lying miserably
naked, and so dying, rather of cold, than of
the danger of their wounds ; and the rest, that
cither were whole, or but lightly hurt, taken
and led prisoners by the sheriff, the ordinary
minister of justice, to the Jul, the ordinary
place, even of the basest malefactors, where
they remained till their sending up to London,
being met with a huge confluence of people of
all sorts, desirous to' see them, as the rarest
sort of monsters : fools to laugh at them, wo-
men and children to wonder, all tlte common
people to gaze, the wiser sort to satisfy their
curiosity, in seeing the outward cases of so un-
heard of a villainy ; and,, generally, all sorts of
people, to satiate and fill their eyes with the
sight of them, whom, in their hearts, they so far
admired and detested ; serving so for a fearful
and publick spectacle of God's fierce wrath and
just indignation.

What, hereafter, will be done with them, in
to be left to the justice of ins majesty and the
state ; which, as no good subject needs to
doubt, will be performed in its own due time,
by a public aud exemplary punishment ; so hav«
we, all that are faithful and humble subjects,
great cause to pray earnestly to the Almighty,
that it wilt please him, who hath the hearts of

* Catesby, who whs the first inventor of
this treason in general, and of the manner of
working the same by powder, in special, himself
now first maimed with the blowing up of pow-
der, and, ncatt, he und Percy both killed with
one shot proceeding from powder.

213] STATE TRIALS, 3 James I. 160(3— The Trials of the Conspirators, ftr. [S10

all princes in his hands to put in his majesty's •
heurt, to make such a conclusion of this trage- .
dy to the traitors, hut tragicomedy to the king,
mid all his true subjects, as, tliereby, the glory
of Gud. unci his true religion, may be advanced;
the tuiuic security of the kiin:. and his estate, j

{■rocured and provided fnr ; all hollow and dis-
aim-M heart;*. di>o>\tml and pievented.'; and
this horrible attempt, lacking due epithets, to
l»e so jiiNtly avenged: that whereas ihey
thiHi^ht, by out* C-uttinlick indeed, and univer- I
Mil hlon. to accomplish theui^h i>t that Koniau '
tyrant, nho wished all the hodus, in Koine, to !
have l>nt one neck, and so, b\ the \iolent force
of potuier, to break up, a* with a petard, our ,
triple- locked peaceful j;ate« of J.ums, which, '
God lie i hanked, they could no! cinpass by
uuv other im*an> ; thev inav itistlv Ik- so re-
compcn>rd, for their tru'y xipemus intended *
pnruciJe, a> the shame ami infamy that, other- I
\mm\ would lit*lu upon thi* whole nation, lor
hawng unfortunately hatch* d such cockatrice-;
evys, may tie rvpaiicd, by t!ie execution of fa-
mous au.l honourable justice upon the offen-
der*, and so the kingdom pureed of them may,
hcrcaftt :-, }»erpettirilly houn>h in peace and
pro*|HTK). by the happy conjunction oi the
hearts «>f a!i lionot ;i:;d ime subjects, with
their ju>: and nl^io; s *oicniitn.

,\'.i I thus w!ierea* they thought to liave ef-
t icco our mcuiorics tlie memory of them shall
reman:, b i: to l lie r perpetual lufamy; and we.
as I «ui.i 1:1 the hc-senminc, sh.-.ii, \*:*ii aii thank-
f.aiu>», ttcri -;u!t pu^'rie the iinaiorf oi *o
Ktvat a it net-:. To which Ic% *u v -rood >«b-

|OCt Xs \ A UK It. •

Hie-e :* i:i the&d\ ohime ofli'c U.i?k.*».M:»-
ce.Ljni. p. Mo, a 11 *;ory oi tiio i«uiir»««idci'
Trc.»":i, CviaU'*. cu from 1.1:101;$ authors
I .:t :K* eiMipilcr *ce;r.» to bu»t nia Je no
u«c of K:.i£ Jai'u>*> Wot*. In :oc siiue
*o! srrc. i» H7. h <in Account oi t:*e Ar-
r»u:tv».:eiii a:*. J Kjl^ utu a of Pi shy. the
two W ::ur*. Grant. Kvkwwd. Ke*es,
JGifS *::d Johrwa alu > r.i»\k*s. 1; «a>
y ».. >;.*a 4t t3« tia:e. b*. : i* very c:d »;.:.c:
#u •■. *:.::f,.5. a ad ::j :. .irt of ;:, c\c<«: j«*r-
► *i» f.t \ Jo«:n^F is a; til * jrtc n.t^r^r.

"• N ■.«■*. -r:er :h.-:-0 — ictnra:. : zci JiuL:-
i-.< ■:. ;-.{^:". ...s r» i\\* T;.»«r. :!.«■!*
«"■•. } rv *.j:.:ed 1 1* ?..e Ti-uiso^. f. ..».•£:
c .v: >.*-:^ci jso Wi\;:-.> t e« x\e;e vi.-«*:. ?«: »
>: K..* "» v*^rviv-»-.tni. :-. -»r ■. ■ ;he*r. *:.". !Sei*-
*-^: L* i . ■• . :^.< ct *fWu :er. 0 ■«■-.:. a: ■: Ki:e**
or ■*..•» . L Vtv'c rv >-^«i. ' -i i-^ "•' i"\ 1:
wjr^r ;.» >tvji 0?". b : .\: > :: jf. l<: 1 & *:.-
ia . a;:o ^.. „-.. £ f »•- ac*- j=c-s "c!- i ". \ :l< nSZI-c.

•*t: ■•? l>^.y. .« auu. ^c s(, olv ufpk'C tc«.
«n4 a auiuy aacvvr. ]t«5 :-^^: d .-*rn <ie, l:
RMt dfean^e of" Bis. fcVg.trvtiA^oe.. l-oca **•. : :-
««ri ftmr ot iimt»x iLr h»» c\i- nr jrv« p-i_e
aj*Jfc»t;t«hrta«y ; »oc«u^MMdAa^ uuc he

forced himself to speak, as stoutly as he could,
his speech was not lone, aud to little good pur-
pose, only, that his belied conscience, being,
out indeed, a blinded conceit, had led him into
this otTence, which, in respect of his religion,
alias, indeed idolatry, he held no otVence, but,
in respect of the law, he held an otTmce, for
which, he asked forpveuess of God, of the
king, and the wlmle kingdom; and so, with
Tain and superstitious crosaiiii: of himself, be-
took him to his Latin prayers, mumbling to
himself, refusing to have any prayers oi any,
but of the Romish Ouhul.cks; went up toe
ladder, and with the help of the hangman,
made an end of shis wicked days in this world.

After him went Winter up to the scaffold,
where he used few words to any effect, without
aakme mercy of either Of id, or the kinc, lor his
o tie nee; went up tlie ladder, and, mtikui* a few
pravers 10 himself, staid not long lor his exe-
cution.

After him went Grant, who abominably
blinded with his horrible idolatry, though he
contested his otTence to be heinous, vet would
taiu have excused it by his conscience tor reli-
gion ; a bloody religion, to make so bloody a
conscience ; but better tluit his blood, and all
Mich as he was, should be shed by kie justice
of l.w. tiian the lilood of mam thousands to
have been shed by his Milainv, without law
or justice; but to tie parpese, hnvine used
a tlw uiie w-urds to ill eucct. he na>, as his tel-
io«r> Lei'.^e him. led tLe na\ to the halter;
and m\ attr l.> cn.?>in^ of ii:m>eif, to the last
p^it of ni* :r.i»jc(iy.

I^t-: .•[ t eui c«.:r.c iiitcs, who seemed sorry
for !-* iknerce. azui asked tcr^iveuess of God,
ard ti.e kin^, aud of ci.e wl..iie kiucioin ;
prave-i :o C^xl fjr the pre sedation of tbem
ai. a:*.d as he said, only lur his lore to htt
nia«:er. drawn t j torse*. i::s du:y u> (nxi. his
ki.-.c and country, ana > heretbrt w as now drawo
froti the Tower 10 $:. Paul's c.urcii-yard, and
there har£t-d an.i q£*r;?rc>i n:r his treachery.
Tr us tided :n*z d.iv"> busirTes>.

Tre ni:*t c^^« rciz:^ Fr.dav, we.e drawn
fr^ai tui- Tcwci 10 the iKd P-. ace ia West-
ic.:>ter. ^\tr-*£a:rs: tit- Pari:amcct-bouse,
Tron:j» "■V;.-.ier ;.' r y^up^er c.-vi-tr. Kock-
«. .co. K*}cs. a^i rV-wkes tLe r.;.n r. ju>riy
c.u.e».i. • t-«* IXt.i of t e Vaj'.e:" i-jr irid ht
::jt fcet » a «.v. .1 ;^ca.xatr. ; e Lau ::evtr con-
sXnrcd y.^ r:M^:!->os a :^:*c^l.u uwr l«vd cm-
[Hovw :n * -j .iT.i:»:i« j^ a.-;: or..

1-e s^.-^ *•-»>. t«:r^ F:...^i>. w^re drawn
• c-:i the V.^i.-. :■.• t:.s L'.i Y* a:* in Wrst-
« t . :.« : c r. 1 r^.* r. ■ > ^^ -. r : rr . K :<: i w .^ «i , Keves.

m

:o :i.T *<■— t .0. nude '«;*..e *r«.r\:- t -.: ?cen «c|T,
az'cs xsr l-. •* ;: w<rc. so -.7 * r .3 .»cencr.
t: i ^ ;: jr «<* r^ b:a*e^r. ?.♦ ti» u^a tas.^* were
*■-.-'-* :■. : b* :.*,,i tieii."* »tvccaa.e^ iu«u-.e
j.reici r.j ^e a w r^sd :n tus so1-!, -m" wbet be
-ail z».c yt" j. :"ol. teel ..■•*. rrc:e»t:i?c u> c* a
true V. iLi -!-'.•*, asaessai^: w^ a **r% rale
az'i >*^ai o:«jvt. wer.: up toe J^Kier, aad, aner
a 4*--^ cr two vzta a b^iccy ;o a

217]

STATE TRIALS, * James I. 1606.— Trial qf Henry Garnet.

[21*

block was drawn, and there quickly dis-
patched.

NeitJum carae Rockwood, who made a
apeech of some longer time, confessing his
offence to God, in seeking to shed blood,
sad asking therefore mercy of his Divine ma-
jesty; bis ofience to the king, of whose ma-
jtsty he likewise humbly asked1 forgiveness,
his offence to the whole state, of whom in
general he asked forgiveness ; beseeching God
to bless the king, the queen, and all his
royal progeny, and that they might long live to
eign m peace and happiness over this king-
dom. But la&t of all, to mar all the pottage
with one filthy weed, to mar this good prayer
with an ill conclusion, he prayed God to make
the king a cathohek, otherwise a papist, which
God for his mercy ever forhid ; and so, be-
seeching the king to be good to his wife and
children, protesting to die in his idolatry, a
Romish Catholick, he went up the ladder, and,
banging till he was almost dead, was drawn to
the block, where he gave his last gasp.

After him came Keyes, who like a desperate
villain, using little speech, with small or no
shew of "repentance, went stoutly up the lad-
der; where, not staying the hangman's turn,
he turned himself off with such a leap, that
with the swing he brake the halter, but, after
his fall, was quickly drawn to the block, and
there was quickly divided into four parts.

Last of all came the great devil of all,
Fawkes, alias Johnson, who should have put
fire to the powder. His body being weak with
torture and sickness, he was scarce able to go
up the ladder, but yet with much ado, by the
help of the hangman, went high enough to
break his neck with the fall: who made no
long speech, but, after a sort, seeming to
be sorry for his offence, asked a kind of for-
giveness of the king and the state for his bloody
intent ; and, with his crosses and his idle ce-
remonies, made his end upon the gallows
and the block, to the great joy of the be-
holders, that the land was ended of so wicked
a villainy/'

81. The Trial of Henry Garnet, Superior of the Jesuits in Eng-
land, at the Guildhall of London, for a High Treason, being a
Conspirator in the Gunpowder Plot : 4 Jac, I. 28th of March,
a. d. 1606.

iH£ Commissioners present were, sir Leo-
nard Holyday, Lord Mayor; the earls of Not-
tingham, Suffolk, Worcester, Northampton, and
Salisbury ; L. C. Justice of England, sir John
Pophum; the L. C. Baron of the Exchequer;
ur Christopher Yelverton, kt. one of his ma-
jesty** Justices of the Kings-Bench.

The substance and effect of (he Indictment
of Henry Garnet, superior of the Jesuits in
England, appeareth before in, the Relation of
the former Arraignment, and therefore un-
necessary to be repeated again; [S Co. Inst.
S7.] which Indictment was summarily and ef-
fectually repeated by sir Johu Croke kt. his
•oesty's Serjeant at law, in this manner :

Sir John Croke. This person and priboner
sere at the bar, this place, and thk present
occasion and action, do prove that true, which
the Author of all Truth hath told us; That
' nihil est occultum, quod non manifestabitur;
' et nihil e*t secretum, quod non revelabitur et
1 in palain veniet:' There is nothing hid that
ihall not be made manifest, there is nothing
Htret that shall not be revealed and come in
publick. And that God by whom kings do
reign, ' Consilium pravorum dissipat,' doth
tcatter and bring to nought the counsel of
the wicked. — That he spake with fear and tremb-
ling, and with liorror and nmayedncsg, against
that rotten root of that hideous and hateful
tree of treason, and of that detestable and un-
heard of wickedness, he did crave pardon for
it; affirming that no flesh could mention it
vkhout astonishment. — lie shewed that Henry
Gtrntt, of the profession of the Jesuits, other-

wise Wally, otherwise Darcy, otherwise Roberts,
otherwise Farmer, otherwise Philips, (for by all
those names he called himself) stood indicted
of the most barbarous and damnable treasons,
the like whereof was never heard of: That he
was a man ' inultorum nominum,' but not ' boni
' nominis ;' of many names, as appeared by tbe
indictment, but of no good name ; adorned by
God and nature, with many gifts and graces, if
tbe grace of God had been joined with them :
but that wanting, * quanto ornatior' in other
gifts * tanto nequior*. — That this Garnet (his
majesty summoning his parliament to be holden
at Westminster the 19th of March, in the first
year of his reign, and by divers prorogations
continuing it till the third of October last)
together with Catesby lately slain in open re-
bellion, and witli Oswald Tesmond a Jesuit,
otherwise Oswald Green well, as a false traitor
against the most mighty and most renowned
kiug our sovereign lord king James; the 9th
of June last, traitorously did conspire and com-
pass : To depose the kmg, and to deprive him
of his Government : To destroy and kill the
king, and the noble prince Henry his eldest
son : such a king, and such a prince; such a son
of such a father, whose virtuis arc rather with
amazed silence to be wondered at, than able
by any speech to be expressed : To stir sedition
aud slaughter throughout the kingdom: To
subvert the true religion of God, and whole
government of the kingdom : To overthrow the
whole state of the commonwealth. — The man-
ner how to perform these horrible Treasons,
the Serjeant said * llorreo diccre,' his lips did

tremble to speak it, but his heart praised God
for his mighty deliverance. The practice so
inhuman, so barbarous, so damnable, so de-
testable, as the like *hs never read nor heard
of, or ever entered into the heart of the most
wicked man to imagine. And here he said, he
coulii not but mention that religious observation
so religiously observed by his religious majesty,
wishing it were engraven in letters of gold, in
the hem ts of all his people ; the more hellish
the imagination, the more divine the preserva-
tion.— This Garnet, together with Catesby and
Tesmond, had speech and conference together
of these Treasons, and concluded most traitor-
ously and devilishly : That Catesby, Winter,
Fawkes, with many other traitors lately arraign-
ed of high-treason, woidd blow up with gun-
powder in the parliament-house, the king, the
prince, the lords spiritual and temporal, tlie
judges of the realm, the knights, citizens and
burgesses, and many other subjects and servants
of the king assembled in parliament, at one
Wow, traitorously and devilishly to destroy
them all and piecemeal to tear them in asun-
der, without respect of majesty, dignity, and
degree, age or place. — And for that purpose, a
great quantity of gunpowder was traitorously
and secretly placed and hid by these Conspira-
tors under the Parliament-House.

Tin's being the Substance and the Effect of
the Indictment, Gainetdid plead Not Guilty
to it ; and a very discreet and substantial Jury,
with allowance of challenges unto the prisoner,
ware sworn at the bar for the trial of him *.

To whom the Serjeant shewed that they
should have FAidences to prove him Guilty,
that should be « luci clariores/ that every man
might read them running. They should have
' testimonia rerum,* and • loquentia signa,' Wit-
nesses and Testimonies of the things them-
selves. * Reum confi ten tern/ or rather ' reoscon-
• fitentes, accusantes invicem.* That every one
may say unto him, * serva nequam,* thou wicked
subject, thou wicked servant, ' ex ore tuo te
' judico', of thine own month I jndge thee, of
thine own mouth I condemn thee. And this
shall be made so manifest by him that best can
do it, as shall stop the mouth of all contradic-
tion.

Attorney General. (Sir Ed. Coke.) Yotir
lordships may perceive by the parts of the In-
dictment which have been succinctly opened,
that this is but n latter act of that heavy
and woful tragedy, which is commonly called
the Powder-Treason ; wherein some have al-
ready played their parts, and according to
their demerits surfered condign punishment
and pains of death. We are now to pro-
ceed against this prisoner for the same trea-
son ; in which reNpect the necessary repe-
tition of some tilings before spoken, shall at
the least seem tolerable : for that * Nunqunm
' nimis dicitur, quod nunquam satis dicitur ;' It
is never said too often, that can never be said
enough. Nay, it may be thought justifiable
■ »*»■■' ■« ■■ ■ ■»■■ ■■ i—— —

• 5e« 3 Co. Inst 97,

•Trial qf Henry Garnet, a Conspirator [220

to repeat in this case ; for that in respect of
the confluence and access of people at the
former arraignment, many could not hear at
thut time: and yet, because I fear ic would be
tedious for the most of all my lords commis-
sioners, and of this honourable and great assem-
bly, were present at the arraignment, and for
that I am now to deal with a man of another
quality, I will only touch, and that very little,
of the former discourse or evidence; and that
little also shall be mingled with such new mat-
ter, as shall be worth the hearing, as being in-
deed of weight and moment : and all this with
very great brevity.

But before I further proceed to the opening
of this so great a cause, I hold it fit and neces-
sary to give satisfaction to two divers and ad-
verse sorts of men, who, according to the divers
affections of their hearts, have divined and con-
jectured diversly of the cause of the procrasti-
nation and delay of proceeding, especially
against this person : the matter wherewith he
stands charged being so transcendent and ex-
orbitant as it is. The first sort of these, out
of their hearty love and loyalty to their natural
liege lord and King, and to their dear country and
this state, have Feared the issue of this delay,
lest that others might be animated by such

f protraction of judgment, to perpetrate the
ike: for they say, and it is most true, ' Quia
' i.jn profertur cito contra malos sentcmiu, abs-

* que timore ullo filii hominum pcrpetrant mala;'
Because speedy justice is not executed against
wicked men, tho people without all fear com-
mit wickedness. And pity it were that these
good men should not be satisfy'd. The other
sort are of those, wfio in respect no greater ex-
pedition hath been used against this prisoner at
the bar, fall to excusing of him, as gathering
these presumptions and'conjectures : first, that
if he, or any of the Jesuits, had indeed been
justly to be touched with this most damnable
and damned treason, surely they should have
been brought forth and try'd before this time.
Secondly, That there was a bill exhibited in
parliament concerning this treason, and this
traitor, but that it was deferred and proceeded
not, for want of just and sufficient proofs.
Nay, Thirdly, There was a particular apology
spread ubroad for this man, and another gene-
ral for all Jesuits and priests, together with
this imputation, That king-killing and queen-
killing was no; indeed a doctrine of theiis, but
milv a fiction and policy of our state, thereby to
make the popish religion to be despised and in
disgrace.

Now lor these men, pity it were that the eve
of their understanding should not be enligli-
tcned and cleared, that so being by demonstra-
tive and luculcnt proofs convinced, they may
be to their prince and country truly converted.
First therefore concerning the delay, (though it
be true, ' Quod flugellatur in corde, qui lauda*

• tur in ore*) yet must I remember the great
pains of my lords the commissioners of his ma*
jetty's privy council in this cause : for Garnet
being first examined upon the 13th of the lost

221]

STATE TRIALS, 4 James I. 1006.— m the Gmpamder Plot.

[222

month, hath sithence been again examined
and interrogated above twenty several times,
which lasted to the 26th of March, within two
days of this arraignment. Touching the bill in
parliament, it was indeed exhibited before
Garnet was apprehended; bat his majesty's
gracious pleasure was, that albeit this treason
lie without all precedent and example, jet they
should quietly and equally be indicted, arraign-
ed, publickly heard, and proceeded withal in a
moderate, ordinary, and just course of law.
Concerning their apologies, and the fictions of
rtaffe (ns they term them), answer shall be
■ode, by God's grace, in the proper place,
when I come to lay open the plots and prac-
tices of the Jesuits, to the satisfaction of all
this honourable and great assembly. But first
I have an humble petition to present to your
lordships, and the rest of this grave auditory
for myself, in respect thai I am necessarily to
name great princes, yet with protestation and
caution, that no blot is intended to be laid
■pen any m£ them. I know there is ' Lex in
4 sermoue tenenda,' A law and rule to be ob-
Krved in speaking, especially in this kind ; and
that kings and great princes and the mighty
neo of this earth are to be reverently and re-
spectfully dealt withal : mid therefore I humbly
recommend unto you these considerations, con-
cerning this point of mentioning foreign states.
1st, Tnat the kingdoms were at tlmse times in
open enmity ^and hostility, and that might be
honourable at one time which was not so at
•aether ; so that hostile actions were then jus-
tifiable and honourable, as being in times of
hostility and war. 2dly, In these things it is
not the king's attorney that speaks, but Garuet
the Jesuit: as also that it proceedeth from an
inevitable necessity ; for that the examinations
ss well of this, as of the rest of the traitors,
cannot otherwise be opened and urged against
them : so is tlie mention of great men, by the
snpodency of tliese wicked tractors, woven
iaio their confessions, as tltey cannot be se-
TerecL — And with this comfort I conclude the
rrerace, That I hope in God this day's work,
■ the judgment ot so many as shall be atten-
tive and well disposed, shall tend to the glory
•f Almiglity God, the -honour of our religion,
the safety of bis most excellent majesty and
kit royal issue, and the security of the whole
commonwealth.

For Memory and method, all that I shall
speak may be contracted to two general heads.
1. I will consider die Offences, together with
certain circumstances, precedent before the
Ofteuce, concurrent with the Offence, subse-
(pKiit after the Offence. 2. I will lay down
some Observations concerning the same. — For
the proper name of this Offence, because I
aunt >peak of several Treasons for distinction
and separation of this from the other, I will
name it the Jesuits Treason, as belonging to
them both ' ex oangruo et condigno ;' they were
the proprietaries, plotters and procurers of it :
and in such crime* ' plus peccat author, quam
actor;' * the auther, or procurer, offendeth

more than the actor or executer:f as may ap-
year by God's own Judgment given against the
first sin in Paradise, where the serpent had
three punisluneuts indicted upon bun, as the
original plotter ; the woman two, being as the
mediate procurer ; and Adam but one, as the
party seduced. — Circumstances precedent and
subsequent so termed here, are indeed in their
proper natures all High-Treasons ; bat yet in
respect of the magnitude, nay moustrousness
of this treason, may comparatively, without
any discountenance to them in this case, he
used as circumstances. And because I am to
deal with the superior of the Jesuits, 1 will only
touch such 'treasons, as have been plotted and
wrought by the Jesuits, of whom this man was
superior ; and those treasons also sithence this
Garnet his coming into England ; whereof he
may truly say, ' Et quorum pars magna foi.'

The coming of this Garnet into England
(which very act was a treason) was about SO
years past, viz. in July 1586, in the 26th year
of the reign of the late queen, of famous and
blessed memory: whereas the year before,
namely the 27 th year of Elizabeth, there was a
statute made, whereby it was treason, for any,
who was made a Itouiish Priest by any autho-
rity from the See of Home, sithence the first
year of her reign, to come into her dominions :
which statute the Romanists calumniate as a
bloody, cruel, unjust and a new upstart law,
and abuse that place of our Saviour, * O Jeru-
' salem, Jerusalem, thou that killest the Pro-
' phets, and stonest them that are sent unto
' thee,&c.' Mat. xxiiLSf. to that purpose: but
indeed it is both mild, .merciful and just, and

f rounded upon the antient fundamental laws of
England, lor (as hath already in the former
Arraignments been touched) before the bull of
Ironius Pius Quintus, in the 11th year of the
queen, wherein her majesty was excommuni-
cated and deposed, and all they accursed who
should yield any obedience unto her, &c. there
were no recusants in England, all came to
church (howsoever popisidy inclined, or per-
suaded in most poiuts) to the same divine ser-
vice we now use ; but thereupon presently they
refused to assemble in our churches, or join
with us in pubhek service, uot for conscience
of any thing there done, agninbt which they
might justly except out of the Word of Goo,
hut because the pope had excommunicated and
deposed her majesty ,and cursed those whoshookl
ol>ey tier : and so upon this Bull ensued open
rebellion in the north, and many garhoils. But
see the event : now most miserable, in respect
of this Bull, was the state of liomiah recusants ;
for either they must be hanged for treason, iu
resisting their lawful sovereign, or cursed for
yielding due obedience unto her majesty. And
tlierefore of this pope it was said by some of
his own favourites, that he was * Homo piuset
* doctus, sed nimis eredulus ;' a holy and a
learned man, but over credulous ; for that he
was informed and believed that the strength «f
the Calholicksiu England was such, as was able
to have resisted the <j teen. But when the Bull

223] STATE TRIALS, 4 James I. 1606 — Trial qfllcnty Garnet, a Conspirator [224

was found to take such an effect, then was
there a dispensation given, both by Pius Quin-
tus himself, and Gregory the 13th, That all Ca-
tholicks here might shew their outward obedi-
ence to the queen, * ad redimenduui vexatio-

* nem, et ad ostendendam externam obedien-

* tiam.;' but with these Cautions and Limita-
tions : 1. * ltehus sic stantibus,' Things so
standing as they did. 2. Donee publica bulla;
' executio fieri posset ;' that is to say, They
might grow into strength, until they were able
to give the queen a mute, that the publick ex-
ecution of the said Bull might take place. And
all this was Confessed by Garnet uuder his own
hand, and now again openly confessed at
the bar.

In the 20th year of queen Elizabeth, came
Campion* the Jesuit and many others of his
profession with him, purposely to make a
Party in England for the Catholick cause, to
the end that the Bull of Pius Quintus might be
put in execution. And though all this while
recusancy, being grounded upon such a disloyal
cause, were a very dangerous and disloyal
thing ; yet was there no law made in that
behalf until the 23rd year of her majesty's
reign ; and that also imposing only a mulct or
penalty upon it, until conformity were offered
and shewed. Anno 26 Eliz. nunc Parry f with
a resolution from Cardinal de Coino, and
others, that it was lawful to kill her majesty, as
being excommunicated and deposed. Where-
upon her majesty entering into consultation
how (together with her safety, and the protec-
tion of her subjects) she mL-ht avoid the immi-
nent dangers, aud yet draw no blood from
these Priests and Jesuits, found out this mode-
rate and mild course as the best meant, to pro-
hibit their coming at all into her land ; there
never being any king who would endure, or
not execute any such persons, within their do-
minions, as should deny him to be lawful king,
or go about to withdraw his subjects from their
allegiance, or incite them to resist or rebel
against him. Nay, the bringing in of a Bull by
a subject of this realm against another, in the
time of Edward 1. was adjudged Treason. But
by the way, for that Garnet had exclaimed,
saying, Shew us where was your church liefore
Luther, design the place, name the persons,
and so foith ; it is answered by a comparison
of a wedge of pure gold, wlucb coming into the
hands ot impostors, is by their sophistications
and mixtures, for gain and worldly respects,
increased and augmented into ft huge body and
mass, and retaining still an outward fair sliew
and tincture of gold. Where is now the pure
gold, saith one, shew me the place ? 1 answer,
iu that mass ; but for the extracting thereof,
and purifying it froifl .dross, that must be
done by the art of the workman, and the trial
of the touchstone. So the true religion and
service of Almighty God, being for human res-
pects and worldly pomp, mixed and orerlnden
with a number of superstitious ceremonies and

1-1 - ' ' - . - ■ w—

• • See vol. 1. p. 1049. t Ibid. 1095.

inventions of man ; yet ever had God his true
church, holding his truth, which hath been by
skilful workmen, with the touchstone of the
Word of God, refined and separate from the
dross of man's inventions.

But to proceed : in the 28th year of queen
Elizabeth, being the year 1586, in June, came
Garnet into England, breaking through the
wall of treason ; being in truth, talus compn$itu$
ex proditwnt : and this was at that time when
the great Armada of Spain, which the pope
blessed, And christened by the uaine of * Ttie
Invincible Navy,' was by the instigation of that
high-priest of Home, preparing and collecting
together of many parcel**, out of divers parts,
where they could be bought, or hired, or bor-
rowed ; and therefore may be called a com-
pounded navy, having in it 158 great ships.
The purveyors and fore-runners of this navy
and invasion, were the Jesuits ; and Garnet
among them being a traitor, even in his very
entrance and footing in the land. But the
queeu with her own ships, and Iter own sub-
jects, did beat this Annada, God himself
(whose , cause indeed it wo*) fighting for us
against them, by fire, and seas, and winds, and
rocks and tempests, scattering all and destroy-
ing most of tbem : for ' offeuso creatore, orVeri-
* ditur omnis creatura,' The Creator being
offended, every creature is readily armed to-
revenge hi* quarrel : In which respect he is
called the Lord of Hosts. So that of 158,
scarce 40 of their ships returned to the bar of
their own haven ; and as it is reported, most
of them also perished : insomuch, that in this
respect, we may say of queen Elizabeth, as the
poet writ eth of the Christian emperor:
' O nimium dilecta Deo,cui militat aether,
* Et conjurati veniunt ad classica venti.'
Observe here, that about the time of this
invasion, there being in Spain met in consul-
tation about that business, the Cardinal of
Austria, the duke of Medina, count 1'uentes,
two Irish bishops, with sundry military men,
and amoogst other Winslade, an Englishman ;
the Irith bishops perceiving that they expected
a party of Cathohcks in England, resolved that
true it was, that it was not possible to do any
good here in England, unless there were a party
of Cutholicks made before-hand. But sucb,
said they, was the policy of England, us that
could never be elVected : for if any suspicion or
fear arose, the Catholicks should quickly be
either shut up, or quite cut off. Oh, saith an
old soldier there present, ' Hoc facit pro nobis,'
Tina makes for us ; for by that means their
souls shall go to heaven for their religion, their
'bodies to the earth fur their treasons, and
their lands and goods to us as conquerors: this
was indeed that they principally aimed at.—
Note here, that sithence die Jesuits set foot in
tins laud, there never passed four years with-
out a most pestilent and penlii ions tieason,
tending to the subversion of the whole state.

After that hostile Invasion in 88, the Jesuits
fell again to secret and treasonable practices :
for in the year 9», came Patrick Cullen, who

235]

STATE TRIALS, 4 James I. 160fl.—w the Gunpowder Plot.

[225

was incited by sir William Stanley, Hugh
Owen, Jaques Fraunces, and Holt the Jesuit,
and resolved by the said Holt to kill the queen;
to which purpose he received absolution, and
then the sacrament, at the hands of the said
Jesuit, together with this ghostly counsel, that it
was both lawful arid meritorious to kill her.
Nay, said Jaques, that base laundress's son,
(who was a continued practiscr both with this
CuUen and others, to destroy her majesty) the
Kate of Englaud is and will be so settled, that
unless mistress Elizabeth be suddenly taken
sway, oil the devils in Hell will not be able to
prevail against it, or shake it.

Now Cullen's Treason was accompanied
with a Book called ' Philopater/ written for
the abetting and warranting of such a devilish
act in general, by Cresswell the legier Jesuit in
Spain, under the name of Philopater.

Anno 94, came Williams and Yorke to the
same end, viz. to kill the queen ; being wrought
lo undertake so vile and detestable a fact by
lather Holt the Jesuit, and other his complices :
sad thereupon the said Williams and Yorke in
the Jesuits college received the Sacrament toge-
ther of father Holt, and other Jesuits, to exe-
cute the same. . And that treason likewise was
sccoropanyed with a book written by the legier
Jesuit ana rector of Rome, Parsons, under the
name of Doleman, concerning titles, or rather
tittles ; a leud and a lying book, full of fals-
hood, foreery, and malediction.

Anno 97, came Squire from Spain, to poi-
son her majesty, incited, directed, and war-
ranted by Walpole a Jesuit, then residing there ;
at whose hands likewise, after absolution, he
received the Sacrament, as well to put the
(•ractice in execution, as to keep it secret. All
ibe?e treasons were freely and voluntarily con-
fessed by the parties themselves under their
1 <mo hands, and y*?t remain extant to be seen.

In the year 1601, when practices failed, then
*at foreign force again attempted ; for then,
u in the former Arraignment hath been de-
dared, was Thomas Winter employed to the
king of Spain, together with Trsmond theJe-
tair, by this Garnet, who wrote his letters to
Arthur, alias Joseph Creswell, the only man
«aom I have heard of, to change his Christian
same, the legier Jesuit in Spain, for the further-
ance of that negotiation ; which was, us hath
been said, to offer the services of the English
Catholics to the king, and to deal further, con-
cerning an invasion, with promise from the Ca-
tholics here of forces, both of men and hoises,
to be in readiness to join with him. This ne-
gotiation, by the means of Creswell, to whom
Garnet wrote, took such effect, that the two
kingdoms standing then in hostility, the propo-
sition of the English Romish Catholics was ac-
cepted and entertained-; an army to invade, as
hacii been specified in the former Arraignment,
promised, and 100,000 crowns to be distributed
amongst Romanists and discontented persons,
•sling of a party in England, and for the fur-
therance of the s:tid service, granted. In the
mean time the king earnestly desired, Thut if
vol. j i.

the queen of England should happen to die, he ,
might receive present and ceitajn advertisement
thereof. — Now this Treason was accompanied
with the Pope's own writing : for now doth the
holy father cause to be sent hither to Garnet
two Briefs or Bulls, one to tho-clergy, and ano-
ther to the laity ; wherein observe the Title, the
Matter, the Time. The Tide of the one was,
' Dilectis Filiis, Principibus, ct Nobilibus Ca-
1 tholicis Anglicanis, Sa'lutein et Apostolicara,
' Benedictionem :' that is, To our beloved Sons
the Nobles and Gentlemen of England, which .
are Catholics, Greeting and Apostolical Bene-
diction. The Title of the other was, « Dilectis

* Filiis, Archipresbvtero, et reliquo Clero An-
■* glicano, &c.' To our beloved Sons, the Arch-
priest, and the rest of the Catholic Clergy.
The Matter was, that after the death of her ma-
jesty, whether by course of nature, or other-
wise, whosoever should lay claim or title to the
crown of England, though never so directly and
nearly interested therein, by descent and blood
royal; yet unless he were such an one as would
not only tolerate the Catholic (Romish) reli-
gion, but by all bis best endeavours and force
proi.iote ib, and according to the ancient cus-
tom would, by a solemn and sacred oath reli-
giously promise and undertake to perform the
same, they should admit or receive none to be
king of England : his words are these, ( Quan-
' tumcunque propinquitate sanguinis niterentur,

* nisi ejusmodi essent qui fidein Catholicam

* non niodo tolerarent, sed omni ope ac studio
' promoverent, et more majorutn jurejurando
1 se id pnestituros suscipcrent, &c.'

As for king James (at whom the pope aimed)
he hath indeed both propinquitatem and anti-
(juitatan re«alis sanguinis, propinquity and an-
tiquity of blood royal, for bis just claim and
title to this crown, both before and since the
conquest. To insist upon the declaration and
deduction of this point, and pass along through
the series and course of so many ages and cen*
turies, as it would be over long for this place,
so further 1 might herein seem as it were to
»ild gold : Only in a word, his majesty ib lineally
descended from Margaret the saint, daughter of
Edward, son of king Edmund, grandchild of
great Edgar, the Britain monarch. Which
Margaret, sole heir of the English-Saxon king,
was married to Malcojmc king of Scotland;
who by her had issue David the holy their king,
from whom that race royal at this day is deduced ;
and Maud the good, wife of the tirst and learn-
ed Henry king of England, from whom his ma-
jesty directly and lineally proceedctb, and of
whom a poet of that time wrote :

* Nee decor e flee it fragilcm, non sceptra su-
pcrham,

i Sola porens* htimilis, sola pudica derens.'
And lastly, his majt<ty roinelh of Margaret aUo
the eldest daughter of lltnry 7. #who was de-
scended of that famous union of those two fair
roses, the white and the red, York and Lancas-
» ter;p the effecting of which union cost the effu-
sion of much F.uulUii blood, o\ or and besides
fourscore tr thereabouts of the bljod royal.

227] STATlf TRIALS, 4- James I. 1600.— Trial of Henry Garnet, a Conspirator [22*

But a more famous union is by (he goodness of
the Almighty perfected in his majesty's persou
of divers lions, two famous, ancient and re-
nowned kingdoms, not only without blood, or
any opposition, but with such un universal ac-
clamation and applause of all sorts and decrees,
as it were with one voice, as never was seen or
read of. And therefore luost excellent king,
for to him I will now speak :

' Cum triplici fulvum conjungcleoneleonem,
' Ut varias atavus junxerat ante rosas :

' Majui opus varios sine pugna unire I tones,
' Sanguine quum varias cunsociusse rosas.'

These four noble and magnaniirlous lions, so
firmly and individually united, are able, with-
out any difficulty or great labour, to subdue and
overthrow all the Letters and Bulls, and their
calves also, that ha\ e been, or can be sent into
England.

Now fur the time, observe that these Bulls or
Briefs came upon the aforesaid negotiation of
Thomas Winter into Spain, at what time an
army should shortly after have been sent to in-
vade the land : And this was to be put in exe-
cution, ' quandocunquc contingeret miterum

• lllam fu?minaui ex h.ic \ita excedcre;' when-
soever it should happen that that miserable wo-
man, for so it pleased the high priest of Rome
to call great queen Elizabeth, should depart
this life. Was queen Elizabeth miserable r It
is said that ' Miseria constat ex duobus con-
' trariis, scilicet, copia et inopia ; ex copia tri-
' bulationis, et inopia consolationis.' Was she,
I say, miserable, whom Almighty CJod so often
and so miraculously protected, both ' from the

• arrow that flieth by day,* their great Armada,
' and from the pestilence that walketh in the
' darkness,' their secret and treacherous conspi-
racies? that did beat her most potent enemies?
that set up a king in his kingdom? that defend-
ed nations, and harboured and protected dis-
tressed people ? that protected her subjects in
peace and plenty, and had the hearts of the
most and the best of her subjects? that reigned
religiously and gloriously, and died C-hristinnly
and in peace ? Oh blessed queen, our late dear
sovereign, ' semper bonus noincnque tiuim lau-
4 desque manebuut.' But queen Elizabeth of
famous memory, (for ' Memoria ejus semper
' erit in bencdictione') as a bright morning-star,
in fulness of time lost her natural light, when
the great and glorious sun appeared in our ho-
rizon. And now sithence the coming of our
great king James, there have not passed, I will
not say four, nay not two moirhs, without some
treason. First, in March 1603, upon the death
of her majesty, and before they had seen his
majesty's face, was Christ. Wright employed
into Spain, by Garnet, Cateshy, and Trishum,
to give advertisement of the queen's death, and
to continue the former negotiation of Thomas
Winter; and by him also doth this Garnet write
to Creswell the Jesuit, in commendation, and
for assistance and furtherance of his business.
As also on the 22nd of June following, was
Guy Fawkes teot out of Flanders, by Baldwin

the Jesuit, by sir William Staplcy and Hugh
Owen about the same treason ; and by letters
from Baldwin directed and commended to Cres-
well the legier Jesuit in Spain, for the procuring
of his dispatch, as in the former arraignment
hath been declared. — In the same June doth
.Garnet the Superior, together with Gerrard and
other Jesuits and Jesuited Catholics, labour not
only in providing of horses, which by Thomas
Winter and Christopher Wright, upon their se-
veral negotiations, they, in the names of all the
Catholics in England, had promised the king of
Spain, to assist and do him service withal, at
such time as the said king should send his forces
to invade, either at Mil ford Haven, or in Kent,
as hath before been shewed ; but also did, by
force of the said two Bulls or Britis, dissuade
the Romish Catholics from yielding their due
obedience to his majesty, for that he was not of
the Roman religion : contrary to the practice
of the true church and churchmen, that under-
go wars, ' ferendo, non feriendo/ with patience
not with strokes; their weapons being properly
1 orationes et lachrymal,* prayers and tears.

On the same June 9, which was in 1603, 1
Jac. brake out likewise the Treason of the Ro-
mish priests, Watson and Clarke, as also that
other of sir Walter Raleigh and others. But
the Jesuits seeing that the peace was now in
great forwardness, and having advertisement,
also, that the king of Spain did now distaste
their propositions, so that there was no further
hope left for force ; then fell they again to se-
cret practice. As for the bulls or briefs before
mentioned, when Catesby had informed Garnet
that king James was proclaimed, and the state
settled, they were by Garnet, as himself hath
ailirmed, burnt. But to proceed :

In March 1603, Garnet and Catesby (a
pestilent traitor) confer together, and Catesby
in general tellelh him (though most falsly), That
the king had broken promise with the catho-
licks, and therefore assuredly there would be
stirs in England before it were long. In Sep-
tember following, meets Catesby and Thomas
Percy: and after an unjust, hut a grievous
complaint made by Cateshy of the king's pro-
ceedings, for that contrary to their expecta-
tions, his majesty both did hold, and was like
continually to run the same course which the
queen before had held ; Percy presently breaks
forth into this devilish speech, That there was no
way but to kill the king, which he the said
Percy would undertake to do. But Catesby, as
being * \ersuto ingenio et profunda perhdia,' a
cunning, u wily, and a deep traitor, intending
to use this so furious and fiery a spirit to a
further purpose, doth as it were stroke him for
his great forward ne^, yet with sage and stayed
counsel tells him ; No loin, thou shalt not ad-
venture thyself to so small purpose : If thou
wilt be a traitor, there is a plot to greater ad-
vantage, and such a one as can never be dis-
covered, viz. the Powder- treason.

In January, in the 1st year of his majesty, Gar-
net took out a General Pardon under the Great
Seal of England of all treasons (which pardon

229)

STATE TRIALS, 4 James I. 1606.— in the Gunpowder Plot.

[230

his majesty of his grace granted to all men at his
first entrance into his kingdom) under the name
of Henry Garnet of London, gent, hut therein
be never used any of his * alias dictus,' W alley,
Farmer, or any other of his feigned names.
But Catesby fearing lest any of those whom he
had or should take into confederacy, being
touched in conscience with the horror of so
damnable a fact, might give it over, and en-
danger the discovery of the plot, seeks to
Garnet, (as being the superior of the Jesuits,
and therefore of high estimation and authority
amongst all those of the Romish religion) to
have his judgment and resolution in conscience,
concerning the lawfulness of the fact, tint
thereby he might be able to give satisfaction to
any who should in that behalf make doubt or
scruple to go forward in that treason. And
therefore Catesby coming to Garnet, pro-
pounded unto him the case, and nskcth, Whe-
ther for the good and promotion of the Catho-
lick cause against hereticks, (the necessity of
time and occasion so requiring) it be lawful
or not amongst many noccnts to destroy and
take away some innocents also. To this ques-
tion Garnet advisedly and resolvedly answered,
That if the advantage were greater to the
Catholic part, by taking away some innocents
together with many nocents, then doubtless it
should be lawful to kill and destroy them a)!.
And to this purpose he n Hedged a comparison
of a town or city which was possessed hy an
tneuiy, if at the time of taking thereof there
happen to be some few friends within the place,
they must undergo the fortune of the wars in the
general and common destruction of the enemy.
And this resolution of Garnet, the superior of
the Jesuits, was the strongest, and the only
bond, whereby Catesby afterwards kept and
retained all the traitors in that so abominable
and detestable a confederacy ; for in .March
following, Catesby, Thomas W inter, ar.fi others,
resolve upon the Powder-Plot : and Fuv.kesas
being a man unknown, and withal a desperate
person and a soldier, was resolved upon as lit
for the executing thereof, to winch purpose he
was in April following by Thomas Winter
fought and fetched out of Flanders into Knglnnd.

In May, in the ¥d year of his majesty, Catcs-
hj, Percy, John Wright, Thomas Winter, and
Fankes meet: And having, upon the hoh
evangelists, taken an onth of secrecy and con-
stancy to this effect :

• \ou shall swear by the blessed Trinitv,

'and by the sacrament you now mtrnosc to

' rcrcite. never to disclose directly or indirect I v,

• * *

• kv word or circumstance, the matter that

4 shall be proposed to you to keep secrc\ nor

' desist from the execution thereof, until the

' rest *f mil give you leave :'

TJicy all were confessed, had absolution, and
received thereupon the sacrament, by the hands
of Gerrard the Jesuit then present.

In June following, Catesby and Grecnwell
the Jesuit confer about the Powder-Treason.
And at Midsummer, Catesby ha\ing speech
with Garnet of the Powder-Treason, they said,

That it was so secret, as that it mu»t prevail
before it could be discovered. Then Garnet
seemed to desire that the Pope's consent might
be obtained : but Catesby answered, That he
took that as granted by the pope in the two
Bulls or Brieis before ; for that, said be, if it
were lawful not to receive, or to repel him, as
the said Bulls or Briefs did import, then is it
lawful also to expel or cast him out.

Upon the 7th of July, 160), was the parlia-
ment prorogued until the 7th of February.
And in November following, Thomas Bates,
being (as hath been declared more at large* in
the former arraignment) fetched in by Catesby,
his master, to participate in the Powder-Trea*
son, for better assurance of his secrecy, and
prosecution thereof, is by Green* ell the Jesuit
confessed, encouraged, and told, That being
for a good cause, he might and ought, not only
conceal it as committed unto him in secret by
his. master; but further said, That it was no
offence at all, but justifiable and good. — About
this time was Robert Kcyes taken into the con-
federacy, and by Catesby resolved of the law-
fulness thereof from the Jesuits.

On the Uth of December, they entered the
mine : and in March following, which was in
1605, w as Guv Tawkcs sent over to sir William
Stanley, with letters from Garnet to Baldwin
the leiricr Jesuit there, to take order, That
against the time of the blow, the forces might
be brought near to the sea-side, to the end
that they might suddenly be transported into
England" And there d.>*th Pawkes, hy consent
of the confederates, give Owen the oath of
secrecy and perseverance, and then acquaints
hiin with the whole treason: Who having been
a most malicious and iin etc rate traitor, greatly
applauded it, and nave his consent and counsel
for the furtherance thereof.

\\\ May 1C05, fell out certain broils in Wales
by the/UoniMi Catholicks; at what time also
Hoo'hMood was by Catesby acquainted with
the Powder-Treason, ar.d resolved of the law-
fulness of the fact by hiin as from the Jesuits.

Now doth Gurnet write to the Pope, That
commandment might come from his holiness,
or else from Aquaviva the gincralof the Je-
suits, for the staying of all commotions of the
Catholicks here, in Knjihmd, intending indeed
to set their v. hole rest of the Catholick ItomUh
cause upon the Powdcr-lMo?, and in the mean
time to lull us asleep in st airily, in renpect
of thf ir dissembled quictne«s and t» nionnsty ;
as also lest impediment might be oiftrtd to
this main plot hy reason of any suspicion of the
stirritii of PapMs, or of iuquii\ after them
upon occasion of ae\ petty commotions or
broils. But when he further desired, that it
might be h> enjoined upon censures, that lat-
ter request was not granted, lest it might in-
deed be an impedim* ut to the Powder-Plot.

\\\ June following doth Green well the Jesuit
consult with Garnet lis Mipcrior, of the whole
course of the Powder- Tieason at large; wherein
observe the politick mid Mihtlc dea>ing of this
Gurnet. Fir*t, he would not, as he saith,

231] STATE TRIALS, 4 James I. 1606 Trial qf Henry Garnet, a Conspirator' [232

confer of it with a layman, (other than Catesby
whom he so much trusted) why so ? Because
that might derogate from the reverence of his
place, That a Jesuit and a superior of them,
should openly join with laymen in cause of so
much blood. And therefore, secondly, as he
would consult of it with a priest and a Jesuit,
one of his own order, and his subject ; so for
his further security, he would consult thereof
with ( /ret n well the Jesuit, as. in a disguised
coufcsaioii. And being informed that the dis-
course would be too long to repeat kneeling, he
answered that he would consult with him of it in
confession walking; und *o accordingly in ah
ambulatory confession, he At large discoursed
with him of iln» whole plot of the Powder-
Treason ; and that a prottctor, after the blow
given, should be cho>en out of such of the no-
bility as should be warned and reserved.

In this month likewise was there a great
conference and consultation betwixt Garnet,
Catesbv, and Francis Treshani, concerning the
strength of the Catholicks in England, to the
end that Garnet might by letters send direct .
advertisement thereof to the Pope; for that his
holiness would not be brought to shew his in-
clination concerning any commotion or rising
of the Catholick party, until such time as he
should be certainly informed that they had
sufficient and able force to prevail.

And in August following, Garnet in a con-
ference had ab >ut the acquainting of the Pope
with ihe Powder-Tieason, named and appoint-
ed sir Edmund Bay nam for to carry that mes-
sage to the pope ; yet not to him as pope, but
to him as a temporal prince : and by him doth
Garnet write letters in tint beh-df; as also for
staving of commotions, under pain of censures,
well knowing that before his letters could be
answered, the house of parliament, according
to their designs, should have been blown up,
and the whole slate overthrown. But this
trick he used like a thief, that going to steal
and take partridges with a setting-dog, doth
rate his dog for. questing, or going too near,
until he hath laid his net over them, for fear
the game should be sprung, and the purpose
defeated.

In this month al*o doth Garnet write to
Baldwin the legier Jesuit in the Low-Countries,
in the behalf of Catesby, that Owen should
move the marquis for a regiment of horses for
him the said Catesby ; not with any intent, as
it was ugteed, that Caieshv should undertake
any such ciiargr, but that under colour of it,
horses and other necessaries mi^ht be provided
without Misp.rifin to furnish the triitors.

In September followim* doth Parsons the
Jesuit write to Garnet to know the particulars
of the project in hand, for the journey to St.
Winifred's well in this month, ft was but a
jargon, to have better opportunity, by colour
thereof, to confer and retire themselves to
those parts. — la October doth Garnet meet the
other traitors at Coughton in Warwick si lire,
which was the place of rendezvous, whither
tkey resorted out of all countries. — Upon the

first of November, Garnet openly prayeth for
the good success of the great action, concern-
ing the Catholick cause in the beginning of
the parliament : and prayer is more than con-
sent ; for ' Nemo orat, sed <pii sperat et credit/
He in the prayer used two verses of a hymn,
' Gentem auferte pe'rlidam credentium de fini-
( bus ut Christo laudes debitas persolvauius ala-
* enter.'

Now was the Letter with the lord Montea-
gle, * whose memory shall be blessed, on the
4th of November ; hy the providence of the
Almighty, not many hours before the Treason
should liave been executed, was it fully disco-
vered.

On the 5th of November, being the time
when the Traitors expected that their devilish
practice should have taken effect, they con-
vented at Duuchurch, under colour of a great
hunting-match, appointed by sir Everard Digby,
as being a man of quality and account there-
about; purposing by this means to furnish
themselves with company for their intended
insurrection and rebellion : for that men being
gathered together, and a tumult suddenly
raised, the traitors thought that every or most
of them would follow the present fortune, and
be easily persuaded to take part with them ;
and that they might easily surprize, the person
of the lady Elizabeth, then being in those
part«, in the lord Harrington's house.

Upon the 0th of November, early in the
morning, Catesby and the said confederates dis-
patched Tho. Bates with a Letter to Garnet
the superior of the Jesuits, who was (as they
well knew) then ready at Coulton, near unto
them, earnestly entreating his help and assist-
ance for the raising of. Wales, and putting so
many as he could into open rebellion. At what
time Garnet and Greenwell (who then of pur-
pose was there with Garnet) then certainly
perceiving that the plot was indeed discovered,
and knowing themselves to be the chicfest au-
thors* thereof, prophesied the overthrow of the
whole order of the Jesuits ; saying, that they
feared that the discovery and miscarrying of
this practise, would utterly undo and overthrow
the whole society of the Jesuits. But Green-
well the Jesuit being carried with a more vio-
lent and fiery spirit, posteth up and down to
incite such as he could to rise up in open re-
bellion : and meeting in master Abington's
hou^e with Hall, another Jesuit, adviseth him
the said Hall likewise to lose no time, but forth-
with to seek to raise and stir up so many as he
could ; but Hall seeming to deliberate thereof,
whether seeing no end of so rash an attempt,
or feariug by that means to be himself appre-
hended, Tesinoud told him that he was a fleg-
matick fellow : and said, a man may herein see
the difference betwixt a fiegntatiek man (such
as he meant Hall was) and a cholerick, as he
said himself was : and further added, that he
was resolved to do his best endeavours for the
raising of a rebellion, under this false pretext
■ ■ ■ ■■■■■■■ ■

♦ See p. 19r,

233]

STATE TRIALS, 4 James I. 160G — in tlie Gunpowder Plot.

[234

and colour, that it was concluded that the
throats of all the catholics In England should
be cut; so persuading himself to incite them to
take arms for to stand upon their guard and
defence: and with this devise he posted away
into ,the county of Lancaster. Afterwards
Hall the Jesuit, otherwise called Oldcorn, being
urged by Humphrey Littleton with the evil
success of their intended Treason, that surely
God was displeased and offended with such
Moody and barbarous courses, instead of an
bumble acknowledgment of the justice of God,
sad a sense of the wickedness of the Treason,
fell rather Satanically to argue for the justifica-
tion of the same : and said, Ye must not judge
the caose by the event ; for the eleven tribes of
Israel were by God himself commanded to go
and fight against Benjamin, yet were they
twice overthrown : so Lewis of France fighting
against ibe Turk, his army was scattered, and
himself died of the plague : and lastly, the
Christians defending of Rhodes, were by the
Turks overcome. And these he applied to the
Powder-Treason, and persuaded Littleton not
to judge it ungodly or unlawful by the event.

Observe here a double consequent of this
Powder-Treason. First, open rebellion, as
bath been shewed both immediately before,
and more at large in the former arraignment ?
tad since that, blasphemy in Garnet the supe-
rior of the Jesuits ; for, he having liberty in the
Tower to write, and sending a letter (which
letter was openly shewed in the court before
aim) to an acquaintance of his in the Gate-
House, there was nothing therein to be seen
bat ordinary matter, and for certain necessa-
ries : but in the margin, which he made very
great and spacious, and underneath, where
there remained clean paper, he wrote cunningly
with the juice of an orange, or of a lemon, to
publish his innocency, and concerning his
usage; and there denieth those things which
before he had freely and voluntarily confessed :
sad said, that for the Spanish Treason, he was
freed by his majesty's pardon ; and as for the
Powder Treason, he hoped for want of proof
against him, to avoid that well enough : but
coocludeth blasphemously, applying the words
which were spoken of our blessed Saviour, to
himself in this damnable Treason* and saith,
' Xecesse est ut homo moriatur pro populo :'
'It is necessary that one man die for the
'people:' which words Caiaphas spake of
Christ. Wherein note his prevarication and
equivocation; for before the Lords Commis-
sioners he truly and freely confessed his Trea-
sons, being (as himself under his own hand
confesseth) overwhelmed ' tanta nubetestimn;'
and yet ' ad faciendum populum,' in his Letters
which he wrote abroad, he cleareth himself of
the Powder-Treason. And thus much con-
cerning the two circumstances subsequent,
which were rebellion and blasphemy.

The Circumstances concurring, are concern-
ing the persons both offending and offended.
For the principal peraon offending, here at the
bar, be is, as yon nave heard, a man of many

names, Garnet, Wally, Darcy, Roberts, Far-
mer, Philips : and surely I have not commonly
known and observed a true man, that hath
had so many false appellations : he is by
country an Englishman, by birth a gentleman,
by education a scholar, afterwords a corrector
of the common law print, with Mr. Tottle the
printer; and now is to be corrected by the
law. He hath many gifts and endowments of
nature, by art learned, a good linguist, and by

f>rofession a Jesuit, and a superior, as indeed
le is superior to all his predecessors in devilish
Treason ; a doctor of Jesuits, that is, a doc-
tor of five DD's, as dissimulation, deposing of
princes, disposing of kingdoms, daunting and
deterring of subjects, and destruction.

Their dissimulation appeareth out of their
doctrine of equivocation : concerning which it
was thought fit to touch something of that
which was more copiously delivered in the
former arraignment, in respect of the presence
of Garnet there, who was the superior of the
Jesuits in England, concerning the treatise of
equivocation seen and allowed by Garnet, and
by Blackwell the archpriest ; wherein, under
the pretext of the lawfulness of a mixt pro-
position to express one part of a man's mind,
and retain another, people are indeed taught
not only simple- lying, but fearful and damna-
ble blasphemy. And whereas the Jesuits ask,
why we convict and condemn them not for
heresy ; it is for that they will equivocate, and
so cannot that way be tried or judged accord-
ing to their words.

Now for the antiquity of equivocation, it is
indeed very old, within little more than three
hundred years after Christ, used by Arius the
here tick, who having in a general council been
condemned, and then by the commandment of
Constantine the emperor sent into exile, was
by the said emperor, upon instant intercession
for him, and promise of his future conformity
to the Nicenc faith, recalled again : who re-
turning lioine, and having before craftily set
down in writing his heretical belief, and put it
into his bosom, when he came into the presence
of the emperor, and had the Nicene faith pro-
pounded unto hiin, and was thereupon asked,
whether he then did indeed, and so constantly
would hold that faith, he (clapping his hand
upon his bosom where his paper lay) answered
and vowed that he did, and so would constant-
ly profess and hold that faith (laying his hand
on his bosom where the paper of his heresy
lay) meaning fraudulently (by way of equivo-
cation) that faith of his owu, which he ha<l
written and carried in his bosom.

For these Jesuits, they indeed make no vow
of speaking truth, and yet even this equivocat-
ing and lying is a kind of unchastity, against
which they vow and promise : For as it hath
been said of old, ' Cor linguae foederat natuna
' sanctio, veluti in quodam certo connubio :
* ergo cum dissonent cor et loquutio, senno
' concipitur in udulterio/ That is, The law
and sanction of nature, hath, as it were, mar-
ried tho heart and tongue, by joining and kn}tt*»

23j] STATE TRIALS, 4 James I. 1600*.— Trial of Henry Garnet, a Conspirator [230

ing of them together in a certain kind of mar-
riage ; and therefore when there is discord be-
tween them two, the speech that proceeds
from them, is said to be conceived in adultery,
and he that breeds such bastard-children of-
fends against chastity.

But note the heavy and woeful fruit of this
doctrine of equivocation : Francis Tie^ham be-
ing near hi* natural death in the Tower, had of
charity his wife permitted, for his comfort, to ''
come unto him : Who understanding that her
.husband had before directly and truly accused
Garnet of the Spanish treason, lest belike her
husband should depart this life with a coiisri- '
cuce that he had revealed any thing concerning !
the superior of the Jesuits, a very little befoie !
he died, drew him to this ; that his own hand
being so feeble as that he could not write him-
self,' yet he caused his servant then attending
on him, to write that which he did dictate, and
therein protested upon his salvation, That he
had not seen the said Garnet of 16 years he-
fore, and thereupon prayed that his former con-
fession to the contrary might in no wise take
place; and that this paper of his retractation
which he had weakly and dyingly subscribed,
might, after his death, be delivered to the carl
of Salisbury : Whereas master Garnet himself
hath clearly confessed the Spanish treason, and
now acknowledged the same at the bar ; and
he and Mrs. Fawkes, and others, directly con-
fess and say, That Garnet and Troluin had,
within two years space, been very often t-;iie-
ther, and also many times before : Hut, ' quSis
' vita, finis ita.' And ('timet himself, being at
the bar afterwards urged to miv what he thought
of such the departure of Francis Tresham out
of this life, answered only this ; I think he
meant to equivocate.

Thus were they stained with their own works,
and went a whoring with their own inventions,
as it is in the psalm. So that thi-, is indeed
* Gens perfidn/ according to the hymn, A
perfidious people; and tucrcfoic, 'Jurat?
' credc minus, non jurat? credere noli. Jurat,
' non jurat ho.-tis, ah h:»te ciw:.'

For l heir doctrine of deposing of prince*, Si-
manca and Philoputcr are plain, as tiatli in the
former arraignment been more amply declared,
and was now again at largo to Garnet's face
repeated: If a prince bean heretick, then is
he excommunicated, cursed, and deposed ; his
children deprived of all thejr right of succes-
sion, himself not to be restored to his temporal
estate upon repentance. And by an heretick,
they profess, that ho i; intended and meant,
namely, whosoever dolh not hold the religion
of the church of Rome. Nov, there is an
easier and more expedite way than all these to
fetch olf the crown from oil* the head of any
king christened whatsoever; which is this
.Thai ' Princept indulgcndo luereticis, amittit
mmmmm. * it nny prince shall but tolerate or

eth his kingdom. Nay,
of this usurped
-f Rome, oUcdged,
ft^ decretals; in

the very next title before that, there is ano-
ther decree that pusseth all w e have recited ;
wherein it i* shewed, that Zacharv the pope
deposed Childerick of France, for nothing else
l!ier" specified, ' sed quia inutilis,* but only for
thai he was reputed unprofitable to govern.

Now pr onccrning their daunting aud de-
terring of subject?, w l.ich is a part of the Je-
suits profession ; it weie good that they would
know and Mile nber, how that the most noble
and famous kin sis of 1 -upland never were afraid
of pope** bulls, no nor in the very midnight of
popery, as Kdwi.rd the Con lessor, Henry 1,
Edward 1, Uichard -2, Henry -1, Henry 5. cVc.
And in the tinu- <.l' Henry 7, and in all theif
times, the pope's legate never passed Calais,
hut staid thee, aud came not to England, un-
til he had taken a solemn oath to do nothing to
the detriment of the crown or state.

For the Persons offended, they were these :
1. The King, of win mi 1 have spoken often,
but never enough : A king of hi-ih and most
noble ancient descent, as hath been briefly de-
clared ; and in himself full of all imperial vir-
tues, religion, justice, clemency, learning, wis-
dom, memory, affability, and the rest. 2. The
Queen ; and she, in rtspi ct or her happy fruit-
fulness, is a great blessing, insomuch that of
herf in that respect, may be said, she is * Ortu,

* magna, viro major, sed maxima prole ;* great
in birth, greater in her marriage, but to all
poMcrity greatest, in the blessed fruit of her
womb, as having brought forth the greatest
prince that ever England had. 3. The noble
Prince, of whom we may say, with the poet,
' Qua? te tain lwta tulcrc secula ? Qui tanti ta-

* h:m genucre parentes ?' Never prince, true
lit-hxippurent to the imperial crown, had such
a father, nor ever king hail such a sou. 4.
Then the whole royal issue, the council, the no-
bility, the clergy, nay our religion itself, and es-
pecially this city of London, that i«> famous for
her richer, more famous for her people, having
above 500,000 soul* within her and her liber*
ties, most famous for her fidelity, and more
than most famous of all the cities in the world
for her true religiuii aud ten ice of (rod : Hold
up thy head, noble city, aud advance thvself,
for that never was thv brow blotted with the
least taint or touch, or suspicion of disloyalty :
Thou mavost truly say with the j*rophet David,
' I will take no wicked thing in hand, I ha^e

* the sin of unfaithfulm v, there shall no such
' cleave unto me.' Therefore lor thy fidelity
thou art honoured with the title of 'The King's
Chamber/ as mi inward place of hi* greatest
safety : And for thv comfort and jov tuis dav.
hath Britain's great kin.; honoured thee with
the proceeding up»»n thi- great and honourable
commission: nib r the heaw aud doleful ru-
rnnurs this other da;-, when it wa> ccitainly
known that king James wn3 in safety, well did
the fidelity of this city appear, (whereof I was
an eye-witness) • Una voce cone lainaverunt
' omnes, snlva Jjondinum, sulva patria, salva
1 rcligjo, Jacobus rex noster salvus ;* * Our

* city, our country, our religion is safe, for our
' king James is in safety J

337] STATE TRIALS, 4 James I. 1606.— in tlie Gunpowder Plot. [23$

The Observations arc many, and only in a 2. The second thing is, How this Treason
word to be touched : 1. That in the Spanish being long sitbence plotted, the Providence
treason before-mentioned, and this * Powder- of God did continually from time to time divert
treason, there was the same Order, Cause and aud put off the executing thereof, by unex-
Eod. The Order was, first, to deal by secret pected putting oiV the times of assembly in
practice and treusou, and then by force and in- pailiaraen*. For the parliament began the 19th
Tasion. The Cause which they pretend, was of March, in the first year of his majesty's
the Romish Catholick Religion. The End was feign, and continued till the 7th of July iollow-
the final destruction of the royal succession, ing, before which time the conspirators could
yea, even < occidere rognnm,' to overthrow and not be ready, from thence it was prorogued
dissolve the whole kingdom. 2. Note, that e\ en until the 7th of Feb. against which time they
the enemy hath acknowledged, that our state is could not make the mine ready, in respect that
» settled and established, as neither strength they could not dig there, for that the commis~
nor stratagem "can prevail, unless there be a sioners of the union sat near the, place, and the
party made in England. 3. We shall never wall was thick, and therefore they could not be
lave Bull more to come from Rome to Eng- provided before the 7th of Feb. ; and on the
and, because they shall never have a party 7th of Feb. the parliament was prorogued until
itroiig enough to encounter with so many lions, the 5th of October. After this, they found
4. All their canons, decrees, and new-found another course, and altered the place from the
doctrines tend to one of these two ends; either mine to the cellar. O blessed change of so
worldly pride, or wicked policy ; for the am- wicked a work ! Oh ! but these fatal engineer*
plitude and enlargement of the pope's autho- are not yet discovered, and yet all things are
rity, and for the safety of the Jesuits, priests, prepared. Oh prorogue it once more f And
Ace. 5. Obsen e that Baynam, a layman, ami accordingly, God put it into his majesty's heart
one of the damned crew, and so naming him- (having then not the least suspicion of any
self, was sent to inform the pope as a temporal such matter) to prorogue the parliament ; and
prince. 6. I conceive their fall to be near at further, to open and enlighten liis understand -
hand, both by divinity and by philosophy. For iug, out of a mystical and dark letter, like an
the first, there are now in England about 400 angel of God, to point to the cellar, and coin-
priests : so many were there in Israel in the mand that to be searched ; so that it was dis-
days of Ahab; < Who/ snith God, * shall go covered thus miraculously, but even a few
and deceive Ahab, that he may fall V A lying hours before the design should hare been
spirit in the mouths of his 400 prophets under- executed.

took and effected it ; their fall was near, when The Conclusion thereof shall be this ; * Qui

once a lying spirit had possessed the priests, 'cum Jesu ids, non itis cum Jesuiiis:' For,

according to the vision of Micheas, as it now ' They encourage themselves in mischief, and

hath possessed the Jesuits : 2dly, the imitation 'commune among themselves secretly, how

of good for the most part comes short of the ' they may lay snares, and say, that no man

pattern ; but the imitation of evil ever exceeds ( shall sec them. But God shall suddenly shoot

toe example. Now no imitation can exceed ' at them with a swift arrow, that they shall bo

this fact, and therefore their time is at an end. ' wounded: insomuch that whoso sccth it shall

7. Many condemn it now, that would hate ' ssjy, this hath God done; for ihey shall per-

commended it, if it had taken effect ; for this, ' ceivethat itis his work/

mj thev, is * E numero eorum quae non laudan- Tl * „ , _, c c -

*'•■'' _• > o in i' i • II , j hen were repeated the proofs for every of

tor nisi peracta. 8. They and their adherents ., ^ • , r .. * . . . J .

a *L i c i J *i l *i i • the particular accusations aforesaid, by the

spread abroad false rumours ; as that the kim; r , , . r ..'r/

T , , , . , *. . . express and voluntary confessions of Garnet,

Mould nave broken promise with them concern- \ cl i- *i i i r.

■ . • „' i- i • . r/« i« and of his comnlices themselves, and of two

Ac toleration : m hich mixture of God s service, ,-, , . .. .' , .

"T* „. , i i ir l iii credible witnesses sworn at the bar- and openly

ruber than he would sillier, he wou'd lose. , , _ . _ ^ , , . . J , * J

. .. ... , ,. y x- .• heard viva voce, and acknowledge! by Garnet

children, crown, lite, and all. Nay, they may ,■ ,r# , ' ■ , f- J

. ' . ,i , - r • . ' , * J himself to be men without exception,

tee there i* no such liope lefr, for tir.it his ma- *

jetty bringcth uji his royal i-sne iu the true Then Mr. Garnet having licence of the

fthgion and service of the Almighty. court to answer what he could for himself,

Lastly; Observe the wonderful Providence spake, and divided all which had been objected,

of God in the'a(hnirable Discovery of this S*i- to his remembrance, into four parts, vi/. Con*

perior Jesuit to be party to thi* Treason ; aud toining matter of, 1st, Doctrine. 2dly, Kocu-

that in two respects: 1. In rc>pe't of tin; suits 3dly, Jesuits* in general. 4thly, Himself

Beans of secrecy, used by him in conference in pellicular.

only with C:ittsby of the laitv. U. They had r-r, In Doctrine, he remembered two points:

* ttroug and a deep oath giwn them both for 1. Conccrnm*: lOjui vocation : whercunto he

secrecy and perseverance. 3. Th'-y hereupon answered, That their church condemned nil

feceived the holy .Sacrament. 4. They were lying, hut especially if it be in cause of religion

allowed and taught bv the Jesuits, to equivocate and faith, that being the most pernicious lye

■pon oath, salvation or otherwise: and ho-v of al! others and by St. AiiL'Ustinc rnndeinned

u>n should it be discovered ? 5. Their svcrel in the ITiM;ialliaiii>l? : nay, to l\e in any

intelligence was such, as that it was impossible cmi^u is' held a sin and cwl ; howsoever of

by the wit of wail to be found out. And ei^ht degrees which St. Au^ustiue znakcth, the

therefore,

lowest indeed is to lye for to procure the good
of some, without hurting of any. So then our
equivocation is not to maintain lying, but to
defend the u»e of certain propositions : for a
man may be asked of one, who hath no autho-
rity to interrogate, or examined concerning
something which belongeth not to his cogni-
zance who asketh, as what a man thinketh,
cVc. So then no man may equivocate, when he
ought to tell the truth, otherwise he may. And
so St. Augustine upon John saith, That Christ
denied he knew the day of judgment, viz. with
purpose to tell it to his disciples ; and so St.
Thomas and others who handle this matter,
chiefly under the title of Confession.

2. For the second point, which was the
power of the pope in deposing of princes, his
Answer was threefold. 1. That therein he
only propounded and followed the general doc-
trine of the church. 2. That this doctrine of
the power of the pope, was by all other Catho-
lick princes tolerated without grievance. 3.
That yet for his own part, he always made a
difference in the matter of excommunicating
and deposing of princes, betwixt the condition
and state of our king and of others, who having
sometimes been Catholicks, did or shall after-
wards full back. As for Simanca, and other
writers, whatsoever they' set down of the de-
posing of hereticks, it is to be understood of
those princes, who, having sometimes professed
the faith of the Church of Rome, do after-
wards make a defection from the same.

2dly, For Recusants ; 1 . I desire them not
to impute any offence or crime of mine, to the
prejudice of the cause of religion. 2. Con-
cerning their not going to church ; whereas it
was urged by Mr. Attorney, that the ground
of their not going to church, was the excommu-.
nication and Bull of Pius Quint us; and that
now they may go, for that his majesty is not
denounced excommunicate : I answer, That it
followeth not ; for the Arians and Catholicks
had the same service in their churches, yet
came they not together; and I know divers
myself, who, before that Bull, refused to go to
church all the time of (juecn Elizabeth, though
perhaps most Catholicks did indeed go to
church before. It was about the end of the
council of Trent, where this matter was dis-
cussed by twelve learned men, and concluded
not lawful. And this was occasioned, for that
Calvin himself held it not lawful fur any Pro-
tectant to be present, not only nt our muss,
wherein perhaps they may say there is idolatry,
but not at our even-song, being the same with
theirs.

Sdly, Concerning the Jesuits, he said, That
if any were privy to such horjible treasons,
it was impious, especially in men of their pro-
fession : but said, that he talked with some of
them about it, and that they denied it.

4thly, Touching myself, The Negotiation
into Spain was indeed propounded unto me,
and I was also acquainted with the negotiation
for money, but ever intended it should be be-
stowed for the relief of poor Catholicks : but

-Trial of Henry Garnet,, a Conspirator [240

when they were tliere, they moved for an army ;
which when they afterwards acquainted mo
withal, I«raisliked it, and said, it would be
much disliked at Rome : only I must needs
confess I did conceal it after the example of
Chris*-, who commands us, when our brother
offends, to reprove him, for if he do amend, we
have gained him ; yet I must needs confess,
that the laws made against such concealing, are
very good and just, for it is not fit the safety of
a prince should depend upon any other man's
conscience. So that I am verily persuaded, if
they yielded to me, it had been good : but what
their intent and meaning was, in desiring an
army, I knew not, and I was charged not to
meddle therein, no not with the money which
was to be sent for pensions, though it was to
maintain the Title of the king.

The Earl of Salisbury then demanded, To
maintain whose Title ?

Garnet answered, The Title of the king of
Spain.

The earl of Northampton asked him, Why he
did not oppose himself against it, and forbid it,
as he mi^ht have done ? For ' Qui cum possit
' non prohibet, jubet.'

Whereupon G arnct answered, That he might
not do it : and for sending of letters, and com-
mending some persons thereby, he confessed
he did it often, as thev were commended to
him without knowing either their purposes, or
some of their persons ; for he never knew Mr.
Wright, for whom he writ.

The earl of Salisbury then replied to Garnet,
I must now remember you, how little any of
your answers can make tor your purpose, when
you would seek to colour your dealing with
Baynam, by professing to write to Rome to
procure a countermand of conspiracies; and
yet you know, when he took his journey to-
wards Rome, the blow must needs have been
passed, before the time he could have arrived
to the pope's presence, (such being your leal
and his haste for any such prevention) as it was
about the 20th of our October when he passed
by Florence towards Rome.

To which Garnet made no great answer, but
let it pass : and then went on with his Defence
of sending Letters in commendation of many
of those with which he hud been formerly
charged, and so confessed that he had written
commendation of Fawkes, thinking that he
went to serve as a soldier, not knowing then of
any other purpose he had in hand. And as for
sir Edmund Baynam, what lie or Mr. Catesby
intended, he knew not in parjiculnr; only Mr.
Cutesby asked him in generul, the question of
the lawfulness to destroy innocents with no-
rm ts, ns had been before objected against
him ; which at first, I thought, said Garnet,
had been an idle question, though afterwards
I did verily think, he intended something that
was not good. Whereupon having shortly after
this, received letters from Rome, to prohibit all
insurrections intended by Catholicks, which
might perturb this state; Garnet informed
Cutesby thereof! and told him, That if he pro-

24!]

STATE TRIALS, * James I. 1606.— in tfc Gunpowder Plot.

[24*

eeeded against the pope's will, he could not
prevail : but Cntesht refused and said, lie would
not take notice of tlie pope's pleasure by him.
Notwithstanding, he shewed to Catesby the
general letter which lie had received from
Rome, but said he would inform the pope, and
tell Garnet also in particular, wlr.it attempt he
had in hand, if he would hear it; which after-
wards he offered to do, hut Gnrntt refused
to hear him, and at two several times re-
quested him to certify the pope what he in-
tended to do.

And when sir Edmund Baynain (as he pro-
tended) was to go over into Flanders for a sol-
dier, Garnet thought good to send him to the
pope's nuncio, and to commend him to other
friends of his, that they sliould send him to in-
form the pope of the distressed estate of Catho-
licks in England : the rather, that the pope
having a lay-mon there, might be acquainted
with all their proceedings; and that Bayoam
might then learn of the pope, what course he
would advise the Catholicks in England to take
for their own good : but wished Baynain in no
case f» use Garnet's name to the nuncio in
that behalf. .

Then were the two Witnesses called for ;
both of them persons of good estimation, that
wer-beard tlie interlocution betwixt Garnet
and Hall the Jesuit, viz. Mr. Fauset n man
learned and a justice of peace, and Mr. Jx>ck-
erson. But Mr. Fauset being not present, was
«ent for to appear; and in the mean time Mr.
Lockerson, who being deposed before Garnet,
delivered upon h\> oath, that they heard Garnet
say to JIall, They will charge me with my
Prayer for the good success of the ptvat action,
m the beginning of the Parliament, and with
J be Veibts which I added in the cud of my
Fiayer :

' Gentem nufertc pcrfidam
' Credeiititini de hnihus
' I?t Chriato luudts dchitas
' Persoivamtis alacriter.'
ft is true,* indeed, said Garnet, that I prayed
for tlie good success of that great action ; but I
wjII tell thorn, that I infant it in respect of
some sharper laws, which I feared they would
then makengainsti.'atholickb: and that answer
shall serve well enough.

Here Garnet replied, that for tlie two gen-
tlemen that haird the Interlocution, he would
not charge them with perjury, because he knew
flicm to be honest men ; yet l»e thought they
did mistake some things, though in the sub-
stantial parts, he confessed, he could not deny
their relation. And for the main Plot, he oou-
fe»ed, that he was therewithal acquainted by
Green well particularly ; and that Green well
c-uii* perplexed unto nim to njieii something,
which Mr. Cateshy with divers others intended :
to whom he said, He was contented to hear
by him what it was, so as he would not he nc-
knowa to Mr.' Catesby, or to any other, that
be wa* made privy to it. Whereupon father
GreenweH tild him the whole IMor, and all the
particulars ibereof, with which lie protested
vol. ii.

that he was very much distempered, and could
never sleep quietly afterwards, but sometimes
prayed to God, that it should not take effect.

lo that the earl of Salisbury replied, That
he should do well to speak clearly of his devo-
tion in tbat point; for otherwise he must put
him in remembrance, that he had confessed to
the lords, tliat he had offered sacrifice to God
for stay of that plot, unless it were for the good
of the Catholic cause ; nod in no other fashion
(said his lordship) was this state beholden to
vou for vour masses and oblations. Adding
thus much farther, That he wondered why lie
would not write to his superior Aquaviva, as
well of this particular Powder-Treason, as to
procure prohibition for other smaller matters.

Garnet faintly answered, he might not dis-
close it to any, because it was matter of secret
confession, and would endanger the life of di-
vers men.

Whereanto the earl of Northampton replied.
That that matter of confession, which before be
refused to confess, because he would save lives,
he confessed it now to endanger his own life ;
and therefore his former answer was idle and
frivolous.

Then Garnet told the lords, That he com-
manded Green well to dissuade Catesby, which
he thought he did ; and if Catesby had come
to hrm upon Alhullow-day, he thought he could
so for have ruled him, as he would have been
persuaded to desist.

Then said the c.irl of Salisbury, Why did
yon refuse to hear Cate»by tell you all the par-
ticulars, when he would have told you, if you
had been desirous to prevent It?

Garnet replied, That after Green well had
told him what it was which Catesby intended,
and tliat he called to mind what l.ate^by said
to him, at his first breaking with him in general
terms, his soul was so troubled with misiike
of that particular, as lie was loth to hear any
more of it.

Well then, said the ear! of Salisbury, you
see his heart: and then turning to the Lords
Commissioners, he desired leave of them, that
he might use some speech concerning the pro-
ceeding of the state in this great cause, from tl.e
first beginning until that hour; and so be pin
to this effect: That although the evidence had
lK?en so well distributed and opened by Mr.
Attorney* as he hail never heard such a mass
of matter better contracted, nor made more in-
telligible to the Jurv, to whom it was not his
part to speak, nor his purpose to meddle with
Mr. Garnet in ditinity, or in the doctrine c:f
equivocation, in which latter he saw how he
hud played his mastcr-prr/e; yet because he
had been particularly used in this sen ice with
other of the Lords Commissioners, by whom
nothing was more desired, next the gloiy of
(rod, than to demonstrate to the word, w.th
whit sincerity and moderation his majesty's
justice was carried in all points, ho would be
bold to say *-. me what ot the maimer of this ar-
raignment, and of the place where it was ap-
pointed. For tlie first, he said, Tliat seeing

R

2i3] STATE TRIALS, \ James 1. 1(306.-

thcrc. was nothing to which thi* state might '
morr ultribulc the infinite uooduess and bless- '
injjs ot (ioil, than to the [> rot ret ion of the true I
religion, which had p-oumd m> lon«i under (he .
bitter pernvutions of men of his profession ; '
he con fessed, that he hi Id himself greatly ho- |
uomed, to be an assistant amount so many '
great lords at the seat of justice, where God's
c> use should reecho so much honour, by dis-
crediting the person of Garnet, on whom the
common adversury had thought to confer the
usurpation of such an eminent jurisdiction:
for otherwise, wlio did not know, uint the qua-
lity of poor Henry Garnet might hate under-
tone a more ordinary form of trial, and haply
to some other place of lev* note and ohservu-
Uon ? And <o his lordship tin»k au occasion to
declare. That the city of London was so dear
to the kh'£« ami his majesty so desirous to give
it all honour ami comfort, as win n tins oppor-
tunity wa» pat into his hands, whereby there
lm^ht he made so Msihle an anatomy ot popish
doctrine, from whence tlicse t(casou> ka\e their
source and >upport, lie thought he could uot
rhusc a fitter sta^e than the city of London,
which was not orlv n^htlv termed, • The
Chamber of li.s F.iupire/ but was by his ma-
jesty esteemed as his greatest and safest trea-
»uiy ; who iKvountctn no riches comparable
to his suh'uv.s he ins, and acknowledccth that
such a circuit did ueicr contain x> many faith-
fel subjects w:th:ti the walls: a matter well ap-
pe.u:nc to his own eves am."!^: others, upon
i.:c decease \:i the Ia:e queen of precious me-
iii»-\, when he uueminj; most of »he pier* and
pn\wv»ui' severs vf th > ki^v/n. wK» were
wcomjMir.e.i w:;hi. * >ma:i i.umL-«r of nobie
a:u: :a ;t h:\il ten tleinu:, !-a-i set » ihtiu ;u» stated
t*.v»r.i e;.Cr\ n.L:;i[;'v £.i:«-* .•?" :!:> c::\, uut;i
tavy »:.wi puKvkiy licciariM w.;l: ore %o:Ci-.
that they w r..L\i .-.\i- ,i::J. u.i «::;i :re *.;ii£ • ■;:.-
soierc i".*. l.w:. IV \ju, tti« :\.vrt. Mr. Got;-*:,
(sj:.; i: e eari of \l:v .:;\ ::■■.>: I .>u ;re-»* n/.*-
s*-.\ .> : e :ua". ir. whom it J^pcrv:;. '. e>; Wi«."
h-»r.il.% :.eo,v.-..s Lne i*e< : t'jie-'ivi ;..»..;* r tie
i...i.::.e .»:' rei i.o;». wh.ch tcre: *:»rv rau i«*.::
Y+'.'* i.*tivu :' .- -i r-'iov : :o :.-**e a,.7.r.;-.£«L
%h:."-.: .ia:S L\.%.: :. e :.:u:.«:^ ■•:" ruLs* tcc^ue*.
»r.o n^\e .iiw;.y> s^'-.'iU :o j.r-'te ih* trut.T .i
Wj". Of *.•<£■• uiLHice:-: o.i.u",.:i.e* :' e sca:«t
■-> sc :t-/J-r, .-.* j.^j »f.» ;•*< %j^w. M~ C:-u-::w'C. .
t..»i; "...ex \ ■*.-' .ij?;tx:. ■*;•>. '■■.<»*•: : . Vi>-iCi.

* ■ ■

t.-—;. ^e "»%■■•.. :■«:*.•.. ji»e i«:\" j* »ei. ji>
te:o.'^ *" ■ jxv.:.. .*: ^ ■■■ ^.-. . -» a ■.:...>(.-

el:— i. I" : v -v. .-■ ■■. -S1.J ■ .. .

Wtfu r.i:^r. sue :lu: eu." „ -"*;■ :w s:.m ^l ■:•.»■
Cruie uC F.k;u;vvcaL:i:a t'«. ;i.*i"\'.i:< a::-: y.nr
kaffdnm* of o«nrc :.« aeuy a l:\».-^> . u: .; j^c
ke fixseoOKV. that rib» ;u:tr..'cuL..*: :i ^:u.>
aucvfttfiuil by ^cr\ j,j.-i.i£.u> v.' ?«
*• J)m z im CDdirbi Oua :^t jwmte HiUi«

i

"Trial qf Hairy Garnet, a Conspirator \2\4

roust have tx.'eii discovered otherwise by vio-
lence and coercion^ a matter ordiu:\ry <n other
kingdoms, tliough now for horn here : but k is
better as it is, tor the honour of the state, for
sou ere your own words, that you thought it
U'st to tell the truth at last, when you saw you
were conioimded tanta huIh list turn. In which
1 protest, that 1 do confidently assure myself,
that \ou would us easilv liaie confessed vour-
self to be the author of all the action, us the
concealer, but tit at his majesty and my lords
were well contented to draw all from vou
without racking, or any such bitter torments.

Then shaking to Garnet, lie said ; I pray
you, .Mr. Garnet, what encouraged Catesby
that lie ini^ht proceed, hut your revolt hu; hiui
in the first proportion : What warranted
Fa wkes Dul Gatesby's explication of Garnei's
arguments? as appears infallibly by Winter's
confession, and by Fa wkes, that they knew the
poiut had lu en resolved to Mr. Caiesby, by
the best ui>ti.uii;y.

Then Gurnet answered. That Mr. Catesby
was to LUine to make >uch application.

To thai me V-arl rc-pi.td, 'liiat he must needs
be buid witli liim, to drue I; in from the trust
he had, to satisfy t!ie world by ius denials, by
puttir^ hiiu in mind, how alter the interlocu-
tion bctnixt Inn and Lia*!, \M.tn he wascailed
before all the k-rds. and wa^ asktni. not what
he said, but w he: her ll.iii aiai he had confe-
rence together. dos.:ir.j h.m n »t to equa.\ix:ate ;
how st nil \ he dcuieii •( upoh in? »c.;i. reicerat-
vaz it wi;h s:i m.i:i_\ i.ii.:e?tat .t e\tcr.\tiOiia, as
the edr\ said. •: n.% inu i V v r hear; 5 to taar
hint ; uim \i: as >k,.i a> 11.-... ha.; c«tu't>s<d it.

*

he crew a*r:?.4iied, cr:t«i : o L^ro's u<er«.y. ard
sa;u. i«e hua o:;'c:a.-.ieJl it iMuirocatiwa *i«i :ivt
i.t.p Vuiu.

i .» si.:* (:*•■".: ?: -■•■c/v.i. T::a: "'/.i:; one is
.*.««ed a iy.:c>:.»»i: her. ■»«. a iL.A^;scri*:e. ::e w-i*
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pr.H.iuce»: a^ ■:■:•: n :*;. * ^u:.& r.-r*i» te.ut^r

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je»ty. .-.r.t r-e:^ ^ :z ^'. u^:u ■ ;" :i^e aiis*<r :.e
li; .*.:«. c-v.cfi:-: « :;.e e^^-:r.:nu.*.CiLL.?.- c-: *:'".>,
»;:*Tt:: r* re.ci-reti i.:ui>^.: : ■» :;-e c:>ri<>a '.»f

* N s 5ac.c: j rue—" :* a:iv cixu. ::.-t iiiS a«a-

1 !jcu :*.e >j«l kf Sai «l^rv ijioe i iiu de^j
c.x -lv. f;r :". . * ■*« : e :. r:. "^ ..*::.«:■ in co.*e

*:■■ l--.:..*c ;:.e *..'i's n. « ^>;y or i.ireat B*-*-
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> « . '. :'. . > * . . " : .■."■>.■ ,'.»i w '"ve, . 'Cx ,-c*o s
;_z:c. r - ■•-..•fc.: j.. v. a., c.wi? »«. - ? r.: icd*a to

3<^ >:."■; -^V > ... CvjS^". l~Jl »J> 1" : c- <tL.ess

: -:»i jr. .:«..: . : .■■-«.. :*i> a-j.-i^.-. ~<%u*i be
z»+ Ls*»: ' :iu. 4 \i\ •■ j.. e -«:'•. ■..■■.■■ a;. • -a. b«-

-caL* .: fc-^ai::- ' w e ^*<*.:*> -.^li- ; ard
»dtfii Je ;::-iersc..v"v: z a; cce p'|.«. ^a«i ccjS£«v1

215]

STATE TRIAU5, Uames I. 1006.— in the Gunpowder l>lot.

[246

To that it was said, That belike the pope
chinged his mind, when the king was so safely
possessed of his estate, and Garnet with his
complices began lo feel their own impiety, and
so as Catesby said to Percy, did resolve roundly
of that Treason, which would speed all at
once.

Then Garnet began to use some Speeches
that lie was nut consenting to the Powder-Trea-
son. Whereupon tlie earl of Salisbury said,
Mr. Garnet, give me but one argument that
j'ju were not consenting to it, that can hold in
any indifferent man's ear or sense, besides your
bare negative, but Garnet replied not.

Then Air. Attoruey-Gtneral spake in answer
to Garnet more particularly, to this effect :

1. For Equivocal i hi, it is true indeed, that
they do outwardly to the world condemn lying
aud perjury, because the contrary were too pal-
pable, and would make them odious to all men :
But it is open and broad lying and forswearing,
oot secret and close lying and perjury, or sweur-
iag a tukhood, which is most abominable, and
without defence or example. And if they allow
it not generally in others, yet at least in them-
selves, their confederates and associates in trea-
sonable practices they will both warrant and
defend it, especially when it may serve their
turn for such purposes and ends as they look
after.

2. Concerning the usurped power of the pope
iu deposing of princes ; neither is it the general
doctriue of the church, as he falsly said, neither
allowed or tolerated by all princes, who are
otherwise of their religion, as may appear out of
the French discourse written to the French king
against the re-adtnittiug of the Jesuitical fac-
tion. And whereas he would pick-a-thanke in
seeming to spare and exempt king James our
sovereign, it is not possible to avoid thoir dis-
tinction of being excommunicated de jure if
not de facto, howsoever it be true also, thai the
pope doth de Jucto curse all hereticks. For
recusants not going to church, the example of
i lie Catholicks not joining in service and prayer
with the A nans, who denied u main article of
ihc Christian creed, doth no ways hold, neither
can it agree to us, of w horn no such impious blas-
phemy can be shewed or imagined. That
Garnet said, he knew tome, who before the bull
came, went nob to church, it may be true per-
haps in some one or two perverted and perverse
men like himself; but whereas he produced the
council of Trent, as if tliere the matter had
been determined, and thereupon inferreth, that
after that all Romish Catholicks refused to
meet with us at Church in time of prayer, it is
a gross error : fur the last session of that coun-
cil was in the year of our Lord 1563, which
was in the fifth year of queen Klizabeth ;
whereas I shewed, and am able to justify and
prove, That their Romish English Catholicks
caue to our set vice in our churches until the
uineteenth year of her majesty, which was many
years niter that council was ended.

Concerning Garnet hinuelf; 1st, For that
answer of his, That he knew of the Powder-

Treason by confession, it is true which before
was spoken, that such acts as this is, Nan laud-
antur nisi per act a, are then only commended,
when they are performed : but otherwise, first,
Green well*s was no sacramental confession, foi
that the con fi tent wa& not penitent : nay,
himself hath clearly delivered under his hand
that the Powder-Treasou was told him, not
as a fault, but by wuy of consultation and
advice. 2dly, It was a future thing to be
done, and not already then executed. 3dlv,
Greenwell told it not of himself, that he should
do it, but of Fawkes, Percy, Catesby, Winter,
and others; and therefoie he ought to have
discovered them, for that thev were no conn-
tents. 4thlv, lie might and ought to have dis-
covered the mischief, far preservation of the
state, though he had concealed the persons.
5thly, Catesby told it unto him extra confes-
sionemf out of confession ; saying, they might
as well turn him out, as have kept him out.
Lastly, By the common law, howsoever it were
(it being crimen hcta Majcstatis) be ought to
have disclosed it.

Now, for that Garnet denied that he was a
principal author and procurer of this Treason,
but only that he had received knowledge there-
of; th?, contrary is clear and manifest, both
out of his own confessions, by himself acknow-
ledged, and apparently proved, in that he re-
solved Cateshy concerning the lawfulness and
merit thereof, and that he prayed for the good
success of the Powder-Treason, which is more
than either consultation or consent. Besides,
he must remember him of the oid versicle,

* Qui non prohibet quod prohibere potest cou-
' scutire \idetur.* Garnet might have com-
manded Greenwell, that told him of the Pow-
der-Treason, to have desisted, but did not : But
Greenwell went still on with the Treason, and
when it was disclosed, went into the country to
move rebellion, which doubtless he would never
have done, if Garnet had forbidden him ;
therefore, he said, he might say with the orator
Tuliy, ( Cui adsunt testimonia rerum, quid

* opus, est verbis?' Moreover, Mr. Attorney
added, how Garnet writ first for Thomas Winter,
then for Kit Wright, after that for Guy Fawkes,
then for sir Edward Bayuam, and afterwards
for Catesby, for a regiment of horse; and that
Garnet was for the Infanta, and by his briefs
intended to keep out the king, except he should
tolerate and swear to maintain the Romish
religion.

Then Mr. Attorney spake of the Interlocu-
tion hctwi:vt Garnet anil Hall, and said, That
in all their speeches they never named God,
nor confessed their innocency : But as soon as
they spake together, Hall spake first ; and then
Garnet said he suspected one, whose name
they that were set to overhear them, could not
hear, to have di^-losed something against them r
lint it may be otherwise, for he said he was
much subject to that frailty of su>picion. He
said he received a note from Ronkwood, that
Green we'll was gonu over seas; and another,
that Gerrard was gone to father Parsons, and

217] STATE TRIALS, 4 James I. \(m.— Trial of Hairy Garnet, a Conspirator [24S

that mistress Ann was in town, meaning mis-
tress Ann Fawkes, un>1 many other things were
by them uttered in that conference.

By this time came in Mr. Forsct, who being
deposed, atiirmed likewise, that their Examina-
tion, and the matter therein contained, were
true : saying further, that both of them took
notes ot that which they heard from Garnet
and Hall, as near as possibly they could, and
set down nothing in their Examinations, but
those things, wherein both their notes and per-
fect memories agreed and assented ; and that
many things that were very material, and of great
moment, were left out at' their examinations,
because both their notes and memories did not
perfectly agree therein.

And now one of the Letters, which were
written with sack, was shewed to the court ; by
which app cured that Hall and Garnet had in-
terlocution together. Mr. Attorney here in-
ferred that the necessity cud of justice was ut
pana ad paucos, mclus ad unities peridental ;
and urged the Examination of Garnet, where-
in he confessed tint when Tesmond alias
Green* ell, made relatiou to hiin of the great
blow by the Powder -Treason, who should have
the protection, Green well said, the lords that
should be left alive should chusc a Protector.
And further, Mr. Attorney urged the writing of
another letter, written with sack, to Sayer
alias Kookwood, a priest m the Gatehouse :
But of this point much is formerly mentioned.

Here Mr. Attorney ending, my lord of Nor-
thampton spake to the prisoner this Speech fol-
lowing :

Earl of Northampton. Though no man
alive cm be less apt or willing than myself, to
"add the least grain or scruple of improvement
to the weight of any man's calamity, that groans
under the heavy burden of a distressed stau?,
Vel gravatis addei e gravamina, whereof I have
as many witnesses as tlie world hath eyes ; yet
as the case stands now in this Trial, Mr. Oar-
net, between my dear sovereign, ex cujus spirt-
tut as one said of Alexander, nos omms spirit-
um ducimus ; and you that were so well con-
tent, to let the course of conspiracy run for-
ward to the stopping of this breath before the
time, which God by nature doth prescribe, be-
tween his honour and your error, his just pro-
ceedings and your painted shews, his sincerity
and your hypocrisy ; I could wish it possible
that in any person of some other quality, you
might hear the echoes of your un perfect and
weak answers, and thereupon judge more in-
differently and evenly of the true state of the
cause than you have done hitherto ; being dis-
tracted with tisir, or forestalled by prejudice,
or, to borrow your own phrase, which is more
proper to the point than any I ran u«e, op-
pressed Uinta tiube ttbtium, with so thick a
cloud of witnesses, as concur with one voice,
heart, and spirit,, for the confusion of your au-
dacity.

I confess that never any man in vour state
{ave lets hold or advantuge to examiners, than
yqu have done in the whole course of proceed-

ing to us that were in Commission ; sometime
by forswearing, as upon the Confession of Hall
your fellow ; sometime by dissembling, as
about tlie places of your rendezvous, which
was the Lapwing's Nest ; sometime by earnest
expostulation ; sometime by arliticial equivo-
cation ; sometime by sophisticating true sub-
stances ; sometime by adding fata qualities;
yet sat superest, as may appear, to the defeat
of yonr inventions, and the defence of the
king's majesty, quia magna ist ztritas, et pr«-
vulct.

Your parts by nature dimply considered and
in another person, would rather move compas-
sion, than exasperate humanity ; lor whom
would not the ruin of such a person touch, as
is in appearance temperate, and in understand-
ing ripe ? But our end at this time is the same
with Decius in l.ivy. nt quern vos obrutum rtli-
quistis ignem, &c. that we may q a nub that
fire by prevention, which you have only raked
up in ashes ; ut novum darct incendium7 that it
might cause a new combustion so soon os it
might hit upon matter that were fit and suita-
ble. Wherefore I must rather draw your an-
swers to the true touch for discharge of rumors,
than vcrbtrurt tier an, beat the air : For the
substance of all vour evasions and sly shifts, is
as the inn-keeper of Chalcus confessed of his
dishes to his guests, admiring tan tarn J'trculo-
rum dircrsitatem. that thev were only coin-
pounded of pork, howsoever your tine cookery
mav varv them.

The two Bull » that in the late queen's time
entered the laud (with a purpose by their loud
lowing to call all their calves together, for the
making of a strong party, nt the shutting up of
the evening, against your dread sovereign)
were grazed in your pastures, Mr. Garnet ; or
to speak more properly (because they durst
u either endure the light, nor admit the air)
they were stall- fed at your crib, as yourself
confess ; and therefore serve tieuuamt ex ore
tuo tcjudico. And what answer make you to
this ? Marry, that the purpose was imparted to
very few ; so much the uorse : For out of pu)>-
lication grows discovery ; and yet experience
hath justified, that those very few were the
very souls and spirits of that pack of conspira-
tors, and such as for want of patience and tem-
perance to tarry the time, whe* the game had
been brought to bearing, should have played
the chiefest parts in the late snioaking tragedy.
You say the Bulls were after sacrificed in the
fire by yourself: But not before the king's good
angel had cut their throats, and the best part
of their proof were past, and your hopes dead
of that good w Inch in likelihood they should
Iia\e brought with ihem. For to what use
could these dumb beasts serve, in seeking to
prevent that lawful and undoubted right,
which heaven had now proclaimed, and enrlli
acknowledged ? Rut let the proof be what it
will, I look into tlie root. I wonder, Mr. Gar-
net, what apostle warrants you in undertaking
wicked Plots, in hope that good may follow ;
neglecting what all laws, and the Jaws of Eng-

24-J]

STATE TRIALS, 4 James I. 1G06.— in the Gunpowder Plot.

[230

Itnd above mil, what all states and nations con-
clude of men, that ?lily practise and combine
for anticipation of the future rights of lawful
successors.

In excuse of Letters written with vour own
band by Thomas Winter to father Creswell,
when he was employed about the procurement
of an army to invade with supplies of treasure
proportionable for the quicker execution of so
desperate an enterprizc ; you answer, that the
persons were commended in your letters, not
the plot: ipectutum admixsi, ritutn tencatis,
unci t as though the minister had any other
errand or instruction, than the main plot itself:
at though you, Mr. Garnet, being then Magi*-
ter i» Israel and Hector Chori, could or would
be ignorant of their prefixed end ; as though so
grave a person as yourself, were likely to set
bis hand to blanks like a baby, and to leave
the rest to the disposition or a man wholly
transported with Aery humours : Or, as though
n this very point other men's confessions in
particular, besides your own in generality, had
aot left us marks and traces evident and plain
enough to descry doublcness with diversity.
You confess pritity to a practice, but not for
an army ; foreknowledge of a course for getting
treasure, but with a purpose, as you conceived,
to employ it wholly tor the relief of cathoheks.
So as the reason of the reserved n ess of Cates-
by, Winter, and tlis rest toward you, must be
undoubtedly their suspicion of your over great
•section and duty to the queen : For other-
wise it is certain they would have trusted you
ss well with their intention, as with their
nrans ; with their hopes, as with their instru-
ments ; especially considering how hard it was
far them to compass their own vast defies,
without help both of your credit, and of your
iadnstry.

Wright was in like manner, and with like ex-
pedition, commended by you afterward for tlie
quickening of Winter's project, if any life were
is it, upon the slacking of the passions of Spain,
with the propositions of peace, that no time
■iglit be lost, no stone left un removed that
sight give a knock to the pence of our policy ;
yoar head wrought upon all offers, your head
•alked iu all regions, your spirit steered all at-
tempts and undertakings : and yet if protesta-
tions, qualified and protected by equivocations,
any carry weight, all this while your mind was,
as good pastors ought to be, patient, your
thoughts were obedient, and your counsels in-
nocent. Dot now to search your cunning some-
what nearer to the quick, we must observe, that
when your hopes of invasion began to cool by
likelihood of peuce, your desires of supplies by
the cold answers that came from Spain, your
expectation of new mischief, to be wrought at
home without com plots abroad ; when malice
its* If was ca* into so desperate a swoon, ns
imtiiIkt Kosasolis when Spain relented, nor Is-
cobah when Tyrone submitted, nor dissension
within the kingdom when discontentments end-
ed, could pot it by any fresh adventure into
bfe; when ye* for your own part, Mr. Garnet,

having been once washed and regenerated in
the fountain of the king's true pardon, from the
leprous spots of former treasons, were deter-
mined to begin upon another stock, and return
as a dog to the vomit : though washing can avail
no man (as the preacher warns) that iterum
tangit mortuum, toucheth the dead the second
or third time after he huth been made clean ;
for secretly Catcsby resorts to . you, as Maho-
met might to Sergius, for now I speak according
to the matter, and not the men, to enquire whe-
ther it were lawful, considering the necessity of
the time, to undertake an euterprize for the ad-
vancement of the Catholic religion, though it
were likely that among many that were noccnt,
some should peiish that were innocent. A man
that is religious in any kind, or but morally ho-
nest in his own kind, would expect that a priest,
a Jesuit, (which title doth imply salvation, and
not destruction ; nay the Superior of English
Jesuits) upon this rash demand, should have re*
sorted for a safe resolution to God's own book;
where he should have found that God was
pleated to withdraw his wrathful liand from So*
dom, so as there had been only decern jutti, ten
just men within that town, and for their sakes;
that the wise householder in St. Macthew, mark-
ing liow hard it would be before the corn was ripe
to make separation, gave order to his servants
to abstain from plucking up the tares, nt simul
eradicarent crif if urn, lest withal they plucked up
the wheat by the roots. Ye should have found in
the stories of the church, thut the godly bishops
in the first spring of religion, suspended process
against the Priscillian heretics, ne Catholici
cum Mis pcrirent, lest the Catholics might also
perish with them. And the church ot Milan
taxed Theodosius the emperor, quod intontes
una cum sontibus true id asset, that he had pro-
ceeded both against the gnilty and the guiltless
with one stroke, and in one measure of severity.
But far beside the warrant either of hol^r writ,
or holy precedents, your answer, Mr. Garnet,
was such, as I both abhor to think, and quake
to utter ; that if any great advantage were to
grow to the church this way, they might destroy
them all.

Tanttrne animis calestibus ira f O Mr. Gar-
net, be not offended though I ask of you, as a
worthy emperor did once of a traitor in a case by
many degrees inferior to this, QuiJ/acit inpec-
tore humann Inpi ft ritas, canis rabies, serpentit
vencnum ? Tint that which ought most to tor-
ture nnd tifiiicr the spirit (if you be the child of
him whose name and badge you hear) is, that
your doctrine was confidently delivered, and so
speedily digested, nnd converted to nutriment
from such a mouth as yours, considering that
(according to the prophet) knowledge should
depend upon the lips of a priest, as Ilookwood,
Bates, and other?, that did shrink at the horror
of the project when it was first laid down, re-
ceived satisfaction upon the very sound of your
assent, though masked with the title of a man,
as grave and learned as any in the land. And
Catrshy doubting of the fickleness of men's af-
fection^ in cn»*es that concern the soul, used

251] STATE TRIALS, 4 James I. 1006.— Trial oj Henry Garnet, a Conspirator [252

your admittance as a clmrm or spell, to keep
quick spirits within the circle of combined fiith;
which oihcrwi.se perhaps, when hell brake loose,
would have bought liberty. Your charter only
(whereupon I beseech you for your own soul's
health, to meditate lor the time you tarry in
this world) for the base whereon some grounded
their bud conscience iq proceeding with this
plot, not only to the destruction of ititir bodies.,
but to the peril ot* their souls, without sound
and true repentance, winch by the merit of
Christ's Passion will s?rve m quacunqut horn
peccator inganucrit. For though Christ were
joyful that he had not lost one of those whom
his father gave him in charge, and came to
save and not to destroy ; yet jour advice was
to destroy them ail : such was your burning
charity !

Some mail surprized w ith a question upon the
sudden, might answer sharply and shrewdly at
some time, I confess, without thinking or in-
tending ill : but this man, Mr. Garnet, cannot
be you, that have confessed clearly under your
own hand, your bU»picion and fear of some mis-
chief purposed and intended in their hearts, by
this quick tjucstiou of uoceiits and innocents :
and therefore quod duh'Uax nej'eceri*. It seems
the heart of Caleb by was a fertile soil for sprout-
ing of stinking wveds hastily, into which the
seed of vour &ecui inj; contidence was cast. For
the Powder Plot, which in January was barely
embryo, became format in jlrtus in the March
next following; it quickened the next Decem-
ber, when the pioneers began to dig in the thick
wall: C'atesby not long alter imparted his con-
ceit secretly to you of the great likelihood he
foresaw of a lucky time of birth; and thereupon
was Guy Fawkes sent over by your knowledge
and encouragement, to deal with sir William
Stanley, about the drawing down o( forces some-
what nearer to the sea side tor speedy trans-
port, which if need were, might carry torches at
the soltmuity. But what is your answer to this
employment of Guy Faw kes ? Forsooth, that your
purpose was only to commend him as a sol-
dier, but not as a conspirator. O unlucky trea-
son, that comeb to be excused by so poor an
advocate! when Fawkes linn- elf meant nothing
le?s than to be a soldier, having so strange a
part to play soon after in the Powder Train, but
u>ed this retreat as a colour to disguise the se-
cret purpose that did only tarry lime, and to
eschew those watchful eyes, that nearer hand
would have observed both his inlets and his out-
lets in that place more narrowly. The point is
clear, the confessions are direct, the purpose is
palpable. All the lines of your level are drawn
to the center of the Powder-mine. All letters
are cither drawn or interlined manu tcorpiomt,
to use the word of Hier.uiic; an I yet under
pain of cfiisure we must believe, That all tins
while \ou were in charitv, because all this while
(which it grieve* im* to remember) you were
not afraid to communicate.

But now to weigh your Answers tliat concern
the Powder-Plot itself; which is paramount in
respect of the longitude and latitude to all that

have been or ever shall be: yourself cannot
deny, Mr. Garnet, that fireenwell's overture*,
as you say in coiuession, coming after the no-
tire which you took of Caiesby's question abcut
innocents was but a fruit of vour own doc-
trine, an etfect of your own instruction, and
a conclusion drawn wholly out of your own
propositions and principles. Now when w*
press to know what reason drew you to the
concealment of a project ho pernicious both to
prince and stale, without revealing it cither to
the king himself, tunquam prteceilenti, to use
St. Peter's term, or to his ministers subordi-
nate : you start to the shift of confession for a
formal help, which comes too short in respect
of C'atesby's first discovery, which your own
words aver plainly to have wrought with you.
I will not argue hi this place wliat course a
confc*S'ir should take, or how far he ought to
t train for the securing of a prince's life, that
otherwise is sure to perish by the rai^c and ig-
norance invincible of a base villain, (whose ltle
answers not in value the least hair of a prince's
head) because time sutlers not : but 1 am sure
that for a matter of less weight than this, and
a crime of less importance than the life both
oi' prince and state ; confession received a deep
wound for a long time, more than a thousand
years past, in the church of Constantinople.
For God forbid that matters of such weight
should hang by such feeble threads. But to
this excuse of tenderness in the point of con-
fession, I would answer by making a great
doubt, Whether this course of conference
were a confession or not ; for against your
bare words, which eq invocation supports, I
object some likelihood, Tint since you kneeled
sometimes, and sometimes wulked up and
down ; since matter of conspiracy were inter-
laced with matter of confession, not for ease
of conscience as should appear, but for advice
in execution ; since Greeuwtll was absolved
instantly, which excludes the shift of reference:
and Grecnwcll should be found to Ivc to the
holy Gho»i in rase tin-, wcic a true confession :
in promising, Mr. Garnet, as you say, to dis-
suade the project which he prosecuted even to
the last point, as is evident, and after the
powiler camp bruke up : 1 conclude that thov
this discovery were by confession, yet it was no
supersedeas to your former knowledge from
Cateshy your trusty friend ; and if it were none,
then it can be no protection for faith putrified.
What need wc seek light through cob we I >-
lawns, when the drift of vour wliolc device in
seeking to conclude from one, what you learned
of another, and from all wh.it you alloc ted and
abetted in your heart, doth evidently prove
your counsels to have boon carried along with
such a temper of rescrvedness, as whensoever
mischief should be brought to light, the world
might rather wonder at your cautiou, than
commend your fidelity.

By shaping such weuk Answers to Demon*
strations so manifest, you must either work by
the ring of Gyges, in making your audacity
and presumption invisible, or hold a very weak

253]

STATE TRIALS, 4- James I. 1606.— in tfte Gunpowder Plot.

[254

conceit of oor capacities, in supposing that
ti)*y can l>e cither dazzled or deluded by such

tur sophistry. For though you pretend to
ve received a deep wound in conscience at
the first revealing of the plot, to have lost your
sleep with vexation of spirit, to have ottered
and prayed to God for lus preventing grace, to
have required Green well's help and furtherance
in crossing and diverting the design ; yet all
this while you suffered the project to proceed,
tou helped and assisted their endeavours that
•ere labourers, you wrote earnest letters both
lo Baldwin and to C res well for their further-
ance of ordinary means ; you gave order for a
prayer to be said * by Cathohcks for their pros-
perous success ; you kept measure with the two
irst dimensions of fryur Bacon's brazen- head ;
Time is, Time was, till, thanks be to God, the
third Time was past : you had ever an ear open
to listen tor the crack, and were in the same
a;ony for the Powder-Plot, that Charles 5 was
iur the pope's duress, giving order in all his
dominions, that prayers should be made for
4ris release, when in the mean time he kept and
held han in his own hand prisoner. The least
word of your mouth, or labour of your pen,
might have secured both prince and state,
while you pretend to have broken both your
sleeps and your brains, aud that with a greater
advantage to the cause which you would ad-
vance, than can ever grow by combustion and
conspiracy. But your tenderness lierein was
tunable with another dutiful desire of yours to
dissuade Cate*by irom the plot, at his coming
into Warwickshire, who never meant to come
ituthert but as to the rendezvous, when the
frfuiuunent had lieen blown up, and the storm
had been blown over. It may he that your
mind was perplexed and disquieted upon the
meditation of strange events ; for so was the
mind of Cain, AchitophcJ, and Judas that l>e-
'trayed hi* master; the reason is very pregnant
io the word of God itself, That rum sit timida
ntyititia dut testimonium eondemnationis, since
wickedness is cowardly and timorous, it gives
ctuleuce of condemnation against itself; et
temper prtrtumit xttva ptrturbuta contc'icntia :
hn Sutuu prevailing his aupeU execute.

I will now conclude this address to you, Mr.
(iaruei, by observing some s}>ecial paints how
atrangelv aud preposterously the devil in his
iatt Project of Powder hath altered his old pro-
perties. For tlie curse that God laid upon the
Nrrpent after the first transgression, was ut
gradirtlur super ptctus tuu/n, to creep upon
iii» breast : but now we rind him mounted upon
the wings of an espraie to the highest region
of the air, and among the tire-works. I he
'iiher part of his curse was, that he should cat
Puhereui; that is, dust or powder : hut now
•'ace Sodom was destroyed hy sulphur, mid
(he wife of Lot transmuted into suit, the proper
material* of that mean hy which Satan wrought
in tins hot fire ; it appears thut the Serpent from
toting powder, winch was a plain dev'cc, fell,
fa a worse purpose, Co snutf gunpowder. Then
the serpent dia insidiari cakanec, now capiti,

from which the body draweth both sense and
influence. Then he began to Eve, with a mo-
dest question, Cur pracepit Deus ¥ Why hath
God commanded ? now with a resolution, pracc-
pit Dcut, God hath commanded. His words
in those carried a flourish of great comfort,
Ncquaquam morietuini, but now terror, Mori-
em mi : fur a great advantage destroy them all.
The deiil at that time did onlv nibble about
the text of holy writ, tanquum mm ponticus, as
Tcrtulhan terms Marcion : but now he draws
the grounds of equivocation concerning princes
lives out of the very scripture and by scholasti-
cal authority. Satan tempted Christ with a
fair offer, dandi omnia, of giving all upon the
top of the pinnacle: but now he sets upon the
great lieutenant of God's authority and dignity,
with an auj'eram tibi omnia, both life and crown,
ex penetraiibus ubi Christus non e$t, as we are
taught by his evangelist. The dragon's ambi-
tion extended no further than the sweeping
away with his tail of the third part of the stare
in the firmament : but now the plot of him and
his disciples, was to sweep away the sun, the
moon and the stars, both out of Stnr-C number
and parliament, that no light be given in this
kingdom to the best labourers. In the time of
Saul, the devil was so modest, as to suspend
his illusions and oracles till the visions ot the
prophets begsm to cense : but now though we
have both Moses and the prophets el jirmiorcm
sevmonem prophetic urn y yet he rustles among
the robes, it maud it a J'andit oracuta. In the
beginning of the Christian church, the very name
of Christ was sufficient t<> make Satan pack,
and to quit the possession of torment e I men :
but he hath learned a more cunning trick of
late, under the banner of Christ to tight against
the lieutenants of his imperial majesty. Jn
one point I find no change; that i«, in labour-
ing and working hy all means to draw men
from their trust in God'* direction, to a tickle
kind of confidence :n themselves, and their own
weak knowledge of good and ill. And as tint
error was the cause of Adam a exile from Pa-
radise which was hurt us eonctusus ; so had
such another almost divided us and our heirs
both from our lives and t:tues: Et penitus
toto divtsos orbt Brilannos.

1 have stood the longer on this point, to let
ycu know how icily, and yet how wilfully you
strive both against the providence of God, and
the justice of the land, Qua tuo te jugvlavit
fitaaio : The more you Lihour to get out of the
wood, having onre lost the right way, the
further you creep in. For the wisdom of the
woild is lolly Ik lore God: and impossible it is,
that those counsels or proceedings should either
have good proof in this world, or reward in
the next, that arc emhrued with blood, and
pursued with tvrannv. If then there be no
other way to heaven than by the destruction of
God's anointed and their heirs, 1 will conclude
with you, Air. Garnet, as Constnntius did with
A«cesitis, Krtgtto tibi sen taw, et in art am solus
uscetuhto ; Set up a ladder for yourself, and
climb up to heaven alone ; for loyal minds will

253] STATE TRIALS, * James I. 160fi.-

not suit themselves with such bad company.
The worst 1 wish to jour person standing now
to be convicted W the bur, is remorse and re-
pentance for the safeguard of your soul ; and
for tbe rdt, Fiat jattitia, currul Ur, it vincat

Hereunto Garnet said, That he had done
mire than lie could excuse, and he had dealt
plainly with them, hut he was bound li> keep
tin secrets of Confession, and to disclose nothing
thai he heard in Sacramental Confession.
Whereupon the earl of Nottingham asked him,
if one confessed this day to him, rlial lo-nmrrow
morning be meant to kill the king with n dag-
ger, it' he must conceal it? Whcn-uiit-i Gurnet
answered that lie must conceal it. Then the
earl ut" Salisbury desired liberty of him to ask
him siiuic questions of the nature of confes-
sion. Garnet Mid, His lordship might, and he
would answer him us well us he could. Why
then (said he) niust there not be confession.
and cotitriiion In-fore absolution ? Ye*, said
Garnet. — Then he deniuiided whether Green-
well were absolved by him or no > Garnet said,
He was.

The Karl then asked him, What Green well
had dime, In shew that he MH sorry for it, and
whether did he promise to desist? Ganiel
answered, that Grccnwell stiil, lm would do

To that the Karl replied, tint it could not be
10 ; fur us soon as L'utcsl-v mi'l 1'ercy were in
arm,, Grcenwell came tu" the 1.1 tioiu Garnet,
and ».> went from them tn Hall at. .Mr. Ahine-
lon's house inviting them Mint earnestly tu
e>ime and assist th>ise gentlemen in Ihul ac-
tum. Hereby, Biiitli he, it appears, that i iiher
G re vil well told you out ul cntite'siim, and thru
there needs no sterccv; nr if it wire in con-
fession, he professed no pi nitency, and there-
fore von could not Brooke him. To which the
cnrl added, That this one circ mil stance lmisl
^•■•1 1 bo reuienibered, and caiini.t be cleared;
That nhen Grecnwcll told you what Cutcsby
mciint in pti titular, and you then called li>
mind also what Liileshv had spoken tn you in
the general before, if you hud nut been «n
desirous to have the plot t.'ike effect, ynu might
have disclused it out of your grown I knowledge
from Cutesby : but wheo
deliver yon the- '"

-Trial of Hairy Garnet, a Conspirator [238
die epcuud, he said, Tlint lie was only glad
tlui i the world might tins' «ee, that Jesuits were
condemned by Jesuits; and treason and trai-
tors hid n.iki;d by tlie traitors themselves : yea,
Jesuits by that Jesuit, that governs all Jesuits
here, and without whom no Jesuit in England
can do any thin;.

Garnet (us it should seem) being here
migiilrly uuched with remorse of his olfenr-e,
[irayeii'Goil and tin; kins, I hat other Catholics
mighl not fare the worse fur his sake.

Then the earl of Salitbury snid, Mr. Garnet,
is it not a lameutnble tliiiia, that if the Pope or
Claudius Aipinviva, or yourself, enmniand poor
any thing, Lluit thcyroust obey you,
though it he to endanger both body und soul.'
And if yuil maintain such doctrine among you,
how can i ' e king be safe Ms it not time there-
fore, the king and the state should look lo yon,
that spend your time thus in his kingdom i

(iainct said very passionately. My lord, I
wmdd to Trod I had never known of the Pow-
der-Treason.

L. (,'. J, Garnet, you ere Superior of the
Jesuits ; and if you forbid, must not the rest
obey? WttS notOreenweU with you half anhour
at nr Litrjrd Digby's liouse, when you heard

not there

ther? Did you not send him to Hall, to Sr.
Abitig ton's liouse, to stir him up lo go to the
rebels, and encourage them ? yet you seek (e
colour all this; hot that's hut a mere shift ill
you. And notwithstanding all this, you said,
No man living, but one, did know that you
were priiy lo it: tlitu helike some (hat ore
dead did know it. Calesby mis nevsr from
you (as the gentle unman that kept your house
with you ritnfe-wdj and by many apparent

pr.,..(.. in l.ni |.i..uni|iii.|in, .(.u ofi* ■•

eiery particular of this netioti, and directed
and commanded the actors : nay, I think verily'
you were the chief that moved it.

Omiul said, No, my lord, I did not.
Then it was exceedingly well urged by my
L. ('. Justice, how he writ' lus letters for Win-
ter, Wright, I'uwkes, Baynniu, and Catesby,
principal actors in this inutchless Treason.
Besides, his louWiip told hun of his keeping
Ma two Hulls to prejudice the king, and to do
other mischief in the realm; which, when he
iw the king peaceably to come in, then bong
at of hope to do any good, he burnt them.
Here Mr. Attorney caused to be read the
Confession of Hull, alias Oldcome, the Jesuit,
his own luuul (which he said was Garni
ionemmnn) against him; wherein he con-
that Humphry Littleton told him, that
. _>sj and others wen- son; hurt with Powder,
-.aid that he was exceeding sorry ttiit
thing* took no better effect; whereat Hall
wished him not to he discouraged, nor to njea-
- n re t. lie cause by the event : For though the
. i. ■ , , , tribes of Israel went twice by the ept-
" commandment uf God atpuist the tribe of
attain, yet they both tunes received the
So Lewii the French king in ha

£37]

STATE TRIALS, 4- James I. 1G0G — in the Gunpowder Plot.

[253

vnyojo into the Holy Laud against the Infidels,
wa* overthrown, and his whole army discom-
fited, though his cause were good. And so
likewise the Christians, when they defended
.Rhodes ngainbt the Turks lost the city, and
the Turks hud the upper-hand. And -this he
confessed, and applved to the foot of Catcshy
and others for the Powder-Treason ; and s;iid,
It would have been commendable when it hud
been done, though not before.

Alter this, Mr. Attorney opened, how Fran-
cis Trcsham, a delinquent ttomauist, even in
articulo nioitis (a fearful tiling) took it upon
his salvation, That he had not seen Garnet
ia 16 years before, when Garnet himself had
con] eased lie had seen him of; en within that
time ; and likewise, that Garnet kiK.w not of
the Spanish Invasion, which Cramer himself
confessed also, and which two things Tic&ham
himself had fumierly confessed to the lords :
Vit for :i Recantation of these two things upon
his death-bed, he commanded Vavasor, Iris
man, whom J think (s.iid Mr. Attorney) deeply
guilty in cM> Treason, to write a letter to the
earl of S:;)»>hury. And to shew this his des-
perate Kcoa station, Mr. Trcsham's Letter was
offered f«> he read.

But before the reading thereof, my lord of
Salisbury said, because there was matter in-
cilent to him, .ind to that which should he
read, lie thought fit to say something. To
which purpose he said his de.-ire was, tiuly tr>
lay open what cause there was far any faitn to
be given to these men's protestations ; when
they, to colour their own impieties, and to
fclauder the king's justice, would go about to
excuse all Jesuits, how foul soever, out of an
opinion that it is meritorious so to do, at «urh
tiuie as they had no hope of themselves. Such
is it to be doubted, that sir Evcivrd Digit's
protestations might be at the bar, who socuht
to clear all Jesuits of those practices which they
themselves Lave now confessed ex ore propria.
That audi was alsoTresluMn's labour, who being
visited with sickness, and his wife in chanty
fuftered to come to him, this Letter was ha'.rh-
«d by them, ami signed by himself some low
hours before his death, wherein he Lakcth that
upon his salvation, which shall now by Garnet
be disproved.

Then the Letter was read, being to this ef-
fect: That whereas since the king's time he
bad bad his pardon, ami tint to satisfy the
lords who heretofore examined Inn), he hud
accused Garnet; that new, he bein-» weak,
desired that his former examinations iiii(*ht be
called in, because they were not true ;, and set
down upon his salvation, that he had ii'.-l seen
Garnet in 1G years liefore.

Then my lord of Salisbury sdirwed and sr»id,
it was a lamentable thin^ : f»r within th'-ce
bouri after he hud done this, he died : ai?d
asked Garnet what interpretation he made of
this testamental protestation ?

Garnet answered, It mav be, mv lord, he
meant to equivocate. Here was the F.\:ur.iir.i-
tion and Confession of Mrs. Anne Tawkes of-

YOL. II.

' fered to he read, also to confirm Trcsham's per-
jury, who confessed that she had seen Mr. Tre-
. sham with Garnet at her house three or four
. times since the king's coming in, and divers
tinus before, and that he had dined with him;
■ and that Garnet always nave him good coun-
sel, and would say sometimes to him, and
1 others, Good gentlemen, be quiet; for we must
1 obtain that which vou desire bv praver. She
, confessed also, that they were at Krith toge-
ther the hist summer.

After ail this, Garnet being demanded if
these Examinations were true, he affirmed
they were. And then were his own Examina-
tions likewise read to the same effect: where-
in he both confessed the seeing of Mr. Trc-
shain, and his sending into Spain about an in-
vasion.
! Here my lo:*d rf Salisbury concluded, That
that which was said of Mr. Trcsham, and
i others, was not done against charity to the
• dead, but upon inevitable necessity, to avoid
I all their slanderous reports and practices; for
' he said that even now there was current
throughout the town, a report of a retractation
under Batr&*s hand, of his accusation of Green-
well, which are strange and grievous practices
to think upon. But this day shall witness to
the world, that all is false, and yourself con-
demned not by any but yourself, your own
confessions and actions. Alas ! Mr. Garnet,
why should wc be troubled all this day with
your poor man, were it not to make the cause
I appear as it descrvcth ? wherein ( ind send you
may Ik? such an example, as you may be the
last nc*or in this kind.

Hereupon my Lord Admiral «aid to Garnet,
: that he hnd done more good thi* dav in that
I pulpit which he stood in (for it was made like
i«uuto a pulpit wj'rrein he stood) than lie had
, done nil the &Ay°> of his life-time in any other

Then was :« '.other Examinniion of Mrs.
Anne .Fawkes re:ul, wherein she confessed that
Mr. Garnet and she were not Ion? since with
Mr. Trchuni. at his house in Northampton-
shire, and stayed theic.

Alter this, my lord of Salisbury said; Mr.(
Garnet, if vou have not yet done, I would have
vou to understand, that the king hath coin-
iiiaiidtd, that whatsoever made tor you, or
ni^iust you, all should he read, and so it is ;
and we take of you what you will. This gen-
! tie woman th.'t. r.ecms to ^peak for you in her
(."out" scions 1 think would sacrifice hei self for
you t-» do you good, and you likewise for her :
thoifcfnrc, "good Mr. Garnet, whatsoever you
have to saw sav on in God's name, and you
shall be hp»rd.

Tist n Gurnet df sired the Jury, that they
would allow of, and believe those things he
had denit-d and alarmed ; and noc to -live credit
unto tliO»e tlinps whojeof there was no direct
proof squill _t him, nor to condemn lit:n by
cueumstuiu'cs or prescription*.

'Jlie earl of Salisbury dem.-i'dcd :if h:m, say-
in.?, Mr. Ga-.i.tt, is this all yeu have to say.? u

5

251TJ STATE TRIALS, 4 James L* 1(506.— Trial of Henry Garnet, a Conspirator [260

it be not, take your time, no man shall inter-
rupt you.

To whom Garnet answered, Yea, my lord.

Mr. Attorney humbly desired all the Lords
Commissioners, that it* he had forgotten to
speak of any thing material, that their lord-
ships would be pleased to put him in mind of
it; who was. assured by my lord of Salisbury,
that he had done very well, painfully, and
learnedly. — Then Mr. Attorney desired the
Jury might go together, who upon h's motion
going together forth of the court, within less
than a, quarter of an hour returned, and found
Henry Garnet, Guilty.

Whereupon Mr. Serjeant Crooke prayed
Judgment.

Then Mr. Wnterhouse, the clerk of the
crown, demanding what he could say for him-
self, why Judgment should not be given against
him ?

Garnet made answer, that he could suv no-
thing, hut referred himself to the mercy of the
king, and Qpd Almighty.

The following report of the Speech of the Earl
of Northampton exceeds the proportion
wherein it was first uttered, and is now in-
serted as it was afterwards amplified and
enlarged -In- the Earl, when he delivered it
to the Bookseller :
Earl of Northampton. Though some of
Plato's followers, and tho«enot of the meanest
rank, have rather apprehended in conceit,
than demonstrated by straight lines, that no-
thing is which hath not been before : if it were
possible to take right observations out of true
records, and that all counsels and attempts as
well as Configurations and Aspects, return as
it were * ex postliminio,' by revolution to the
point from whence they first began : yet if m^
Ephimerides fail me not in setting up the
Figure of this late intended Plot, I may confi-
dently pronounce with a grave senator, ' Ke-
• pertum esse hodierno die facinus, quod nee
' poeta fingere, ncc histrio sonare, nee mimus
' nnitari potent/ So desperately malicious, and
$o unkindly and unseasonably fruitful is our
age in producing monsters, when the force and
tieat of charity decays, and so violent are the
damned spirits of Satan's black guard now be-
fore the winding up of the last bottom of ter-
restrial affair?, in spinning liner threads of
practice and conspiracy under the mask of j
piety and zeal, which the Spirit of Truth term-
eth most significantly, * Spiritualis ncquitia in
' co?lestibus.'

Upon this ground I am moved at this instant,
Mr. Garnet, to address mv discourse to you, ■
not s»o much in respect ol your own person,
' ant quia te nostra spermi prece po«*i' mo- I
' veri\t hough from my hcai t 1 pity the *hafnHur* '
shipwreck of your obedience and conscience ,
upon so false a sand) M for their sakes that ■
Lave not yet learned in our Saviour, that in one
-element a man cannot * duohus servire domi-
1 nis :' and withal in the king bur sovereign's
behalf, to exact at your bands (that hold the

hearts of many followers by iease for life) a pre-
cise account of the lives of all those Cast-nwavs.

w 9

4 Quos vel apud te perditos invenit vel per te
* perdidit.' For either you that are an object
uuto many watching eyes, may be drawn
by God's grace working with my charitable
wishes, to lament, not the bad success (for so
do men that are desperate) but the wicked
purpose and intent of this crying sin (which is
proper only to the penitent) or be brought so
far at the least oat of the black deeps of indur-
ation, with the mother of Petrus ■ Lombard us,,
as to be* sorry that you cannot be sorry.

The streights of tune, the length of the trial,
and the weariness of the auditors, may be and
are great discouragements to such a Discourse
as craves time, and were better not begun at
all, than not perfected. But since the Law
and Prophets in this case in hand, stand
chiefly as the ground-work of deposing kings,
and absolving subjects from the right which
they owe to their own natural and lawful so?e-
reigns by the laws of God and man, I si mil be
forced in dischaige of my duty at tins instant,
to borrow so much time of these attentive
hearers, as must be payed again forthwith to
the ser\ ice of the state: for otherwise, ' va
' mihi/ as the Prophet threatens, * quia tacui :*
and yet we may conclude with another of the
same rank, that ' etiamsi ego tacuero, clama-
bunt lapides/

JJnt, first, I am to let both you and the whole
world know, that you are not called this day
to the bar for any matter of your Conscience,
as some perhaps may publish out of rancour
or perversity of heart, to set a fairer gloss
upon the pound of your profession. Since
the first time oY your coming to the Council-
board, you have not been so much as asked
any question about the places of your resort,
the Mippnrtiv's of your employment, or the
menus of your maintenance, before the Pow-
der-project, which hath no kindof nihility with
religion or caution, hut with fury and implaca-
bility came to be resolved on by a pack of
Bou'eftux : though you cannot be ignorant'
what the Parliament hath decreed, and sunie
prisons of your Society have suffered in the late
Queen's time, for presuming to exercise a, kind
of jurisdiction within this realm, that neither
policy of state can admit, nor allegiance can
justify. I will a:ld somewhat more for the
greater improvement of the king's mercy, and
the more just airirravation of vour ingratitude:
You are not pressed to any peril of your lift",
with publishing those Bulls which in the
Queen's time neither had (a* by Confession
appears) nor con Id have other etui than the
forestalment of the kiwi's lawful claim, when
the fruit shall fall from the wasted tree, aud the
fainting sun (whose beams about that time
begun to wax both dim and waterish) must of
necessity set in our hemisphere.

The king's free Pardon (which, as the timet
stood then, should have called for a ' melius
' inquirendum/ before it liad found passajfe
wiilrout obstruction of any doubt) was apptitef I

801]

STATE TRIALS, 4 James I. 1606.— in the Gunpowder Plot.

[202

by you, and other of your ghostly complices, to
many festered and filihy ulcers of this kind.
By this free Pardon (so far as you have not
since relapsed into worse attempts) even your-
self, Mr. Uarnet, stand at this present, ' rectus

* in curia :' wherein though it Lecoiue me not
to descant about the measures and proportions
of my master's infinite grace, yet I may tax
you, for the bad requital of so high a benefit,
and lament the king's. misfortune, that like an
eagle was in so great peri! of receiving wounds
(almost to the death) by the quills of his own

'•clemency. These are hot the true ground*,
nor proper motives of your standing-forth ; but
your art in cherishing, your malice in encou-
raging, your impiety in strengthening a kind
of practice, never heard nor thought upon
before in any age, against the life of the
most gracious and just King that ever reigned
on either side of Trent ; of a Queen re-
nowned both for her own worth, and for
her happy fruit-; and of a prince, whom
without ostentation I may be bold to call, the
sweetest and the fairest blossom that ever
bedded, either out of the white or the red
Rosary. God's law forbids a man that would
live long and see cheari'ul days, to destroy
1 matreui cum filiis/ even in those creatures
that are not images of the Deity : but you, Mr.
Garnet, out of your anointed influence of su-
perabundant, gracr, endeavoured your best
and uttermost to bruise- the .very nest-egg of
this royal and high-flying airey, if it h.id been
possible: peers, bishops, knights, burgesses,
judges, Serjeants, and all sorts of officers were
drawn iu by a writ of ' Corpus cum causa' to
this * feu de joy/ that it might blaze more gal-
lantly. It is not the wearing of a crucifix,
. which you compare to die sign of Tan, that
could have secured any of your own affection,
if they had been left unwarned, though it had
been hallowed at Rome. No relique (instead
of the red List that was a token or protection
to Jlahab and her family) could have distin-
guished a Catholick from a Protestant, when
Guy Fawkes had the match in his hand. No
kind of holy grains could have added the
weight of one grain to the reputation of any
Romanist, after once the hand of Greehwell
had written the sense of the Hebrew word
■'ThekelT upon the wall, (that is) ' Appensi in
' statera, inventi sunt minus habentes/ being
weighed in the scales of your schools, should
have been found over-liglit in the balance.
Your end, as I imagine, was according to the
threats of the Stoicks to purge tins world by
fire, or in some way wjth Democritus, to create
a new world ' ex atomis :' or because Catesby
did set Thomas Percy's offer light, which was
' tollere unum/ your desire was by this one act

* tollere/ not the man but humanity, not
' unuin' but unity. The Plot whereof Livy
speaks, of dispatching the whole Senate of
Rome in an hour; the Device at Curtbage, to
cat off one whole faction, by one enterprise :
the Conspiracy of Brutus and Cassius to kill
C<E»ax in the senate : the project of destroying

6ne Conclave, the greatest part of the cardi-
nals : the Sicilian Evensong, and the Parisian
Mattins : nay, the wish of Nero, that Rome
had but one head; which he might cut off at
one blow, came far short to the mischief of this
invention, which spared neither ape, sex, nor
degree. And therefore 1 confess, if Catesby
your disciple were alive, thus far he might
vaunt, an^l without exception, that he had^ur-
mounted and transcended Catiline in the sphere
of his own treachery. But thus we learn by
Tertullian, that « favos etiam vespae faciunt/
Wasps as well as bees' make combs, though in-
stead of honey, we find gunpowder.

Surely this was not the Fire that appeared
unto .Moses in the burning Bush: it was not
the fire that should purge the Sons of Levi,
though your Levites conceived so : it was not
that Fire which was cast into the world by
Christ, with a purpose that it might burn :
It was not that, by which men should be saved
that build over weakly upon the true founda-
tion of faith. But it resembles more lively
that false tire which .began to glimmer, ' Post
' commotionem, quando in commotione dor
' erat Dominus.' It is like to that strange Fire
which Nadab and Abihu would have offered
upon God's Altar, widi a zeal that was prepos-
terous : it hath the wasting quality of that
Wildfire, which issuing * ex rhaumo,' out of the
bramble, would have destroyed the stately ce-
dars of Libaaus. Nay, to speak properly, or
draw nearest to the nature of that quick dis-
patching fire, which you and your disciples^ Mr.
Gamer, utterly despairing to draw down frora
heaven (because you know that such a like de-
mand received a repulse, whilst Christ was con-
versant on earth, among your betters) sought
by a trick to obtain at the hand of Satan (the
great master of the Fire-works) and as the Poet
writeth, ' Flectere cum nequcas superos Ache-,
' ronta movebas.' But God wrought so, that
by this Fire (since ' per ilium fides proborum
' collucet') the faith of subjects that are dutiful
doth shine more brightly, and the State-wins
honour. Look not now therefore that the
Ladies of Israel shall meet you with their tim-
brels in the honour- of this attempt : for all ac-
tions are not praise- worthy, which some persons
of your profession study to enamel widi pre-
tence of godliness. In thinking of Telema-
chus, we set little by Astyanax : easily may af-
fections wander, where the rules of conscience
do shift: and we find, that ' umbra' is not ever
c eo major quo serior :* but if bloody passions
can thus far prevail * in arido* what hope is
there of better proof 4 in viridi/ which iw com-
parison is but ' Hnum fumigansr' You seek to
raise your glory out of your sin, but ' quaj est
' gratia }' What thank is it to you, according
to the demand of an Apostle, if for your evil
deserts you suffer stripes ? for what the Jews
objected to our Saviour (though impudently)
we dare speak truly and confidently to all those
that were privy to this pack with you, that
' Non de bono opere lapidautur, sed de bias-
' phemia/ Saint Augustine spcaketh of some

263] STATE TRIALS, 4 James I. 1 GOG. —Trial of Hwry Garnet, a Conspirator ['204

hot-headed fellows in his time, that notwith-
standing choir life led in this world, ' more la-
' troiium,' yet in their ends affected* rulium tt

* hnnorem martyrum :' among whom 1 th-ili
ever rank (with just cause) tncsc Powder- mc-ii.
But if as saint Peter s.uth, 4 Bene facicntes pa-
' tienter su.-tinctis Cvhich is far from the ra«e
of your hot tpirit^ * him eat a pud J)cuui gra-
' tia,' which your pm/pcts merit not. Tlu-ac
are perhaps the days wi.ich Nabal meant, com-
com plaining ' hodie iucrchuissc servos qui fu-
'j'i'.int;* nay, which i> u-orfr, 'qui per>e^ii-
€ main* Dominos:' .tad therefore if yon will
not Icain <f iial.^uu, to beware of speaking
more th.tn ; hsit which Cod ptittcih into your
inouth: jvt how.so. \cr* pulsions may spur you
forward, l;:;rii of 'Jala-mi's As* to shrink when
you find tlje An^el of Cod's wrath opposed,
U:->t v.j Ahita:.il pj.ako iviiuioitily and widely to
li'n; David, i «.uiu jii.jis udieucri!,' wheu 1;l\:i1i
&hail approach, wh> >iauds upon t.ie ti nshoM,
and briiiiip to ki:-#i.k at tiie d-ior of jour ln.-ari,
1 sit til'i in ^in^umen,' it c.iu.m- you in .->i«:h in-
wardly, not e qaod ciludcris, sod quod elfnndc-re

* voluc;is,* not f-ir hating shed, but because
you would have 5.hcd Hood that is nc.st inno-
cent.

How well the Project of supplantim: Prin-
ces, and suhviriiM^ Siate?, aniee-* either with
the title • >!" ^Jesuit, or the duty of a Piic.-t,
who should rather temper passion, than dis-
claim chaiitv; the Pharisees themselves c\-

I

rcss in teaching ' uon liccre,' that it wa» not

awrul for them to kili any man ; much less would
they, as it is more than probable in the warp of their lab. mix, culliiii! them ' Wsa iniiputatis.
youth, when their !■ dr lic^aii to wax as unite ' k b« ll.nti.i/ i nciv protest that both you and
:ts snow, have taken eyes into tlwir Iliads like
hurninz-sdasses to t»ivc lire to this train : a;ai
yet Trurh itself hath said (which boll) *idi.»
must believe) that unless our riplm.oiiMU- , cn-
ceeds theirs, \v»- must not expect to be heirs of
eternity. It will be Joiu: before seme of you
can protest with Paul, that you an- * nu:.ii!i,'
clean and pure from all nun's blood, or wirii
Gregory to Mauritius tlw Kmpcror, ti..ii i&«-
wouiil never 'misccrc sc in c uiiwjuam iihtk m."

that the Protestants accord with the Cntholicks
in more points of Faith and grounds of Doc-
trine at this day, than those of Sicheiu did with
Jacob and his fainilv. Cv resolving this pas-
sai:t» into pari-, we shall find a <jreut rcseni-
I dance, both in the po"»nt of fact, and in the reso-
lution otYmht with this present case, upon which
we have rca-ou to fix both our eyes and obser-
vation. For first, Jacob out of conscience and
humanity re;>orves, * Nou iturani aniuvini suam
' in coueilio J.e\i/ that, his soul fhonld never
march in the council of Levi, ' Nee in cintu il-

* loruin fuliiram {•loriain/ nor his honour »hine
in their society : What is the reason? Because
in their race ti.ey have slain a man (much less
than the destruction of a prince with his poste-
rity and wlioie estate) * Et in inalilia suftode-

* rum murum,' and in their malice diii<:ed rlmva
a wall ; which in my ojiinion either misseth
Itanity one hair, or very narrowly, your pro-
iect*s invent ion, in dinvLinj! at the wall of tin;

•7 s *

parliament. What is Jacob's sentence upon
tin* fact ? * Malcdictus illorum furui quia per-
4 tinax, et imiijuatio ipii-i dura:* which c.irse
in a more liv:*l\ manner (if possible it be) than
tiie \ery Kict it-ell', ssiit^ the comparison. For
who knoweth nor, that when malice taketh
hold of humour o;ilv, as lire doth of straw, tin/
it cans » a treat bl.'./e wt the lir.-t kindling, jet
ii i.^ quickly .spent, and only the smoke re-
mains? but wl.eii it taketh hold of con • ii nee,
as tire dotii of >1eil, * <;ii.id tardc ac(|ui-i\ii <liu

* retinet.' then such inuiks are iiHuituneuN.
Touciiiii!* the tale which Jacob hcatum-lii for

tljo-e liainU to be ii-.^io-ed on Ins he;id bv (ir-
din.it mil. that were * /eper.^e saii^uiui,' or l hi:
ini-h;*p of David t:.::t mi^hr not ivar tiie T< m-
ple, for ;h.- staiuii:;: end eiiiLruin.^ of his Imis1^
with bloo 1. Kes-in to the very le\t it -elf, (uv
if if plea>e you, t:» vour owu (.'anons^ in t n-
quire wlielher I'aui'* \u ■fr.iitu of iutcn..- idlinir
with oicui-o* aii'iirs w«-e enj.iverl \\\\\\ ;i * non
' ohsiaiil.',' s<» \\x\- ■ »i ■ | v us coneernc I P.ojects
and Fli's for Gunpowder. Your safest oiiirsr,
ftlr. (i.ii::it, as I Mi',»mtse, is to stay your

(wrei u\.e!|, and all ll.ev thai were pnvv

t-» ll:is :icctu <-d 1'1'it. deserve this style upon

hele.- '.rioimd tlum Simeon and Lew: by so

much as your indignation c»anparej with tln-iri

hv due c ircaius: mc. -. w.i.s bv infinite d^urecs

• durior." more haul th.iii theirs. For though

the fe.it 'Coifs n.iu.e be pr.iiscd) were ii.#t fully

\»;-»u-. !■■!. Mt you Know, .Mr. Canwt, who it i%

lb. t cumpiiseih our consent both within the

.iiip;i-s and the ceii-ure of a deadly sin, and
• ... ... . . • . .

or call ti mind cither thr pielv of that L'odlv whit f.ifhrr Niith lh.it,'4 (^luni deest operi iue>t
Li diop in a better time, that would not Midi'i* k \oluntiti.' The c'imiiion law would punish

.V
Trea>:»n in the very heart, if iheije of inqtiisi-

ti hi c »ulii «*\tend >o far; and then-fore the
providence of (rod in jirevenliiij, by his meicy
this destruction, i> no tii-charn*4 t«) \our inten-
tion iu contri\in^ if. By the <i»ui>e and re-
coei-se of times aiiil acc'-Icnts, wise nan ob-
Mi\e, that \» ry seldom hath any mischie\oiis
attempt be»n imiletl-ikeii for di-:inbMice of a
state, without tlu- t oui^el and :i'S>!,!inv of
a pr»i-t in the i-i-t, in the middle, or la?t
ac t of the tr;;:n l> ; and that all alon^ with

jiid^uici,; wiih liia: Si u'f of old Ja'*ol», whereof siieli a chorus of Confedenttc^ t > enteitain the
mention is made in C\-iif ~j«», in tl.ise break- : "=t. •.■'•, wh.ic the i:.\(s ami lortunes «»l" «^rej»t
neck pa-sajres, tii.it is, with that a l\i-i d Sen- : priia s In ■,.:■_• mi noon th<* teiitei hooks have
fence which he pronounced a^.iiu-t I^'\i the ' put :ul in h-i/:ii'd For while Alices stood in

Father of succee.lin^ Vrie.st". for killing the
Sons i*t' llemor at>er circumcision, the same
lit'iii!! iu that east* n> weil a Bond of Promise,
as u &cal of Faith ; since I Ho verily believe

( oiiferciicc witli Cod upon the mount. In.s l»pv-
ther Aaron impntitut, as for the most part
churchmen are in their desires, of pans* s or
delajs, fell instantly to mould und worship the

265]

STATE TRIALS, 4 Jawes I. 1666.— in the Gunpowder Plot.

[266

golden calf, to^their commander's vexation and
Uod's dishonour. Abiathar was condemned
for complotting with the Shunamite, and Joab
lieutenant-general against his sovereign. With
what distemper and disorder some priests have
rock'd the craule of the churches infancy in
raising heresies, the seeds of factions, only to
that end, no hian can l>c ignorant, that hath
run over the churches histories.

Odo, bishop of Bayou tie, was imprisoned by
iiis brother the first William, as a stirrer of
Sedition, and after conspired with Robert earl
of iMortaigne, to depose his son, against whom
also Geffrey, bishop of Constance, fortified in
actual rebelbon the castle of Bristol. The
captivity of the lion-hearted Richard, champion
of the holy wars, was by the piactice of Savari-
cos, bishop of Bath. Gervas the great preacher
cnter'd with Lewis the French king's son, pur-
posing to root out the race of our kings, and to
plant liimself and his progeny. Of the rebelli-
ons army that usurped against Henry 3, the
title of * Exercitum Dei' (altho' by the pope's
legate, ' reputati sunt filii Belial) * Clerici fau-
' tores Grant,' saith the monk of Chester. For
conspiracy against the first Edward was the
archbishop of Canterbury exiled the kingdom.
And before that Isabel, the wife of the second,
durst undertake the plot of deposing her hus-
land by a damnable device, for the raising of
her son, she sent in a pack of preachers, poi-
soned with prejudice against the present state,
to prepare the people's minds by false sugges-
tions, to the change which was intended to fol-
low. And Adam de Orleton, bishop of Ilere-
ibrd, that wan the first deviser, continued the
ihiefest feeder of that dissension between the
Lu^hand and the wife, taking occasion in a ser-
mon preached at Oxford, in the presence of
the queen, and all the rebels, u|>on that text of
the Scripture, ' Caput meum doleo,' to express
by depravation of his lawful sovereign, how
man* mischiefs grew to the commonwealth by
i corrupted bead that governed them. For
aiding the enemies of Edward 3 was the bishop
of Hereford arraigned. And the chaplain of
Wat Tyler, that advised his chieftain, as you
Mr. Garnet did vour followers, to destroy all
the clemy and nobility, was Ball a mass-priest.
With (ilocesterS duke against his sovereign
Richard, was Oswald, bishop of Gallaway, the
chief complotter. Priests and Friers th'-v were
that suljorued a false Richard against the fourth
Henry, whereof eight being Minors, were bung-
ed at Tfburn : And Maudelen himseif, that
took ujKin him the habit dhd person of the
king, wa»» a priest also, to keep them company.
Scroope, the archbishop of York, for comple-
ting a conspiracy with the earl of Northumber-
land against the **ame king, lost his head for
hb labour. Beverly, an anointed priest, not to
be behind some other of his fellows in these
seditious attempts, conspired against the fifth
Henry, with the lord Cobhain, siT John Old-
castle.

I have seen the copy of a learned and wise
Letter, written by bishop Chichcley, a pi elate

of your own, chancellor to that king, gravely
advising him to beware of admitting a legate
resident in the realm, in respect of the sharp
effects by stirs that have been raised in former
times by persons of that habit ; pointing as it
were to Hcny Beauford, who afterwards was*
both author and actor of more mischief than
almost could be expected or feared.

They were priests and friers, that in the first
of Edward 4, conspired with Jasper, earl of
Pembroke, and were afterward attainted and
executed by act of parliament.

Dr. Shaw was a priest, whom Richard 3
made the trumpet at Paul's Cross of his wrong-
ful claim against the rightful possession4 of hi*
innocent nephews.

That Impostor that suborned Lambert, to
take upon him the person, and usurp the right
of t;>e duke of York, against the blessed union
of the two Roses, was a priest in Ireland.
Wherein I note, that as a priest would then
have forestalled, so now two priests, Green well
and Gamer, would have cut off the union. He
was a monk of Henton that inticed the duke of
Buckingham by seducing Hopes, to the ruin of
as great a house as any subject in Europe
(bearing not the surname of a king) can de-
monstrate : whereof both I receive a wound>
and all that descend of him.

I speak not of those popes, that exercising
more the sword of Paul with passion, than the
keys of Peter with instruction, have been kin-
dlers of great broils : nor of the three powerful
cardinals,. York, Lorraine, and Arras in our
age, that during their times were not much an-
swerable for sloth or idleness, whatsoever they
are otherwise for time ill employed, being per-
sons of great spirit and too great activity : nor
of thos»e churchmen, that by their doctrine in
the pulpit, and subscription of hands to traito-
rous decrees, em based the two daughters of
king Henry 8, both before and after the death
of king Edward 0, for satisfaction to the pride
and ambition of un aspiring humour.

1 pass over the brainsick opposition of Knox
and Goodman, against the two renowned
Marys, both queens of Scotland, regent and
inheritrice in our days : nor of the fiery tripli-
citv of Ballard, Clarke, and Watson, of which
number, the first practised'thc slaughter of the
epicen deceased, the other two of the king our
5o\ere'ign. I rip not up the complots of Ser-
nius the monk, to bring the Turk int> the em-
pire of the east : nor of those false prophets,
that established the race of Xerif in Barluir\.
My only drift and purpose i^, t > compare for-
mer practices with the late attempt, (tin/ far
exceeding and surmounting ail that went be-
fore) to make true subjects sec for the better
trial and examination of spirits, that as well
some priests in Christ* ndom, as those Salii thai
were chaplains to Mars at Home in the reign
of idolatry, took delight by tils in tossing fire-
brands from camp to camp, for the inflamma-
tion of e\il alVectinns and worse practices.
But the circle of a crown imperial cannot be
soldered, if it once recehe the smallest crack.

M67] STATE TRIALS, 4 James I. 1006.— Trial qf Henry Garnet, a Conspirator [268

Sinews that are cut in sunder, can never knit :
neither is it possible that there should be * in-
* tegralis imilas in solutione coutinui.' 1 will
therefore conclude this point with the grave
and learned judgment of So/omcn, an ancient
writer of the Church Primitive, ' Universira
' accidere in sacerdotum dissidiis, ut respublica
' motibus et turbis agitetur :' that it happens
generally in the dissensions of priests, that the
commonwealth itself is shaken with die con-
vulsions of conspiracy.

It is very probable, Mr. Garnet, that the
late queen, in case the thread of her worn life
could have been spun further on toward these
misty days, (that have somewhat overcast the
brightness of your enticing hopes upon the
settling of this state in the succession of so rare
a king) should have run some strange hazard
botli of her state and person, among your
mines and powder trains (having indeed imbrued
her sword m the blood of some choice persons
of your society by the warrant of her laws ;)
since this sweet prince our sovereign, that before
his coming always v. rote his laws in jnilk, and
ever since hath been very careful not to write
in blood, can thus hardly either by his own
gracious deserts, or his council's incessant care,
be secured from the shambles. I have not
read, neither do I bel:eve, that the murder of
any anointed king hath been accounted in any
religious or just age, either an act of prowess,
or a step to martyrdom. I could not have
thought, without this demonstration of proof,
that any man had been left in the world, since
the death of George Buchanan, to proclaim
prizes for the slaughter as well of kings as of
rygers. Hut if it were not impossible (which
now I find with grief of heart) for any one
spark of loyalty lo live in an ocean of immode-
rate and exorbitant affections ; surely I should
have expected from you and your friends, Mr.
Garnet, effects of better inclinations toward so
mild and gracious a prince, as never searcheth
ulcers but with a shaking hand, and in searching
all, hath a more earnest desire, * non invenire
' quod qinrrit, quam invenire quod puniat.' For,
to speak truth without flattery, (which I abhor
as the canker of all generous and worthy minds)
have not both vou and yours received and en-
lovvd inanv favours from the kii)Lr, which in all
likelihood were not in the la^st time to be looked
for ? Would the late queen, think you, have
br.itowcd honour, by laying the sword of
k mil lit hood upon the heads of so many Catho-
lic., as the king hath done since his entrance ?
Would the queen have allowed unto all, or any
of the Kecusnut*, that free kind of access both
to her person, or to her court, which the king
hutii done (not only upon ju>t occasions, but
for thiir comfort.) and in effect, at their plea-
sun-, without making any separation between
th j-e, that before hi*, coming saluted the fair
promise of his hopeful day, and others that
won! 1 have prevented it ? Was not the gate of
justice opened Trojano Tyrioque to Protectants
and Oatiiolics alike, with that indifferent and
cpial regard, that it hath been since to the

shutting up of those mouths that were most
mutinous ? Was the late queen so confident in
the fidelity of any Catholics, as to employ them
without dk- trust to foreign princes in embussy ?
Would the queen have called the chief Catho-
lics to her council-board, that upon the laying
open of their just complaints, they might have
redress with favour? Might the recusants of
best behaviour and countenance in the late
queen's time, live in their own countries, dispose
of their estates and tenants, and enjoy their
pleasures, without any other mulct than
the former laws had laid on them ? Was it free
for recusants in those days, that had been cast
behind in arrearages (for want of answering
their payments in due time to the crown) to
compound with a commission directed only
to that end, almost for what term and at
what rates he might best satisfy ? Did the com-
passion of the late queen extend so far in favour
of recusants, as to put them in possession of
their whole estates, drawn out ot the farmers
hands upon due proof made of spoil, without
further demand of any other contribution or
taxation than the law limited? Was it any part
of the late queen's care, to give order lor the
chastisement of informers aud messengers, that
preyed upon the prostrate fortunes of recusants
with harder measure than the justice of the
state warranted? Was it free for subjects of all
affections and religions (during the late queen's
life) that delighted in the wars, to serve what
prince or state it pleased them, without either
exception or punishment ? Did the late time
leave it to the choice of young gentlemen that
had licence to travel, during the time of their
abode in foreign parts, to frequent what places,
courts or companies they would, without yield-
ing an account nt their return of their adven-
turing ? Had it been possible to have draw u
from the late queen either restitutions or pen-
sions for the maintenance of recusant-5, in res-
pect of !«er\ ice done to antecessors or ancestors?
Was thejate queen as cautious nucf tender in
forbearing to take the lives of priests and Je-
suiu upon the point of sum mum jus, before she
were made acquainted by the judges thoroughly
with the state of their evidence? Was any ma-
gistrate ever culled to his answer for proceeding
in cold blood against a priest, that for want of
means to procure a pardon had been kept in
prison since the time of the quern deceased?
Was the late queen ever pleaded, that in the
pardon general at the closing up of the parlia-
ment, priests and Jesuits should be comprised
in the list, aud among others you and Green-
well, that at the first opening of the spring re-
sorted thithtr with as violent a thirst as ever
you did to Jubilee ; and yet in recom pence
thereof since that time, have been well content
that the distributer of so great a portion of grace
and bounty, should be blown up by your Bonte-"
feux ? A man would think in likelihood, that
both you, and all they that were encouraged
and warranted iu this attempt by you, having
received at the hands of so crocious a king so
many talents in a royal kind of trust, should

m)

STATE TRIALS, 4- James I. 1000.— in the Gunpowder Plot.

[27(1

rather have studied by your best endeavours to
increase the 6tock, than to lessen the principal,
by burying your talent under ground among the
powder works ; especially considering that our
king is not like the other mentioned in St. Luke,
' homo austerus, qui tollit quod non posuit, et

* metit quod non seminat :' but rather desirous
with Moses to he rased out of the book of life ;
with Paul to be made Anathema tpr the com-
mon good of those subjects that live under him.
Our royal master travels not as the other did,
4 in longinquam regionem ut accipiat regnum,'
into a foreign region to obtain a kingdom, but
brought a kingdom with him out of the next re-
gion to ours, that hereafter we may live ' una-

* Dimes/ that have been so long severed and
divided in fraternity. Hut such are the qualities
of' many men, and especially of you and your
complices in this complot, that as one saith,
' Non tarn again gratias de tribunatu, quam

* ' qtEErunter quod non sunt evecti in consulatum/
Bat when you, or any man of your affection and
humour, shall be able, out of quintessence of
nit9 or positions of state, or grounds of common
sense, to prove, that a prince as opposite to
vour religion as you are to his, and that vows
to set up bis whole rest and adventure not only
of alt his crowns, but of his life and succession,
upon those principles of faith (which he hath
sucked from his infancy with his nurse's milk)
to take a milder course with the Catholics than
he hath hitherto done, without offence or scan-
dal to tlie tender conscience of his own church,
which he doth chiefly regard, I will acknowledge
that yon had more reason to bemoan yourselves
(which is the furthest period of a subject's power)
than, as your case is now, I can admit, looking
into sundry circumstances of peril with a single
eye, which is neither dazzled with self-love, nor
distracted by slight appearance. For though
you may perhaps conceive, that there wanted
somewhat to the full measure of your vast de-
sires; yet all men know that you prevailed far
above the likelihood of any reasonable hope ;
which may move you to call to mind with more
evenly poised thoughts, that judgment of a wise
author, that * inter voluptutes tarn numeratur
' id quod habes, quam id quod speras ;' a good
role for a perverse interpreter.

The quicksand upon which you plant the
great artillery of your sentences and decrees
•gainst the states and persons of all princes that
square not with your rules, I take to be that
idle impression, rather than true supposition of
a certain kind of prerogative, thought to be left
by our Saviour to his spouse the church ' in dc-

* jioMto,' for the deposing of princes, upon con-
viction of contumacy, from their scat of govern-
ment. For as the great philosophers conclude
the whole world to be composed of three cer-
tain concurrent principles, that is, matter, form,
and privation, holding the last of the three to
be rather a principle of transmutation than of
e*rabh*hmenr : so likewise the schoolmen within
these last 600 years, have drugged into the dis-
cipline a new kind of privation also beside the
ntiUr, which it the flock, and the form which

is the government. -And this privation hath
undoubtedly metamorphosed as many states and
policies as the other hath done shapes and
figures, if either the complaints of majesty, or
the smart of patience may be accounted of in
our audit. 1 confess with the woman of Sa-
maria, that this well is not only deep, but that I
want the bucket, which from such a well may
be fit to draw : for every plummit is not for
every sound, nor every line for every level: nei-
ther is it possible out of every block to carve
Mercury ; but yet since it is confessed by Ro-
bert Winter, Kookwood, Guy Fawkes, and
others, that their error in believing this conclu-
sion upon the warrant of a learned man (which
as appeareth now, was yourself) hath been the
greatest cause, and the strongest motive of their
fatal fault ; since in like sort, it agreeth fitly
with my desire to reduce as many of those silly
erring sheep that followed Absalom, ' sed corde
' simp I ice et penitus causam ignorantes,' as I
can from your * acheldama,' or ' ager sanguinis,*
(considering how many priests have practised in
these late years to sound points of war) it were
as meet that somewhat were set down for con-
futation, as for caution : and therefore I have
been the more willing to engage my zeal and
duty, though perhaps above the measure of my
strength, upon this argument, ' et quantum in

* me est/ to shake the whole foundation of fu-
ture conspiracies.

But before that I prepare myself to this en-
counter, or that 1 enter into this narrow list,
wherein I expect as many adversaries as there
be men that have humours to limit or to con-
quer kings, I hold myself bound in duty as
well as drawn by method, to wipe away that
weak excuse which you make of your disloyal
heart, in publishing this doctrine of curbing,
suspending, or deposing princes of high estate,
upon this ground only, that in foreign parts
you found it neither severely taxed, nor capi-
tally punished. To let go that maxim which
binds all sorts of subjects to frame their ac-
tions rather to the law of the country wherein
they live, than wherein they wander; and
likewise the great improbability of so gross ig-
norance in yourself, mid your friends, as not to
take notice of a point of state so deeply riveted
in all the courts of justice within the realm; I
must tell you further also, that princes fear not
those fires which are kindled in foreign states,
before that some spark light either upon their
neighbours house*, or their own palaces. Idle
lookers-on, and frank adventurers have not an
equal sense of the danger, which the ships and
vessels richly freighted endure at the sea,
either" by fal-e pirates or foul weather. ' Qui,

* sani sunt,' according to vour construction of
'sanita*,' .Mr. Garnet, * ncc medicis egent, nee
' metuunt inediciiiam.' Their ears -are very
dull, and unapt to niu.Mck, that cannot keep
time when fortune plays, and all sorts of in-
strument* are set in one key to make full liar-
monv. So bins* doth the great brood-hen
cluck her chickens, as she takes them to be
hers : but if once they fly from the protection

'J7i] STATE TRIALS, 4 James I. l(k)6.— Trial qf Henry Garnet, a Conspirator [2/2

and safe defence of her wings, site leaveth
them its a prey to tho puttock. I will search
no further than our own time for satisfaction in
this point, how fir princos would he patient in
case they were as violently pursued and plied
as the king our sovereign hath been ; than hy
observing what kind of obedience hath been
performed by some of that rank when tht\
were shot with the same arrow. For many
men are very slack in making a hue-and-ciy
after the thief that stealcth their neighbour'.**
goods, which nre very forward to lly with the
wings of an eagle, when they laid themselves
pressed in their own particular. ' Et hie si

* fuerint sentient aliter/ and in like eases wise
men out of experience resort to like remedies.

But if there be no drugs in vour shop to
purge that sharp humour, that hnth been the
cause of so many burning fevers, and distem-
pers in this state, than your diacatholicon, I
may tell you plainly, that it strives so murh
against the stomach of the king, and worketh
upon nature with that violence and loathsome-
ness, as he doth rather clmsc to feel the pain,
than take the pill, and to endure the worst of
the disease, than to make tin* befct use of that
remedy. In this ease he will trust Iks own re-
ceipts tint are made familiar by time and u*-e,
leaving other princes to their own free choice,
which may make all drugs to taste in their
mouths like manna, that is agreeable to their
own appetite. Evinces cannot be too suspici-
ous when their lives are sought, and subjects
cannot be too curious when the state brandies.
I remember that when Joshua took notice of a
single man that came from Jericho, standing
with a sword in his hand ready drawn, he as-k-
ed instantly, * Noster cs, an adversariorum ?'
€ Art thou of our side, or'of our ud\ersaric* ?*
Directing us that are now in commission, as it
were by line ami level, in what manner and
with what caution we should examine you and
Hall, since Creenwell is out of our reach, for
you draw not one swerd, as the other did, but
two at once, that is, both the spiritual and the
temporal, against our sovereign, and to enquire
withal at wlr.it time, and in what place, und
upon what, advantage you und your suborned
confederates intend to wound bis royal majesty.

For since we find, that to secure litigious
possesions, that lie subject to surprize, it is
usual and ordinary, e\en anions; persons mere-
ly private, so long us they live in fear, to sound
the dispositions and affections of their own de-
pendents, followers and tenants, upon suspi-
cion of a false trie k : At a dead-lift, it much
more beho\eih trr.it princos, upon whom
whole states and Micro.*- ion* depend, to t ike
the surest hold thai ii po^ihlcot their suhjccis
Affections and lu-irt*. lest if thev should chance,
in the dav ut' trial, not to be * ni^fri «.ed ad. t r-

* suriorum,* and theieiiy draw their swords of
another side, and (Invito il:s» l.-ust that is rc-
po-ed in their lisith, we might with Rachel,

* Ploraro tilios nosirns quia non sunt,' and en' I
for help too late, when deduction were in the
door of desolation.

This doctrine, Mr. Garnet, is not drawn out
of the fusty vessels, as some call them, nor
from the lees of the latter times w hich you sus-
pect : It carries not the least taste of preju-
dice or festered suspicion upon particulars.
It knew no difference either of name or repu-
tation, between catholick and protectant,
when it was first set on broach by those
princes, states, and divines, which ure account-
ed catholicks, and some of them canonized for
saints in the rubrick* of your own register.
Tor proof whereof you shall find a patout in
the records of Rich. 2, granted to one Waleton,
for the searching of all ships and vessels inward
or outward-bound iu the port of London, and
for the sifting of all persons likewise, * qui bul-

* las, vclalia papalia instruineuta deferebant.'
In the same prince's reign, sir William Brian
was sent to the Tower, ouiy for procuring tho
pope's bull agaiiut certain burglarers that
rubbed his own house, * quumvis uhundans
' cautcla non noctat' by the civil law, and the
bulls themselves were adjudged prejudicial to
the king's prerogative. With these 1 match
Stephanus de Malolaeu, sharply fined in the
reign of Edward 1, for putting a bull in execu-
tion against a certain knight his adversary,
without acquainting first the king or the coun-
sellors. Roger Sherbrook was called in ques-
tion for procuring bulls from Home, in ' con-

* lemptum regis et corona.* cxharedunda; peri-

* culuin,' which was the best construction that
was then made of these traverses. Edward 2
sent a commission, as appeareth hy records, to
enquire of any process or sentence brought
over from Rome into this laud ( se inconsulto,'
without his privity. It appeareth again in the
time of Edward 3, nil the ports were laid for
interception of bulls by iho king's order. To
the archbishop of Ravenna was granted a safe
conduct at his coming into England, by the
same king, with this proviso, that he should
only report * Nauctas papa* exhortation*.-*,' but
neither send out process, nor give sentence,

* in corona' et rc<im pra_'ju;licium.' It was not
lawful in those days to bring in any letters
either from tho pope, or any foreign prince,
without imparting them fust to the chancellor,
or the warden of the (jiiiuquo Portuum, which
iu time of the best correspondence, as it seems
to me, implies weak coulidc ncy. Edward 3
gp.ve instructions to certain noblemen that
were to treat of a peace with Franco, in tho
presence U' the pope, to proceed with great
caution, that is, not * tnr.quaiu coram jud ice,
k r-e-d coram privulu pc-rxuui ;' and not as

* in f'guia judieii, std amirabilitor.' When
tl,v- .Sols would have i:;.d ;.!1 ilift'i rence? be*-
belWLcii both kingdoms le.c; ol to the consci-
ence and d!tcret..>n of the pope, the peers uf
England uttr r'y refused to -jiw th.ir assent,
tho-iiih the kin:'- own fa< iiit\ should incline so
far, beci-iire their kirn:, :•> thev vouched, was
not to make \\\-> answers in matier* of that
tjualitv before unv Mid«''» whatsoever, * wl ec-

* c lesiastico v»l scculan/ either rcolohistical or
secular. To be fchort, iliew* sparks of jealousy,

273]

STATE TRIALS, 4 James I. 1606.— m the Gunpowder Plot.

[274

were to far kindled between the Church of
Rome and our ancestors in former times,
altliough they were no Lutherans nor Hugenots,
(as our countrymen ore termed in these days)
but Catholicks according to the Roman Ca-
techism, that an order was set down by the
wisdom of the state, that the pope's collector
■t hit first arrival on our coast, should swear
solemnly to be faithful to his crown, to attempt
nothing to the king's piejudice, or in disgrace
of toe laws established ; to put none of the
pope's orders in execution, to the weakening or
the king's prerogative ; to deliver no mandates
or letters from the pope, before thoy had been
viewed and allowed by the council of the king ;
to write nothing to the pope from hence, with-
out the king's leave ; to deal no further in the
baskwss of benefices than the privy-council
should allow ; nor without the king's privy-seal
to depart out of the kingdom.

These points are tender, and such as during
peace were never offered by the kings offing-
land to the ministers of any other foreign
prince ; and yet we read of no such invectives
or decrees against prince and state, as in our
days are ordinary. Other princes in like man-
ner stood upon their guard, and with like cir-
camspection, as is evident by Philip le Beau
the French king; who being advertised of the
pope's peremptory proceeding upon the com-
muning of a bishop tor evil words against him-
setf, inquired of all his peers both ecclesiastical
and temporal at a pub lick convention, how far
he might rest assured of their fidelity and loy-
alty notwithstanding that decree; who an-
swered, * Unanimi consensu sc illius tautum-
asodo esse beneficiarios ;' and that what pope
or potentate soever durst adventure to put out
his horns, or to raise his crest by opposition to his
royal prerogative, they would live and 'die
with him.

if princes that were absolutely Catholicks,
according to the Roman list, that were directed
by one canon, tuned by one wrest, obedient to
the voice of one high shepherd, and between j
*bo«n and the pope there was but * cor unum
' et anhnauiia, fouud so just cause and so great
reason (notwithstanding union in points of con-
science, and orders of conformity j to be tender
aad suspicious of their temporal prerogative,
aad to cast a watchful eye upon the pope's en-
croaching steps, iu quarters that pertained
neither to the churchyard, nor the church:
how much more jealous ought true subjects
and sworn servants in our days to be of that
prince's state, who being, as the case standeth
now, sustained and fed by another root, di-
rected by the voice of other pastors, and as
careful to reform, as his antecessors to conform, j
•hue they sailed by another compass, and upon j
another coast ? And whosoever will not be in-
structed by the records, let him search in the
vaults and the powder-trains of the parliament.
If in the time of Henry *2. (who, touching point
of conscience, was ' obedientasimus eccksia-
' fibus*) Vivian, the pope's legate, was precisely
«ilted and examined by the bishops of Kly and

VOL. II.

Winchester, (that were of his own profession,
aud wore the same badge) by what warrant he
durst presume to land without special licence
from the king ; and therefore give oath ( in
verbo veritatis,' to do nothing against the king's
authority : how much more watchful and re-
served ought this state to be, in admitting
Green well, Hall, and Garnet with their Bulls
or censures, ' in regis et corona; prejudicium,'
without inquisition or search, since their end
is not as before, ' implere inanum,' to- till the
hand, but to replenish the churchyard, and to
stir up all conceited or discontented men, to
the taking of arms against their lawful and re-
doubted sovereign king James? And though
the pope, shewing himself (in this point) more
moderate and discreet than other of his prede-
cessors, hath not as yet cut off the king for-
mally as a withered or unfruitful branch ; yet
to their precipitate and brainsick giddiness it was
thought sufficient, as Guy Fawkes and others
did confess; that the pope on Maunday Thurs-
day censures schismaiicks in general, (though
the most judicious among the schoolmen, di-
vines and canonists, of their part, hold directly
ad opputitum, and dare not wan-ant any con-
science according to the rules of their own
discipline) by that censure which we may pro-
hably conceive to be more narrative than
active, in respect the process follows not. This
record concerning Henry 2. draws to my me-
mory a message of the same effect, sent to a
Scotish legate by Alexander the king of Scot-
land after that time : for it is true, that legate
proposing to sess every parish at four marks of
silver, and every monastery in that kingdom at
twenty times so much, for the supply of main-
tenance to the wars in the Holy Land,]was com-
manded by king Alexander, ' intra regni fines
' consist ere/ to stay upon the border of the
realm, 4 et per Uteres mandata exponere,' and
by letter to deliver his instructions ; for neiiher
Scotland could forbear or spare so great a sum
as the legate would exact, neither (albeit the
realm could,) yet his mean tug was, to send it by
so unlucky a messenger as* the legate was;
complaining that he had been robbed of the
money gathered in foreign states before, to the
loss both of his own labour, and of the charities
of other Catholicks. In conclusion, a fair offer
was made of men for increase of strength,
which was not the legate's aim, but of no trea-
sure to fill coffers, which was the chiefest end ;
and a thousand marks were sent to the pope
as a mere benevolence, which sealed up the
drift and purpose of this embassy. This answer
was exceedingly commended by the khtg of
England, 'qui idem expertus sapiehnt ;' who
having tasted of the same cup, grew wise, as I
find by Hector Boeiius a Roman Catholick. I
mean not in this place to insert or add the
judgment of a Scot ish bishop, that these kind
of exactions were tyranny ; advising further all
that state in a full convention, that the legate
might not only he sent away empty-handed,
(ami with like success to those, which, as the"
prophet says, ' Donmerunt somnum suuin, tt

T

275] STATE TRIALS, 4- James I. 1600.

* nihil invenerunt viri diiitiarum in manibus

* sius*) but further, that an act might pass in that
assembly, to cut off all such errands by provi-
sional accord, as might ' in futuro' tend. to the
state's impoverishment : which was universally
agreed and determined.

I did very well approve, And was glad to hear
the distinction and difference which you made
in one part or* your speech, between the king
our sovereign (that was never swathed in the
bands, nor danced in the lap of the Roman
Church) and other princes Roman Catholicks,
that were first incorporated by nnion, and after
cast off for their contumacy : for this is some-
what, though I hold it not to be sufficient. And
beside that every grain in measure is well
gotten at your hand, that held the balance so
unevenly and unsteadily : that passage also of
St. Paul, prohibiting the church, or at the least
confessing himself prohibited to judge those
.' qui foris sunt,' as yo« repute the king inclined
to that side, which your own admission and
exposition doth bear. But as it is impotable
for any man that is not a perfect Gileaditc,
without lisping to pronounce Shibboleth, how-
soever otherwise thev drank water ' curvatis
' genihus :' so the mischief is, that you flee
too suddenly from that foundation which your
own hands had fastened ; and upon the ques-
tion asked, what you would think of any sen-
tence privative, proceeding from the pope
against our king, in case either, this man, or any
successor of his should hereafter take any
course duTcring from that moderation which
hath been used hitherto, your voeaks or vowels
w«,rc changed into mutes, your demonstrations
into doubts, and your eloquence into so deep
silence, us the passim:- bell might ha\c been
tolled for a man so -miickly stricken soeechU.-s
with one demand, to make your hut testament,

* Ut uuusquisquc Theoplnusti discipuhmi le

* posset agnosccre."

It now remains, that in discharge of promise,
ami for satisfaction to curiosity, 1 muke it clear
by the fairest evidence, the moat puie ami nn-
corrupted witnesses-, and with the shorten cut
that my compass in so vast an ocean will ad-
mit, that none of the patriarchs before the h.w ,
none of the priests and prophets under the law,
nor Christ or his apostles at the last expiring of
the old law, nor any of die godly bishops that
governed the church of Goo! lor the space of
one thousand vears in ' auditu novo/ bv the
new law, did ever exercise, approve, or claim
that kind of jurisdiction or any branch of it
that is extended to deprivation of li^ht, suspen-
sion lrn:u ride, or acouj-irali in fro«.i royalty.
For this 1 take to be that ball of wildiire,
which hath cause. 1 so ureal loss of li\es uud
state* by combustion in monaivi.ies.

liefore the law, tho' it pleaded God upon the
breach of his decree to drive Adam out of l'u-
radise, the lively figure of the church, that in

* pee nam culpa:/ he might work for that, ' su-
' dore vultus/ which before sprung up natu-
rally, * beneficio Cr eat oris/ yet he iel't him
monarch of the universal world ; a course far

— Trial of Henry Garnet, a Conspirator [276

0

| different from the manner of proceeding among
many of those llomau pastors, which claiming
the dispensation and distribution of St. Peter's
keys, *clt> Mpx**, have only by the strength and
virtue of that supposed warrant, sought upon
displeasure, and sometimes ( causa inaudita/
not only to expel great princes out of the statu
of grace, but very often also to strip them out
of the robes of majesty.

In the sequestration of ungodly Cain, ' a Dei
facie/ from the face or presence of God, (which
is in effect the same censure which the church
uscth at this day, ' tradendo Sathaiue/ because
these two lords are in one regiment incompati-
ble) we read not' that immediately upon tho
sentence this grievous sinner was set up for a
reproachful mark, whereat cither justice might
shoot, or error might aim, as the king our sove-
reign, who hath been roaved and pricked at of
late : for so far was the providence of God from
arming any creature in this world to the lease
harm, much less the disinherison of Cain, as
for so much as concerned life he set upon him
'his own mark of sure defence, with a seven-fold
curse against auy that should rid him out of tho
way; and beside left him a large scope wherein
to walk upon his own ground almost all th«
world over. To these two I will only add a
third, which is Esau the lost child, whom, not-
withstanding deprivation of that heavenly bles-
siog, by which all nations should by the merit
of the blessed seed, and holy covenant, * in
* plenitudme temporis/ prefixed by Ins provi-
dence, be reconciled to himself, yet we find that
he was inlarged in his temporal possession, secur-
ed iii his peison, and increased far and near in
the wide spread of his posterity. Nay, that
which maketh more to the blemish and reproof
of our rash empirick*, that can hit upon no
other way to cure diseases than by letting
l.lood, I infer, and that upon a sure foundation,
that Jacob, Esau's youn«er brother, but yet by
mercy the true and lawful heir to the promise,
and the chief commander alter Esau's fall,
among the Saints of God, did a long time alter,
not only call him Domitium, his Lord, which
the Holy Ghost approveth, by the title which is
i:i\en by Sarah to her husband, to be a word of
power; hut falling prostrate in an humble
manner at his feet, with words expressing as
j!i*cat love as reverence, did respectfully and
liuly honour him; for ' uondum venit hora/
uer many thousand years alte r, wherein persons
e f.'orumunitated must ex consequent e be de-
puted of dominion, rather thun left to God's

i.hu.-'hsi i..Ciit.

I) »Livi-» n the roots of Judah and of Ltvi, by
the law of Muse*, the separations and distances
are so wide, us neither need to cross another's
walk, to int. .inedule with another's otlicc, or to*
eiii1 se another's dignity. Beside, 1 observe,
th.it among ail the conditions atHrmative and
negative, por-itive and privative, religious and
poiuick, that are enjoined by the first institu-
tion to kin- * this kind of tenure holden of
Aaron or hi> successors ad p taciturn is nei-
ther expressed in the gram, embroidered on

277]

STATE TRIALS, 4- James I. 1606.— «7i the Gunpotsder Plot.

[278

the skirt, nor engraven in tlie seat of his office ;
unless some will argue that the kings of Judah
were as well bound to submit their scepter to
the priests direction, as to receive the l>o<>k of
the law at their hands : tho' we find that it was
totalled by strong Words to the tribe of Juduh,
without any reservation of superintendciicy.
Beside, the plague which God doth threaten
with his own mouth, to send princes in his ;i ti-
ger, and hypocrites * propter peccata popuii'
for die people's «in, were merely idle, if it were
free for us at all tune*, upon these visitation
and sharp corrections, by the pope's help, either
to abate our penance, or to end our punish-
ment. It is expressed and improved in the
scriptures, an a portion of the divine preroga-
tive to chastise kings ; then belike no part of a
priest** jurisdiction, that is consigned to ano-
ther element * Per Deuni regnant reges,' by
God they reign : then not at the popes plea-
sure. Of God only they hold their crown* and
dignities : then not bound by divine laws to
yield up their crowns * in manus Papales,' in
tear ot process, as some more fearfully than
loyally have done in other a«es, when the popes
summoned them. From his mouth they r« ceive
•heir charge ; therefore to him only and no ot her,
they are bound to yield a just account of their
stewardship. It is said by holy Job, that God
places kings in their thrones ' in perpetuum,*
then far from these weak tenures bv copy ot
court-roll, at wil', or in court'esie. but sup-
pose they wax violent, and apt to quarrel upon
the pride of their own. strength, who shall cen-
sure them with any" prejudice to their estates ?
not the pastor by commission, but God bv
prerogative. It is the property of God himself
• Uegna transferre et constituere,* if we believe
the prophet Daniel ; and of no pastor upon
earth. And he will take it for as great pre-
sumption in any mortul man that carries ' spi-
4 ritum in naribus,' and is but earth and dust,
to call hi* vicegerents to account, ns any earthly
prince would esteem in any ordinary subject
to oppose or strive against bis deputies. God
fiveth no commandment in his law, for ob-
servation whereof we need to ask leave of any
deputy subordinate ; for then were men more
absolute in his election, than God in his ordi-
nance. The reverend regard which Aaron had
of Moses in respect of the civil stroke, mnv
tender onto all the sons of Adam (how high
or how treat soever) that live under kings, a
tele whereby, to take the true latitude of a
pastor's liberty so far as concerns tit is com-
parison. For no man shall aver, that God did
ever give a state to any prince (so as the same
were merely independant upon the challenge
of any superior command) but he made him
likewise free from check in the scope of his
sovereignty. If then the question he put in
this sort, as it ought, before it work that effect
which you desire, whether the crown of Kng-
lund remain free from dependency upon supe«
nor command or not; if Simancha, Navarre,
Sylvester, or any of the scholnStical divines will
ttther examine our records, or resort to our

I

parliament, where matters of like quality ought
to be argued and decided, (because according
to the rules of all divines, religion niters not the
forms of civil governments) or search the re-
ports of the pope's own rolls ; undoubtedly
they would receive the same answer which
popes in former times have had, and with the
same quick dispatch that our antecessors in
this case hive thought to be re«pii:itc.

JJv obseniiit; with careful heed the res-
pective manner which was used to the kings of
Israel and Judah, by the legal priest", upon
their transgression in those matters and degrees
which are now drawn within the compass of
the censures of the church, it will appear that
within the five books of Moses, and all the
stories of the kings, no one decree, reason, or
example can be found to make good the formal
process which within some few hundreds of
years have been ru«hly put' in practice against
kings and emperors, upon supposition of con-
tumacy. For though I grant that many of
them did err, and in the same degrees, yet not
one flower of their crowns was blasted ; no not
one hair of their heads ruffled, nor one grain of
their royal dignity diminished. 1 doubt nor,
but if for many priests that were deposed during
the practice of the legal censures by anointed
kings, and those of the best kind also, as
David, Solomon, Joas, Ezechias, and Josias,
there c >uld be drawn but one example of a
king deposed by a Levitical anointed priest, all
the schools, and pulpits of Italy would ring of
it ; but it falls out happily c ut quod pnecepto
* non jubetur, exemplo careat.'

It was hard to pick out any grievous sin
against the firsr table of the law, whereof Saul
was not guilty in Iris declining days : for he
despaired of God's protection, he consulted with
Satan's instrument*, he slew the prophets:
and yet it is clear, that ' ex solo indelebili
' unctionis charactere/ only by the character
of regal unction uncancellaule, he was so far
privileged and secured, as well against lay-
practices as Levitical decrees, that David ^him-
self entitles him * Christum Domini,' God's
anointed (which mnv seem strange, even after
God had appointed David himself to be auoint-
fd in his place.) And the same king and
prophet likewise forbears at two sundry times
to take those advantages against him up»m (it
occasion, which the laws of God and man
allow against an unlawful usurper to a lawful
mauistrate, without a ' non obstante' from above
to moderate.

But one instance above all closeth up the
mouth of contradiction itself »nd unloo*eth the
hardest knot, that the Gordians of our age
can devise to tie upon so smooth and plain a
thread: for God himself bv his own limine-
tion, Ihvs a heavy charge upon ins own elect,
without all shifts of equivocal ion, or opposition,
during the time of their distress, frhile they(sat
mourning by the streams ot Babylon, and hanged
their harps upon the willows, that they should
not only ' quaprere pacein illins civitatis,* seek
the peace of that state, which was tin seat of

279] STATE TRIALS, 4 James I. \606.— Trial qf Hairy Garnet, a Conspirator [2*0

their exile by divine direction ; but, which it
much mure pregnant to this purpose, that the?
should pray for it, ' £t in pace illius civitatis
' suain stabilirent pacem,' and in the peace of
tout state politic, enfold, settle and establish
their own peace and tranquillity. So hard it is
for the policies or passions of men either to
work or to dispense against the directions of
God : and so far is the purpose and providence
of God, from leaving the reins of order loose
in the neck of precipitate audacity.

Now Mr. Garnet, whether your scope and
drift hath been to pray for the peace and pros-
perity of the king's estate, (which of necessity
must enjoy the privilege of Babylon, if you will
needs account it Babylon) I wiLl not appeal to
your own seared conscience, but to that hymn,
* Gen tern auferto pcrfidam,' foully wrested and
abused by your wreckful rage.

And touching the second point, whether you
have sought to enwrap the peace of your pro-
fession in the peace of the state, or not, I will
be tried by the Powder-works. But to "be
short, these reasons and examples drawn out
of the' law of Moses makcth the matter clear,
how far the Levites might undertake to deal in
censuring the crimes of kings, their office con-
sisting altogether in humility and piety. For
though I grant, that assaults were made in
those days upon the persons of some kings,
sometimes by express direction from God,
which ceaseth in our days, and sometimes by
the practice and presumption of traitors, which
are no more to he justified, than the robberies
that are committed daily at Stungate-hole, or
at Shooters-hill : yet for our instruction it ought
t > suffice, that no such plain songs are set out
in the books of divine tablature, and therefore
upon false grounds no state ought to suffer,
either any kind of new descant to make new
division in old integrity, or such a conceited
kind of voluntary, as only serveth to please fac-
tious humours. Sure 1 am, that though the
rod of Moses were once only turned into a
Serpent to give terror, yet the rod of Aaron
was preserved ever, not * in campo Martio,'
but ' in testimonii tabemaculo,' sprouting forth
green leaves and sweet blossoms.

But now to draw nearer to the life of that
discipline, which among Christian* ought rightly
to be reputed regular, to examine principles,
and enter into the school of Christ orderly ;
we must refresh your memory, Mr. Garnet, in
putting you in mind, that our Saviour himself,
who ought to be the highest object of your
i nitation, lived obediently to the laws of the
state in whiih he .was born, though perverted
by pharisaical constructions and glosses ' in
' sensuin reprobum,' and ' ex diumetro,' repug-
nant to that scope of reformation uhich he
Oiily iiiuud at, without practising with discon-
tented persons against the 1 torn an tyranny.
either to displace the governors, or to change
the government. He commanded his disciples
to give unto Cesar what is due to C«esar, re-
serving unto God what of right belongs to him.
Christ would not take upon him to divide a

temporal inheritance, though pressed earnestly
by tne party that was in suit: much less is it
possible that out of passion he would have dis-
turbed monarchies* or transformed monarchies.
To prove further that his kingdom is not of
this world, he reasons a comequenti, because
his followers did not put themselves in arms in
his defence, as otherwise undoubtedly, in case
his empire had been squared by the common
rules of secular affections and devotions, they
would have done; though in our days that ar-
gument was easily discharged, and that want
powerfully supplied by others of that suit, that
account it a breach of the church's liberty to
dissolve or forbid garrisons.* It is true that
change of accidents may breed a cliange of
temper, as well in bodies ecclesiastical as na-
tural ; for the church may be at one time mora
quiet, safe, and prosperous, as we may be bet-
ter or worse disposed, more hot or cold, more
sick or whole at one time than another.
But as it were a strange kind of fit that could
transform a man with Apuleius into an ass ;
so were it as strange a variation in the compass
of the church, to alter patience into power, the
spirit into the flesh, and humility into cruelty.
For philosophy doth teach, that external acci-
dents change inward qualities : but without
an absolute transmutation ' ipsius speciei,' of
the very kind itself, they change no substances.
Therefore I wonder how Gregory 7th and after
him Boniface 8th durst adventure to claim
the exercise of two swords, like wary fencers,
in one scabbard, out of a text pitifully set upon
the rack for lite countenance of a two-fold ju- ■
risdiction, the pm>uit whereof hath and will
cost many lues, ' priusquam sententia judicis,'
touching that particular, * in rem judicatam
' transeat.' Yet I am sure that Christ the law-
maker gives them over in the plain field, when
they fall to dealing blows, and instead of sound-
ing a point of war, cries out to all his own fol-
lowers, ' Cur non pot i us patiuunii' Since it is
certain that ' in patientia possidtntur animr,'
souls are possessed in patience : a maxim far
more sound and honest, than that other of the
school-men, * praecipitantur principes,' by cen-
suring and skirmishing. From the consistory of
our Saviour cometh a direct prohibition, that his
disciples should not * do in man sicut reges gen-
' tium,' domineer in that fashion or manner
that the kings of the Gentiles did: but if those
bishops, that derive their painted and pretend*
ed right of deposing kings, from the power of
Christ, might be justified according to the na-
ture of the pi- a which thry put in, they should
* doininari plusquain rtgis,' more than kings,
both by setting themselves aho*e all kings in
their temporal estates, and presuming by cen-
sure to deprive them of their dominions ; » hich
(setting aside the due homage by such kings
as owe suit and service to supcriois) none could
expect, much less demand <>f other : nor did
ever set their foot so hard in tnr necks of their
peers, us pope Alexander did in the neck of
Frederick. For, is it likely, that when Christ
not only commanded Peter to put up his sword,

251]

STATE TRIALS, 4 James I. 1606.— in the Gunpowdtr-Pbt.

[282

drawn with greater zeal in passion, than judg-
ment upon deliberation, but added also to that
charge a cominination in generality, that who-
toever drew the sword should perish by the
•word ; his purpose was to bind the hands of
hit apostles ? but yet to leave the passions of
tho^e that should succeed them, at hill liberty.
Christ paid tribute unto Cesar, as appeareth,
at well for Peter as tor himself; thereby mould-
ing the measures and proportions of the
church's conformity. For strange it were,
that * here* succedens in defuncti locum/ the
heir succeeding in the place of the deceased,
should by any law be strengthened and enabled
to do more than the testator himself might have
done; or the party to whom delegation is
transmitted, than the principal that did dele-
fate. One rule can never fail, That ' discipu-
4 loV is not ' supra magistrum,' because he can
never fail that gave out that rule: and if a man
abserve it well between the function of Christ
which was ' magisterium,9 and the scope
now shot at, which is ' im peri una,' the
difference is infinite. Our Saviour acknow-
ledged to Pilate, that the power which he
both had and exercised over him, was not
terrestrial, nor temporary, but it was from
above : to which doctrine nothing can be more
repugnant, than the schoolmen's dream, that
aar princes having at this day the like jurisdic-
tion with piety, to that which Cassar held with
pride, should be subject touching their estates
and dignities, to the censure of his disciples,
who in person, whilst his conversation was here
en earth, renounced that prerogative out of
disparity to the soope and end of his office. For
as our Saviour doth prove d minori in another
place, that his disciples ought in reason to wash
one another's feet, because he, that was their
master had vouchsafed out of humility to wash
theirs ; by the same consequence I prove, that
whosoever professeth to be * imitator Petri/ (as
Peter was ' imitator Christi^ ought to desist
from forcible intrusion upon these undue claims
af more than imperial prerogatives, which were
•either challenged by any Levitical predeces-
sor, oor possessed by the testator, nor con-
veyed by the testament. For the grant which
was cooveyed by God the Father to his Son,
' omnis judicii,' of universal judgment both in
heaven and earth, is absolute; whereas the
Charter which the church of Christ receiveth
•f her spouse, is limited and tied to the vali-
dity of the evidence and the strength of wit-
nesses, with the prescription of antiquity.
When Christ knew that some would even in
sassioo make him a king perforce, and mangre
as affection and resolution, ' fugit in montem
' solos f whereas they themselves, as * Succes-
4 sores Christ i, et hwredes apostolorium,' de-
scend from the mount of contemplation into
the valleys of secular agitation, to make a party
for their advancement ' ad regalia Christi,'
ande a difference between his disciples, fol-
lowing a master that had not so much as the
fox, a hole wherein to put his head, and those
dwell is ' regain oomibus f whereas now

the difference, if there be any, is on the other
side. This orderly and modest manner of pro-
ceeding, recommended by the Lycurgus of the
gospel, which is Christ, was continued by the
reverend apostles during their time ; and like*
wise by the godly bishops that succeeded them,
for the space of a thousand years : for further
than the censure of esteeming those as ethnicks
and publicans that wilfully refused to give ear
to the doctrine of the church, 1 find not that
the church presumed, the popes challenged,
nor princes acknowledged.

St. Peter, from whose prerogative many seek
to derive this privilege of deposing kings upon
conviction, or rather supposition, as it happen-
ed for the most part, of contumacy, commands
the faithful to obey even that prince that was a
butcher of the flock, and a bloody tyrant in his
time (because he was superrxcellent) and all
magistrates that were subordinate in charges
and employments under him. He forbiddeth
all good pastors also, which ought to be ( forma
' gregis,' the pattern of the flock, ' providere

* coacte,' to provide by compulsion, or 4 in cle»

* ris dominari,' to domineer among the clergy,
tho' that be within the compass of their own
square, much less meant he to set them over
emperors and kings, that are fixed in the high*
•est element; nay, which is more, he denies
flatly, if we may give any credit to that author
which bears the title of Saint Clement, that
any of his successors were ordained by God,
to be ' cogi)it->res negotiorum secularium,' ex-
aminers or judges of causes that are secular,
which is now become the chiefest scope and
object of your primacy.

Wherefore if Peter were commanded to put
up his sword, when Christ was at his elbow to
heal, as he did, the greatest wound that it could
make ; how much more ought his successors to
keep the sword within the sdubhard, since it is
soberly and orderly put up, and thnt they may
do more hurt in their passion, than they can
help by their privilege ? St. Paul, his fellow
martyr and apostle, would never have sub-
jected ' oinnem an imam/ every soul, whether
they were bishops or monks, regular or secular,
as Chrysostom notes, to superior authority, in
case he had been privy to an exemption of
some souls by express warrant. The quality
of evil princes ought not in reason to exte-
nuate the force of the inhibition, tending to
the peace and order both of church and state :
for then St. Peter would not have commanded
servants to be subject to their lords, ' non so-
Mum bonis & modest is, sed ctiam dy&colis,' not
only to those that are good and modest, but
also to those that are perverse : ' Non propter
metum, sed propter conscientiam,' not tor fear
but for conscience, saith God's spirit. Neither
would St. Jude have censured those malecon-
tcnts so sharply that do 'spernerepotestatem,

* blasphemare majestatem,' not in respect of
their glory, but of their lieutenancy. This is
not the readiest and best resolution, ' manendi
' in vocatione,' of continuing in our vocation
without impatience or strife, to wind our obe-

2S3] STATE TRIALS, 4 James I. 1600.— Trial qf Henry Garnet, a Conspirator [284

dience out of that obligation wherein the gos-
pel found u«, and God until elected us. The
servants of God had recourse in all times to
lawful remedies, upon the offer of unlawful
wrongs : and tho* there could not be a worse
prince, or rather a more ugly monster upon
earth, th:tn he that held the place of Caesar in
the time of Paul ; yet ' Pnulus appellavit Cacsa-
rcm/ and being taken at his word, was sent
thither, to be tried orderly. It was lawful f>r
the prophet Nathan to reprove David for hi-
sin, tho' he did not pluck him out of hi* chair
of state. Our Saviour describing II. Tod's qua-
lity, in crafty circumvention of God's saints,
did properly* and aptly term him, * vuipem,'
a fox, tho' he did not undettake to hunt him
out of his earth. And tho" to warn, admonish,
and assure the Tetrarch, ' non licerc,' that it was
not lawful for him to keep his brother's wife,
were an olfice fit for a John Baptist, and a
worthy pastor of a holy church ; yet he neiihrr
would nor durst adventure to release his sub-
jects of their faith which they ought him by
their homage. Polycarpus the disciple of St.
John, as we find him reported by Eusehius,
dispensed with no breach of any bond, th'»' in
cases that intend peril to salvation, as idol-
atry, and the li!<e. Thf c'lristiaiis of the
first age were neither Alhiniuns nor Xcgrians,
Viyeth Teriullian ; that is, srj;i;ied with no fic-
tion either to those asp ring parties, or affec-
tions of the time, hut (!evu;od the service of
tJ:e sovereign, 'ijuoiiiodo hcuit ^ i j«»is expedient,'
so far as it was I iwful for the per>on, and expe-
dient for the prince himself. How far is that?.
Even so fir as thev honour him, i tit hominem a

«

' Deo secundum, & soln Deo minorem,' as the
n-'xt person to God, and inferior to him alone,
wi;li-n:t making him, as some did, a competitor
with tho Omnipotent.

lionet men will >t.$rt and shrink at those
loud alarms, w!ien thev re id with how <;re:it
obejience and humility, that Mossed fit her
Athaii i^iu-, upon wh-ise shoulders nnr a«;ed
mother the church of God le.incl, in the time
of sh.irpot persecution, tot ike her rest, cleared
hhnseli of the faUe Mispici >'n uvl wrongful as-
pei'M oils i hat were cast on him by deuce of
spe iknii; evil of Constantiu* the great Arian
emperor : his dutiful respect v*ns mounded
upon tli.il warning; of the Holy Ghost, not to
curse i he king in the secret of our conscience,
nor in tho m»*t private and inward corner of
our c ibiriet to wish evil to him. St. Hilary
would not s> much as m vlerato <:r stint himself,
.but iei\es it \\\\ <llv to the disci et ion of a wi^k-
91 fmpo.or, ' quatenus et ipiomodo eu;n lo'pii
'jubeat,* how an I how fir hi would hid h jn
speak. Sr. 'nulirose uc-knoitledgt'th no wca-
pon-» of defence to bo so proper to the priest, as
tear* and privers : for I can pray, saith he, I
C in sub and weep, but I cannot rt&ist anv oilier
way. And therefore St. Jerome to lleliodorus
saith, a ki 15 nileth men whether they will or
no ; a bishop those that are willing. ' Illc ter-
* rore suhjocit, h:c servituli doiiatur.'

To thai question moved by Douatu* out of

faction and scorn, ' Quia imperatori cum ec-
' clesia?' What hath the emperor to deal or in-
termeddle with the church? Optatus a learned
father, answers tunably to the note and ditty
of Tertullian that is mentioned before, that,
since God only is above the sovereign, Donatui
in extolling himself above the emperor, as An-
tichrist out of pride shall above all that is called
God, 'jam hominum excessit metas/ hath now
transcended the bounds of humanity. Tlie pa-
tience and piety of thirty popes laying down iheir
h»-ads upon the block successively, at the first
plantiii£ of the church, to seal the bond of coo-
science with the blood of innocency, may teach
those 1 hat come after, as well to follow their ex-
ple, as to cjaiui their primacy. For though Li-
lierius, a pastor of that rank, was unjustly
banished and exiled from his church ; vtt he
never sought to right himself by the bloody
sword, but rather by that golden rule of obedi-
ence and patience, which our Saviour left 10 hi*
discioles • sub siirillo,' and they to the church
in ' deposits.' Sunaucha with his fellows may
perhaps answer to these passages, tliat the
church was swathed all this while in the bands
of weakness, that the sickle carried not at that
time an edge sharp enough for those stubborn
weed-, and that the faithful had not as yet
rn-sed thcni'eb cs to that height of credit, that
might give life to their execution. Cut if the
constancy of obedience hud been squared by
the liberty of men's election, and this had been
the latitude of loyalty in those well disposed
times when bishops only sought God's honour,
not their own pi aro^utives: surely the church
of Christ had wanted a great part of those raar-
t\rs and confessors, which are ranked at this
day in the Roman calendar. They that take
this scope, may co.iceive and publish when it
pleibeth them, that lay subjects in iike manner
are no longer bound to obedience and loyalty,
than they find themselves over-weak to make
powf rful opposition to ungodly magistrates; and
so con f, mud ail laws of justice in the state, and
all degrees of subjects that in private are bound
t"» live orderly. Tertullian doth notably convince
this paradox, as well of faUhood as levity, by
making a clear demonstration of the strength
and potency of godly christians in his own time,
(which -was among the first) in case they would
have put their forces to the strongest proof,
since all puhlic places, as courts, consistories
camps, and forts, were stored and furnished
with men of that profession and quality.

The legions that were entertained by faith*
less princes in pay, and prospered in the
createst actions thev undertook, might have
purchased a far better fortune at an easier rale,
in case they could have satisfied their own con-
sciences by opposiim against order. If the
godly christians that lived under Constantius
an Arian, would hive sought their ease, by
s'epping uver to the service of Constance and
Gratian that were religious; they might have
caused their own sovereign to shrink at their
transport, that before made advantage of their
humility. If any man viill take upon him

2S5]

STATE TRIALS, 4 James I. 1 600. — in the Gunpowder-Plot.

[«*6

more in these days, saith Chrysostome, than
was granted heretofore to subjects that were
wider infidels, ' Quod majora sihi concredita esse
dixerint,' because they say that more is com-
mitted unto them ; they must be taught, * non

* nunc honoris sui t em pus esse/ that it is uot
the time and place of their preferment, since
they are as pilgrim* in this world, but they shall
in another shew appear more bright and glori-
ous to all men, * quundo ChrUtus apparuerit,

* et tunc cum Christ o comparebunt in gloria/
when Christ appears, and they with him then
shall appear iu glory. 1 hough St. Giegory
confessed) himself to have been go powerful in
Italy, that he needed not to have left among
the Lombards either duke or count, in case he
would have opposed confidently his endeavour
against their rage : yet finding Theodolinda the
queen to have been seduced slily by some ser-
pent of that sort from the sincerity of her
profession, and dangerously withdrawn from
God to Belialy from piety to heresy ; took no
harder course than by forewarning her with a
fatherly affection, and in humble terms to take
heed in time, that she tainted not the sweet
bread of many moral virtues (worthy to he
served in the 'supper of the I*amb) with the
leaven of the fa K hood and impiety of those mis-
believing teachers that abused her credulity.

It had not been hard for Chrysostom, in
respect of the tender love which "was borne
him by his flock, not ' ad aras' only, but ' ultra

* aras/ if his patience had been pliant to their
desires, to have wearied that ungodly princess
Eudoxia, that would never give him rest nor
breath in the crooked ways of her own wicked-
ness. But if the doctrine of some schoolmen
in this age be found to differ so much from the
former demonstrations of obedience and truth,
why should I not complain, That ' nunc defmit
4 esse remedio locus, ubi qua; fuerant olim vitia,
'none mores siut V it is true that long after
this, the officers of the French king, Philip the
Fair, complained, and upon, just* cause, ' au-
' geodasacerdotuin jura, jura rcgia minui/ that
the king's rights or liberties were appaired by
raising the rights and privileges of the priests.
It may be likewise true that is written by a
countryman of ours, that Gregory the seventh
confessed on his deatb-bed, (but with whit
remorse or touch of conscience God knows)

* ex minutioiie hiicorum se saccrdotum promo-

* visse nloriam,' which in divers words is of one
effect: hut yet all bishops were not of that
mind, but keeping fast in memory that ob-
servation of the prophet David, That to drink
of waters drawn from the springs of Bethel,
with peril and hazard of men's lives, w:is ' sau-
' cuinem Inhere,' to drink blood, were as cimtioiH
in quenching spaiks of dissension and i trite? by
charitv, as others w ere to kindle th/ in out of
ambition and vain-dory. For- in c::se»i of this
nature, ' Non est opus saivicntis aniline, u;\

* tnedentis studio:' f>r charity is piitient and
courteous, * Nee inflatur nee est tmibiiio»a.'
Peter hath two keys, one of knowledge, another
of powers these are prepared and fitted also

to two locks, that is, induration and ignorance:
and hardly shall we find, that without both,
and a sure use of both, any strong locks of
opposition or obstruction have been opened.
Wherefore no man need to doubt, but that
amoug so many godly, grave, and learned
bishops, as will ever rank themselves * tanquam

* in acie ordinatu,' to discourage and affright
the forlorn hopes of Simaucha's school, these
positions will sink : and some that have been
loth to yield out of humour, yet v\ ill be forced
to faint out of cowardice.

The godly learned never once vouchsafed to
lend their ears to the deceitful tunes of bewitch-
ing charms; rather grounding their opinions
upon the fourth council of Toledo, by which all
soits of persons are condemned without distinc-
tion or exception, ' Qui fidein regibus suis sa-
6 cramemo promissum observarecontemnerent,'
that contemned or scorned to keep the faith
which they promised by oath to their sovereign ;
taking by this first part, all perfidious traitors
in general.

But that which follows, pincheth Navarre
and his disciples at the very heart: ^Ut ore
' siinularent jurainenti ivofessionem, cum mente
' retinerent perfidisimpietatem,' and with their
mouth dissembled a profession by oath, when
in their minds, or mentally, to use the very
word of our school-men at this day, they re-
tained still the wicked purpose of treason,
indeed Pythagoras imprinted nothing iu the
minds of hi* scholars more deeply, than that
profane verse, ' Jura, perjura, secretum pro-
' dcre noli.'

The Epicure on the other side was satisfied
' modo inentem injuratam gereret, etiamsi tin*
' gua juraret.' And you, Mr. Garnet, (to make
up such a triangle as can lit ver be reduced to a
cube, that is, a perfect square; divulge and pub-
lish to your auditory (which those blind philo-
sophers durst not profess beyond the compass
of their schools) that it is lawful to draw words
to the sense of thoughts, to cast a mist of error
before an eye of single trust, and to deceive
your brother for your own security. 1 am very
sure thejearned fathers neither knew the way,
nor had the will to escape by such a kind of
' deceptio visus/ as directly tends • ad destruc-
' tionem aniline/ For when Athanasius was
overtaken by a pursuivant, and asked 4 Quau-
' turn inde ubc«set Athanasius?' how far Atha-
n:\fcius wib from thence? though it stood upon
his lilt- in a time, as you make of this, of perse-
cution, and he a person far more choice and
dainty for the defence of God's own quarrel, as
appeared l.y hit quick and sharp encounters
with the professed enemu-s of truth in that holy
Nicvnc c<.uu< il, than von are in this kingdom
for the ju«t;rici.lion ot those bad alteu.pts and
impioii* uctioos which you take in hand, yet he
answered ;»» freelv without fraud as fear, * non

* longe :,.i,e*-c Aihanasium :' which was very
true. because lu.' uas the man for whom the
party -mi*.: hi, and cired httie, ;.s appears, how
soon ths'V r.i t him. A man of weak conceit
may apprehend how far our Saviour h.m&clf w;u>

287] STATE TRIALS, 4 James I. 160G.— Trial qf Henry Garnet, a Conspirator [289

from these chyinical conitructions and evasions
sophistical, by chat universal proposition, * Qui-
4 cunque me negaverit,' whosoever denied him
before men, should be denied by him before his
Father, &c. For to put out cautious equivoca-
tors from all hppc of succour in this straight by
their distinction of verbal and mental negatives,
I urge the precedent warning in that very text
before, ' >Ion tiuiere cos qui occidunt corpus,

* et aniinain. non possunt occidere ;' not to fear
chose which have power only to kill the hody,
aud not the soul. For if our Saviour hud left
his disciples such a strength of surety for retreat
upon pursuit, as verbal flourishes, whatsoever
were conceived or resolved in the mind, he
heeded not so carefully to arm them with en-
couragement and hope against assaults of cruelty.

The passages which both you and other of
your complices wrest from the mouth of Christ
himself for a fair countenance of cozenage in
this labyrinth, would rather * commovere nau-

* seam qunm bilem :' though I must tell you,
that singular examples drawn from our Saviour,
that was both God and man, and not only knew
by his eternal wisdom, but was also by his
matchless power to rectify whatsoever seemed
to our dull conceits obscure, are neither rules
of our encouragement, nor warrants for our
imitation. I make no doubt for my part, but
these eggs of equivocation and mental reserva-
tion, never engendered nor covered by fairer
birds in better times, were hutched, as the poets
feign of oiprays, with a thunder-clap. For
among the martyrs and pastors primitive, their
praises were resounded with the -loudest and
sweetest cries, that were most resolute, without
evasions or tricks, tolny down a transitory life in
a moment, to the purchase of a better in eter-
nity ; so far they were from forcing wit, or strain-
ing craft t6 secure cowardice. But to pass over
this just motive of digression, 1 will conclude
the chief point, which is the care best men have
ever had, to prefer obedieuce before security,
loyalty before lite, with a discreet answer of a
pope to a king of ours, which may serve you for
a better precedent in the course of patience,
than that either of Gregory 7, Boniface 8, or
Alexander 6, in their practices of extremity, if
it so stand with your pleasure, ltichard the
holy warrior, having committed a Norman bi-
shop prisoner, whom he took in field against
him with his coat armour upon his back, re-
ceived within a while after an urgent request, if
not a powerful instance, from the pope, at the
earnest desire of other bishops, for the prisoner's
enlargement ; whom it pleased his fatherhood
in the letter, by a word of indulgence, but yet
without that ground of equity which moved the
apostle, 4 obsecrare pro Alio suo, quern genuit
' in vinculis,' to press Philemon for his son One-
simus, whom he begat to Christ and his church
in duress, to call his son. The king wittily al-
luding by his answer to that place in Genesis,
where Joseph's parti-coloured and pied coat
was offered to the aged father stained and
sprinkled with blood, sent not the prisoner who
remained fast, bat the coat armour, which was

loose, to the pope, inquiring * a beatissimo Pa-
4 tre ' (by this mild question) ' an hiec esset filii

* sui tunica r* whether tins were the coat of his
son ? The pope surprized with a demonstration,

. and observing needfully the marks which could
not lye, returned a grave answer to the king,

* Nee hanc esse filii sui tunicam,' That neither
this was the attire of his son, nor he purposed
so to acknowledge the party that was taken in
that coat, and therefore left him wholly to civil
justice, and the king's gracious pleasure. For
it is true, that ambition, which is most bold
upon advantage, is most cowardly upon sur-
prize : and howsoever humours may sometimes
urge minds that are not evenly balanced with
discretion and conscience, to undertake attempts
ever above duty, and oftentimes above their
strength ; yet second wits observe the slips and
errors of the first, and thereupon concluding at
more leisure out of judgment, that * vis expers
' coiisilii mole ruit sua/ they begin likewise to
fear that vast desires as well as buildings, where
foundations are nvt firm, sink by their own
magnitude. It is not possible that humours
should be durable, considering that * materia

* prima,' the first matter, out of which they
spring, like Proteus, is capable of as many shifts
and forms as the world hath variations and
accidents, wearing and consuming like a gar-
ment with incessant use: but the moral virtues
which have their root in the Deity itself, and
derive their influence from grace, must of ne-
cessity be co-eternal with their author, who
doth not only plant, but water, aud produce
out of his own goodness, correspondent fruits
that suit their original.

By these demonstrations we learn what laws
were current, what bounders kept, and what
course and manner of proceeding wus observed
towards princes by modest bishops, which either
lived very near, or imitated those that lited
next to the precedents of apostolic humility.
Now therefore it shall not be impertinent, the
subject moving in due place and with due cir-
cumstance, to descry, not by idle imaginations,
-but by evident impressions, how covertly, and
as it were by stealth, incroachments crept upon
the carpet, before they durst by any forcible
attempt invade the seat of power : * et cum
' dormircnt homines, venit homo inimicus;' and
when men were in sleep, the devil came, ' et
' superseminavit zizauiu.' It is confessed in-
differently by all persons of all sorts, that art
either judicious or sensitive, that those maxims
which pierce to the center, and touch the very
life of conscience, ought rather to be fixed upon
the pules of constancy, than carried upon the
wheels of change ; and that not Israel alone,
but ail moral and indifferent affections ought to
answer Amen to the curse which God pro-
nounced with his own mouth against all men of
whatsoever quality, that dare presume to re-
move or put aside land-marks, or bounders of
jurisdiction, which preserve peace : and yet bj
tract of time and long experience, we sec that
4 ab illo motu trepidationis,' ever since that
trcpidatiou or quivering, as it is termed by

3S9]

STATE TRIALS, 4 James I. 1606.— in tlie Gunpowder-Wot.

[200

astrologers, winch prevailed in tlie minds of
tearful princes, under powerful strains, there
liave been many variations of degrees and dis-
tances in the conclusions of church government,
especially within these last 6Q0 years ; which
moves wise men to resort to the judgment of a
crave philosopher, discoursing of diversity of
times and persons that did sway those times,
either by predominance or art, * quo minus ob*
* oriu aberant,' the less distant they were from
the first original, the more perfectly they dis-
cerned truth : and of the same mind is Tertul-
lian, ' perfection prima,* the nearer the spring
head, the purer streams : winch is the scope of
our industry.

To rip up matters therefore from the very
root, without obstruction or passion, we may
observe, that so long as the plough of persecu-
tion did not only make deep furrows on the
backs of godly bishops by tort ore, (which the
prophet by the text in the Psalm, ( Super dor-
' sum meum fabricaverunt peccatores,' seemeth
to touch) but by vexation and anguish also in
their very souls, which those humble spirits
feel that are most sensitive of die least scratch
given to loyalty ; it rent up by the roots all
those weeds ot ambition and emulation which
in calm seasons are apt to spring out of the
rank grounds of original infirmity : for till the
blessed reign of Constantino, wlterein the rage
of persecution began to cease, I find almost
universally no o titer kind of strife among the
godly fathers, than whose counsel or endeavour,
by a religious and modest kind of emulation,
might be of best use to the propagation of the
Church's limits, and of God's glory. The
Church itself (which is the body mistical of
Christ) might by analogy be properly resem-
bled to the stomach of a body natural, which
though it receive much, yet makes equal distri-
bution, by dividing and dispersing that which
it receives, to tlte use and sustenance of all the
other parts, which would otherwise decay, and
by degrees waste and perish.

If all this while a tribune had stood up to
complain against the Church of Rome, us Me-
seoius Agrippa did against the senate, com-
paring it to the belly, which devoured ull, and
did no good, the poorest and the weakest mem-
ber would have utterly disclaimed and dis-
avowed the least sense of such a wrong : but
if the belly afterwards by caring only how to
feed iuelf, did pine the other parts (as the po-
pular* did then suggest) and by transforming
the orderly and well compacted body of the
state politick into a monster, by so great dis-

Cx>pmtion of nourishment, did violate the
ws of nature, and dissolve the bonds of union,
we must confess, that both Menenius with
them, and, if the case be like, all faithful pa-
triots and members among us, have reason to
require remedy.

It is certain, that the end of these first bi-
llions was then to feed the flock, not to fill the
pail; to spread the faith," not to extend the
line; to draw kings to perfection, not to de-
foe them from their states ; to settle peace,

VOL. II.

not to raise dissention ; to prepare the snbjects
hearts to obedience, not to inflame it with pre-
judice; to be at peace with all the world, hold-
ing peace of conscience to he all in all, so they
might train to Christ, and in no case to shew
tlieuiselves ' percursorts/ ot- ' violentes,' which
the canons of the church, beside the prohibition
of Paul himself, will not suffer.

Some of the latter, but be?t learned, writers,
finding by the curious examination of sundry
passages, and infinite interpreters, how hard,
or rather how unpossible it is to prove their
title to this high prerogative of doposingfkings,
by direct evidence out of the word of God, and
such witnesses of record as are above excep-
tion ; resort to prove by charier, grant, and
privilege from princes pieties : as for example,
from Coustantine the first and best, Phocns
the first and worst, Inaking of the West Saxons
that was religious, and king John that was im-
pious, as well ' sans foye,' as his title was ' sans
terrc.' In which crew, some intending serious
devotion, others pretending feigned satisfaction
to other ends; and all, as the times then
taujjit, that" no seeds spriug up more speedily
than those which are sown * in area Dominica/
for redemption of souls, left them better earnest
of tlieir hopes by gift, than our Saviour did in
his testament by legacy. Against the pretended
charter or donation, which some of the canon-
ists more zealous than judicious seek to derive
from Constant in e to Sylvester, though 1 need
say little, because the best grounded judgments
and most modest spirits of that sort, have torn
away the painted visard from that warped face;
yet because in mutters of this moment too
much cannot be said, I mean, more succinctly
tlian the nature of that subject, being once un-
dertaken, doth permit, to press some short ar-
guments. First, how unlike it is that Sylvester,
the next bishop i»ut one to that worthy and re-
nowned rank of martyrs that lost their lives for
the profession of Christ, should upon the first
pause of respiration to take breath, after so
many manful combats against God's enemies,
abuse the favour of so gracious a rime, by hunt-
ing after the vain tenures of principality. The
bishops that have kept themselves above water
all (his while, by the strength and favour of that
powerful hand, which supported Peter on tlie
seas when he was at the point to sink, by
learning now to swim suddenly with tlie blad-
ders of the worlds ambition, might have cast
themselves into greater danger of drowning in
the rivers of Damascus, than in the Red-Sea
that the saints passed over.

Platina reports out of tlie pope's own re-
cords, that Sylvester refused at the hand of
Constantino 'diadema geinmis disiinctum,' a
crown or diadem set with precious stones, as
an ornament not convenient nor agieeable to a
pastor in his place. Though godly Nestor calk
it only ' signum superbie,' a sign or bndue of
pride; Sylvester should have been found guilty
nut of align, but of pride itself, and that in
die highest kind, by the grand jury of all his
predecessors saints in heaven, iu case he had

v

$01] STATE TRIALS, \ James I. 1606.— Trial of Henry Garnet, a Conspirator [292

accepted what these men certify to have been
offered. Among the fathers and Motorics of
the church (how copious and large soever in ex-
pressing the great favours which the spouse of
Christ received by the piety and bounty of this
emperor in other kinds) appears no scrip of
evidence to make good this grant; which were
nu argument of great ingratitude, if they had
either heard of any disposition in the prince
to give it, or in ihe pope to accept it. Neither
is it like that so leligious a prince would have
left that to his son, that he gave to the church,
nor from thence his godly successors, as Theo-
dosiu->, would have detained it. Betides, all
writers prove how powerful the lieutenants of
the Greekish empire, whom they called Ex-
archs, were long alter the date of this pretence,
which could not stand with the strength where-
in hereby they strive to plant the papacy. I
find by direct acknowledgement, 4 \enisse pro-
• ventus, &c.' that revenues came from certain
places for the maintainance of the church of
St. Paul, erected at the humble suit of Sylvester
hy Constantine; and from Sardinia, by the
report of some, to that church which his holy
mother built. Again, that the tributes were
conferred on the churches, which some cities
payed into the exchequer in former times: and
these I take to be the shadows and colours of
this idle dream. For of the charter itself,
which exceedeth ten times in value all that is
recorded touching churches in particular, and
in rt spect of a greater eminency and preroga-
tive, should ha\e carried a far greater reputa-
tion, and made a fairer shew, there is not so
much as a mark whereby they may take their
aim that are most ambitious. How little cre-
dit, strength or honour any church can gain by
deriving charters from 1'hocas, a lascivious
faithless tyrant, wickedly embrued with the
slaughter of Mauritius his master, wife, and
heirs, and usurping that estate unjustly, 'by the
countenance whereof he was bold to give more
than either of right he ought or could, I h nve
to their opinions that love to measure claims
and titles rather by the line of equity, than by
the lust of ambition. But yet to muke more
of a tyrant by vouchsafing a short answer to his
shadow, than in conscience is requisite; I first
infer that such charters granted chiefly upon
ground of cunning, and with a purpose to
maintain the plot by party, which was un-
dertaken and begun by fraud, might either
have been afterward revoked by himself, or an-
nulled und repealed by his successors: and fur-
ther say, by judgment of the hot civilians, that
no prince's act is warrantable, without the pub-
lick assent, accordiug to that maxim, ' Quod
' oiniies tangit, ah omnibus approbart debet/
that tcudeth to the state's prejudice.

Last of all, I prove that our country in par-
ticular could take no copper by this transpo-
sition, admitting it to have been sound and ab-
solute, because we were excluded from the
care, protection und providence of the Roman
empire, very near two hundred years before
that Phocas with his bloody hand began to steer

that monarchy. For after that, Actios, lieute-
nant for the Roman emperor in the parts of
France, did only tend instructions and orders
to the wasted Britons how to range their bat-
tles, and dispose their fights, with a careful, and
yet a final answer, not to look for any more
supplies or aids for that estate, which then fell
into faction, and was no longer able to support
itself; the BritonsNholding themselves aban-
doned; (in which case all laws free them both
of duty, and dependency) after many bloody
battles under their own kings against the Scots
and Picts, fell into the Saxons hands, who like
a Pharaoh that never knew Joseph or Ins fa-
ther's house, erected a brave monarchy, tho'
sometimes quartered and divided into many
parts among themselves, and maintained it in
absolute authority, without acknowledgment of
any foreign or superior command, lilt by a se-
cond or third relapse, it became a prey to the
Norman conquest. Wherefore Phocas having
neither possession nor right in this state (left by
negligence, or abandoned by necessity so ma-
ny years before,) could convey no more to the
church, chun he either had, or ought to have,
which was ' accidens sine subject o, individuum

* vngtiin,' and a ' nihil indecliunbile.' The con-
tribution of Peter-pence to Home by Ina, being
called in the Sax on histories the king's Aline-
sou, in the laws of Canutus, ' Larga Regis be-
4 ni»nitas,' and in that abstract which is left of
the Confessor's and Conqueror's decrees, ' Regis
' elecmosyna,' proceeded, as the words import,
not of duty but of charity; and in respect
of any temporal prerogative, which is the key
of these aspiring claims, doth rather prove the
pope then silting to have been king Ina's
beadsman, than king Ina then reigning, to have
been the pope's homager.

1 could all edge also an allowance of a special
mansion for English pilgrims that were drawn
to Rome about affairs, tearing that title to this
day, in respect of the great piety and bounty of
the Saxon kings; which falling within the com-
pass of that natural contract * Do ut des,' co-

: piously handled by the civil law*, and compared
with the contribution, may rather prove an ex-
change than an imposition.

To the colour* of king John's donation, who
was as likely to have parted with his soul as
with his crown, and upon the same conditions,

j if necessity had ptessed him; 1 could give sa-
tisfaction by that sound note of a monk of Saint
Albans, according tunably with that former
concerning Phocas out of the civil laws, that,

* Regis non est dare regnum, quod est respub-

* lieu, sine assensu Baron urn qm tenentur reg-
' num defendere :' and therefore he cannot give
awny the ports and cities, which are branches
and members of the main. But I will take it
up a strei^hter link, and avow by Matthew
Paris, that so far was the parliament, which he
termeth ' Regni universitatem,' from assenting

* detestanda? obli<;ationi' to this detestable ana
hateful band, a< it is fitly called by the monk of
Westminster, that the inetropolitate himself,
4 pro universitate contradixit,' contradicted and

293]

STATE TRIALS, 4 James I. 1606.— m the Gunpowder Plot.

[29*

withstood it in the behalf of the whole parlia-
ment.

The judgment of Philip the French king upon
the publication of this charter is much com-
mended by a writer of that age, for the defence
of this Paradox, which he thought would prove
' peroiciosum regibus et regnis exemplum,' a
dangerous example, and fearful precedent both
to kings and kingdoms. He would have men
reiort to Peter's successors about matters that
concern the soul, and not ' de regnis, guerris,
' vel militia/ which do not belong to him. Last
of all, the saying which was luckily inserted in
this charter or donation, namely, * Salvis nobis
1 et heraniibus nostris justitiis, libertatihus et
' regal i bus nostris,' makes it absolutely void
and of no effect : the main prerogative being
safely preserved, by God's providence, which
the king would otherwise have let blip, by a
circumvented and over-awed facility. It is re-
ported by the monk of Westminster, a witness,
according to the stale of those times, of best
regard, that the pope residing and abiding at
uon%, this detestable graft) t was burnt. The
author of Eulogiutn addeth further, that it was
released ' cum omni ndelitate et homagio,' by
the pope's direction to the English parliament.
And sir Thomas More, that lost his life in de-
fence of the pope's primacy, deserves best of
aoy to be credited in my conceit, avowing,
first a weakness in the king seeking to subject
his crown to superior commands ; and next, in •
the grant a nullity. Besides, not only sir Thomas
Mare affirms, that the pope's imposition, with
the king's concession, was never paid ; but it is
farther fortified by addition out of the roll of
parliament, in the fiftieth year of Edward 3rd,
that wlkett the king was threatened with a cita-
tion from Home for detaining dues upon this
grant, with large arrearage, the whole body
spiritual and temporal of the kingdom there
assembled, after grave deliberation and long
advisement, ' resisterent et con trad icerent, avec
' Unite lcur puissance;' and upon tliese grounds,
that tbe charter was against the king's oath at
kts coronation, and without the voice of his
parliament.

Since therefore Pbocas, Ina, John, nor Con-
stantuie, add any further weight to the pretence
of a deposing interest, than was in charge be-
fore; discretion and observation will judge
whether the state of the Roman bishops were
not had in greater reverence while they sought
to win by piety, than to strain in passion, to
bow than to break, and to temper than to ex-
asperate. Religion and humility then were the
corner-stones of that stately front which the
world so much at the first admired in the
church of Rome, tho' afterward by the change
of bishops in that see, and of humours in those
bishops, so great a Iteration was found, as Mi-
aervm coming afterward to Athens, could hardly
take notice of her own ship, nor Constantiue at
Borne of his own nurse: nor, as St. Hierome
notes of painted women, that cast up their eyes
to heaven, if we consider how many false
tobars hart been set upon the pillars of

church government, hardly Chtist of his own
creature in the time of pope Alexander the 6th,
if he had been put in mind to call on him. In
the beginning it agreed with Daniel's image in
the head of gold for godly government, in the
breast of silver for unspotted conscience, and
in the legs of brass for incessant industry. But
afterward in succeeding age«>, the heads of many
popes grew humourous, their breasts avaricious,
and their le*s idle.

That holy Nicene Council, whereof I never
speak without reverence and due regard, in
that .great division which was made of the pa-
triarchal jurisdictions according to the state of
the church in those davs, for establislunent of
discipline and preservation of unity, speaks not
one word of any temporal command, much less
of any right in suspending or deposing kings, or
absolving subjects from their oaths of obedience
and loyalty, to be left in the nature of an Ilier-
lome to the Roman bishops by primitive ac-
knowledgment. But as Sallust, very gravely
and like a faithful patriot, complains touching
the state politick of Rome in bis own time, that
* postqunm divitiae honori es.se cue p ere et eas
' gloria, iinperium, poteutiasequerentur;' Fac-
tion and pride began to creep up to the seats of
senators, and the publick justice of the state to
shake : So likewise in the church we find, that
upon like corruption like disorders grew, and
many weaknesses began daily more and more
to disclose themselves in those bright sun-shine
days which the saints enjoyed by the bounty of
a better prince, as cockle starts up when corn
grows ripe, which before was either shadowed
with discouragement, or suppressed by disci-
pline. I speak not this, because some such
kinds of heats and quick distempers have not
sometimes happened, and may not by occasions
fall out again between God's own elect, as Pe-
ter and Paul, Paul and Barnabas, and the godly
bishops in this very council, which I press, tho'
with that measure which becomes the ministers
of God and his apostles successors, because it
pleaseth him sometimes out of our error to
raise his own honour, and to make virtue per-
fect and compleat by infirmity : but to make it
plain, that plenty is the daughter of prosperity,
ambition of plenty, and corruption of ambition.
For after that bishops were admitted to appeal
from civil courts by the emperor himself, and
their sentences by imperial authority were made
equal to his own ; they began to raise their
crest, and within a while, as it is testified by
one of the most antient approved writers of the
church, ' Episcopatus Roman us non alitor
4 quam Alexaudrinus quasi extra sacerdotii fines
' egressus, ad sccularem pricipatum jam ante
' delapsus est :' Tho see of Rome, in the same
manner as that of Alexandria, as it were ex-
ceeding the limits and bounds of priesthood,
had slid into secular principality; tho' the bi-
shops of neither of those sees, as we may as-
su;c ourselves, were ignorant of Paul's prohibi-
tion to ail degrees of pastors, that they should
not intermeddle with secular affairs, so far as
concerns an over-dropping of .the regal plants,

*M] STATE TRIALS, 4 James I. IfM^TrM'qf I kny Garnet, a Conspirator [290

because a bishop should no more live out of the
element of the church, nor a monk out ofc a
desart, tlian a tisti out of water. For Christ
fled into the mountains when the people would
have made biui king : and bishops ought with
Joseph rather to lea* e their clonks behind them,
than to consent to the charms and vain entice*
men ts of the woild, which like the wanton wife,
of Potipliar stretchelh forth her anus, and,
tvith the Syrenes, struineth her voice to draw
them within the compass of lentation, and
then taketli hold to drown them fti sensuality.

Now, whereas it is said by Socrates, ' Jam
' ante dclapsus est/ that the see of Home did
slip before that time, whereof he speaks, into
secular principality, 1 am induced by the report
of Ainmianus Marccllinus, a grave writer,
though no christian, to take my level somewhat
higher for the finding of my mark : for he living
in that lime about the court, and observing as
k were from the main top of the temporal
estate, what course was kept among all sotts
and qualities of persons in divers elements,
makes mention of a bloody slaughter in a church
of Rome, %here the christians were wont to
meet for the celebration of their mysteries,
about the violent competition and contention
between Daraasiw. and Ursicinus for the papa-
cy; and taketh notice of 137 carcases drawn
out of that church where they met about elec-
tion : and further writcth, that Vivianus, then
lieutenant to the emperor, was glad to make
retreat into the suburbs, till the rage were
tempered, or the strife ended. After this, as a
mr.n partial to neither part, and therefore
in nil likelihood the more indifferent and just
in deeming rightly of the tnie state of the cause,
he gathers the chiefest motive of contention and
emulation about the means of compassing this
height, to proceed from the great ease, wealth,
and honour, that prevailed and were surely
settled and established in that dignity. His
reasons are, for that * Matronarum oblationibus
* -ditabantur,' they were enriched with the of-
ferings of matrons or great Indies : they rode
in coaches publicly: they were choicely suited
iu their apparel; their diet dainty, mid some-
times above the rate and use of princes iu the
times of their hanq&iting. That Damasus a
competitor was one of thc<»c, Ammiaiiiis doth
not aihrm; much les> do 1 believe, finding
mitli what respect and reverence St. Hierom
that had been himst It" a priest of Rome doth
speak of him : yet the manner of his climbing
and aspiring to the sent was scandalous, not !
only uuto such as were religiously devout, but •
even to Animism us jilarccllinus that was but }
morally precise: as doth appear by that grate ,
judgment which he gives of the blessed state, :
which as he thinks the bishops of Koine might j
enj°V> in case the? lived in that sober manner, i
with that bare din, mean apparel, and humble ;
looks cast to tlv uruund. which other bishops j
in the country did, neither tasting nor oteoinnis |
those choice pleasures and delights which the j
delicncy and great abundance of that place
aHurded them.

This passion of a writer whom we account
prophane, in respect he was un regenerate to
Christ, nor nursed by the breast of his spouse
the church, puts me in mind of a zealous
passion in Hector Boetius, a great Roman
Catholic, upon this very subject in the Scotisd
history, ' Uujusmodi antistites quam sunt illo-
' rum dissimiles quia diversa ingrediuntur via
' cum locum illorum occupeut, Ike.9 He won-
ders at the difference between those bishops,
and others at this day, which succeeding in
their places, take another course: they glistered
not in gold, they were not resiant in princes
courts, they were not attended by guards, nor
skilful in the art of dissembling, more gainful
by many degrees than that of poetry, which
the universities use to crown with laurel. This
moved Boniface, I mean the martyr, not the
challenger, to prefer the devotion of the golden
bishops, that in the church's povertyadmimstered
with greater fervency in wooden chalices, before
the vanity of many blockish bishops that in a
richer state w ith more solemnity and less zeal,
administer in chalices* of gold; because, as
Hierom notes, external riches add not to tho
worth of him, * qui corpus Domini in canistro
' vimineo, sanguinem in vitro portat ;' that car- -
ries the body of our Lord in a wicker basket,
and his blood in a glass. I would not be con-
ceived by this speech, to favour their ridiculous
conceits, that labour to draw the substance or
the value of those vessels in which sacraments
are administrated, to the first simplicity : for,
the reason of David's judging it indecent for
him to lodge in * domo cedrina cum area Dei
' esset sub pcllihus,' draws me to a greater
estimation of vessels appertaining to so high a
mystery. For sure I am, that the value of
the content, doth infi-iitely surmount the con-
tinent; and ' in adiaphoris,' that is, thiifgs in-
d liferent, we are left to the rule of decency.

My only purpose is but to observe and tax
the declination of piety, together almost at
one instant with multiplication of metals and
minerals, the labour which is made for charges
and employments for commodity alone without
conscience; and to limit those excessive grants
* in manu viva,' which our antecessors did * in
' manu mortua/ and the ranging of internal
piety to external pomp, though of both it were
better, that we wanted means that are super-
fluous, than the moderation that is necessary.
For Chrysostom notes two treat absurdities in
cramming churches till satiety constrain them
to regorge; the one, that laymen are deprived
of occasion to shew charity; the other, that
the pastors themselves often neglect theirduties,
to become collectors. This is no ground for
gleaning from the church, which at this day
doth mther need ' Lurgitore hilari, quitm in-
' tcrpiete muledico :' but to prove that argu-
ments against excess and height, are the Mirett
tenures, and the strongest pillars of stability ;
tor ' in se mauna ruuut, summisque uegatnm
' est stare diu.' In defence of Ammianus Mnr-
celliuus from exception either of partiality or
iguuraoce in that which he tpuaketb of the

.1

297]

STATE TRIALS, 4 J amis I. KJOfl in the Gunpowder Plot.

[20»

matrons, I vouch a manifest decree set fortig
not by the leeches and blood-suckers of the
Church, but by Valentinian and G rat tan, reli-
gious and worthy princes, against any gain to
be made by the* priests of the church by ladies
offerings; and this decree was published by
Daiuasus himself, according- to direction of
state: which proves that Ammianus in the
judgment which he gave touching the motives
of distention, and opposition, spake not idly.

To make the case more plain, whosoever
raiseth any further doubt, may learn of St.
Ilierom, that some such eicess (or at least
oversight) was censured about that time : where
he seems not to be so much grieved and per-
plexed with the publishing of such a law light-
ing upon just desert, as with the motive of that
law, which was greediness. Therefore our
English bishops in the time of Edward 3, as-
sented (though unwillingly) to the limiting of
church revenues, when the state's necessity put
in a caveat. And the pope himself pretended
neither quarrel nor un kindness to St. Lewis of
France, for inhibiting the grant of any more
lands or revenues, than had been converted in
former times to churches without his privity.

The ground of this respective caution and
moderation, -I take to be derived from the
course which Moses held, being a person as
well publicly wise, as spiritually devout, in
commanding all the peoples offerings of bene*
voleoce and piety to cease, after he had drawn'
in that proportion which was sufficient for the
furniture ot the tabernacle, where God was to
he served and honoured. For the least excess
in things (which with moderation are laudable)
doth easily degenerate into vice, and all turns
to humour that transcends the due proportion
of nourishment. We may soon be taught in
Genesis, that they which could be satisfied with
no moderate degrees of altitude, in seeking to
build castles in the air, before their spires and
battlements might touch the clouds, were con-
founded in their own idleness.

You have heard how the churches of Rome
■bd Alexandria were ingulfed in the depths of
•ecular principality to the wound of monarchy,
although ' spiritual is potestas non ideo pne-
'sidet, ut terrene in suo jure prejudicium fa-
'ciar,' saitb a learned schoolman. But how
hardly in the mean time the civil state did
brook these slips, let us learn (if we deal indif-
ferently) of Orestes, who was then lieutenant
for the emperor, and complaineth bitterly of
tome bishops, * Quod per eos non nihil de
1 auctoriute eoruin detractum esset, qui ad
' magistratus gerendos design ati essent,' that
tbey drew much from the authority of those
persons which were appointed to bear office.
This gallant gentleman beznn very early to dis-
cover (and by the break of day) by what de-
grees the mystery of ambition began to mine
into the strength of monarchy : he feared (and
not without great likeliliood) lest princes seek- ,
i»f to resame their rights, might in time be
dealt withal, as the badger was by the hf dge-
«M(: for being wounded aith the prickle* of;

bis offensive guest, whom at the first he wel-
comed and entertained in his cabin as an in-
ward friend, he mannerly desired him to depart
in kindness as he came, but yet could receive
no other satisfaction to his just expostulation,
than, That be for his own part found himself to
he very well at ease, and they that were not,
had reason to seek out another seat that might
like them better. He foresaw by this forerun-
ning light, That misletoe and ivy sucking by
their strait embraces, the very sap that only
giveth vegetation from the roots of the oak and
hawthorn, must bloom and flourish of necessity,
when the trees should wither.

I know that civil jurisdiction in that good
measure which is compatible with a pastor's
charge, is so far from that inconvenience of hin-
dering the growth of piety, as some conceive,
as it rather ripens the fruits which in a further
distance from the sun, are either nipped by the
frost, or blasted by some bitter wind : so as ac-
cording to that of N ahum, ' Residuum locusts

* brucus devoret.' I tax those only that pre-
sume by forged evidence to contend and strive
with mighty princes for their seats, or attempt
to set them besides their thrones, which the
blessed Virgin makes, a portion of God's own
prerogative. Otherwise I say with Paul of all
the faithful, ( Si in illis mundus judicahitur, in-
1 digni sunt qui de minimis judicent?' If the
world shall be judged by them, are they unwor-
thy to decide matters of least accompt ? And
again, ( Si Angelos judicent, quanto magis se-

* cularia?' and therefore Epiphanius the bishop
of Cyprus is highly commended in the stories
of the church, for the discreet temper and de-
cent order he held in managing affairs both ec-
clesiastical and temporal. The council of Car-
thage understood very perfectly the way to
moderate between both extremes, and in fan-
ning away the smoke of pride, to preserve the
gloss of unsoiled modesty. But the patriarch
of Constantinople finding by careful observation
of times and accidents, what strange effects the
church of Rome had wrought in raising patri-
archal jurisdiction as high as the jealousy of go-
vernment and incompatibility of imperial pre-
rogative would endure, adventured upon the
wings of pride, to mount so far above the pitch
of his other partners, as if St. Gregory himself
had not abated this presumptiou more by the
strength of arguments than the edge of power,
it is not unlike but he would have made himself
in the end by faction of adherents ' similem al-
1 tissimo.'

Thus easy it is for many grains of sand by
Neptune's blessing to make a shelf; for many
Peter-pence by Ina's bounty to make a bank ;
and by gathering a great heap of sticks toge-
ther by Minerva's providence, to make a nest
hi Mi and wide enough for long winged hawks to
breed in tlu» proportion of their own earnestly
affected, and long laboured sublimity. Such
were the dtifrs and devices for the space of
many years of certain Roman bishops, often
straining, but never reaching to their end, which
was, to make u rise 90 high, as might carry them

290] STATE TRIALS, 4 James I. 1606.— Trial of Henry Garnet, a CmtpmUor [300

over the heads of emperors, till more than 300
years after the succession of Constantino and
his successors into the east ; their lieutenants
wanting now that Gorgon's head of universal
regiment and united strength, whereof they had
disposed formerly; till that unlucky division of
one eagle's neck into two, w hich made the fair-
est bird a monster, as according to that one ;
noted maxim of our Saviour, * Oinne regnum in
* sedivisumdesolabitur/gnve way, though much
against their wills, to that improvement of the
jurisdiction of Peter's keys, which hath not
since that time been less feared, than at the first
it was favoured. The first motive of the trans-
lating of the western empire into the east, as
Socrates reports, was chiefly to this end, * ut
' vulnera qua; erant a tyrannis inflicta, illis jam
' sublatis tollercntur/ for the cure of those
wounds which were given by tyrants, now that
they were rid out of the way. Men liked of
this, and commended the discourse that urged
it, till experience, together with their own dis-
asters, made them find, that, of both extremes,
it is belter to admit an outward distemper, than
an inward combustion. The ebb hath not been
greater by the waining of the empire, than the
flood hath been ' ex consequcntc ' by the wax-
ing of the church : which finding that the beams
are brightest, and her glory greatest * hile the
sun is under our horizon, from whence she bor-
rows and derives her light, hath sought ever
since with her best diligence to quit herself to
those rays imperial which by vicinity may
weaken, or by conjunction may darken her.
It is true that Constantine upon the change did
at the firs' exempt bishops only, but not priest*,
from convention in civil courts; the first step
to that greatness, which was * in objecto,' to
the papacy. Gratian in the year StfO, and llo-
norius in the year 406, confirmed it, Theodo-
sius and Valentiniun were pleased for increase
of favour, that priests also in lieu of civil judges,
might take their trial before bishops, if the par-
ties interested in the cause could be satisfied.
Justinian more reservedly than his antecessors,
expounds the meaning of the grant of matters
only appertaining to the church, not otherwise,
and for his labour recti vet h a wipe »t tin* hands
of Bellamiine. (leraclius t-xempteth bishops
nnd priests absolutely from all courts, except-
ing only that of delegates from the emperor.
But Guicciardiue, no Lutheran or Zninglian, as
many term persons o( a diverse judgment in
our days, but a Roman Catholic ; no German
or "Helvetian, but an Italian ; no simplest, hut
a man as deeply learned, as discreetly judicious,
observe! h, That thui'jh some dark cloud had
overcast a portion of the beams imperial in the
highest spheie, yet till this time of the transla-
tion of the scat to Constantinople, and a good
space after, many tokens bo'h of humble reve-
rence, and respective regard to the civil state,
were evident. For the pope* without admit-
tance either of the emperors themselves, or of
their lieutenants called Exarchs, ascend not to
toe throne. The popes in all their grants and
public dispatches, set down the date by these

words, ' regnante domino nostra/ such or Such
an emperor. Though by variation of times,
which breeds a change in all bodies, states or
governments benenth the moon, this good man-
ner began to be first abated, and in time deter*
mined. After this unlucky separation of the
Greek head from the Latin body, first, it fell
into a kind of giddiness; after, into imbecility,
the cause of dangerous convulsions in those
estates; and like top branches that are not
duly fed and nourished with the lively sap
of their own native root, they fell afterward
to warp and wither both in beauty and glory.
The princes grew daily more and more into
contempt, either out of want of desire, or abi-
lity, or both, to defend * caput imperii' from
incursions of infidels, oppressions oft usurpers,
and attempts of conspirators. Then fell the
grands of Italy to renounce all duty, contribu-
tions, or reliefs to the far distant parallel ;
from which as from a gulf they found no relax.
They drew back obedience from lieutenant*
governors, who gasping, almost at the very last
point, for breath, could light upon no true cor-
dial to comfort them ; posts could not ply so
fast between Rome and Constantinople, as oo
casion of state did urge ; and beside, which is
the most desperate effect of a declining fortune,
messengers were employed oftentimes with in-
tercession, but returned ever without remedy ;
disputations were lame, expectations idle, af-
fections mutinous. And though I find by the
best writers, that during this time of staggering,
so long as any spark of hope could live, either
of secure defence, or timely and sufficient sup-
plies, the bishops endeavoured their best to
preserve the life of loyalty in the breast of
fejir ; yet at the last the civil state declining,
the church fainting, and all hope languishing,
when both peers nnd bishops wasted like
images of wax < u petit feu/ felt the fury as
well of the domestical as the foreign sword, and
waxed weary of the fruitless comforts that were
sent out of the east ; they resolved jointly to
call in their next neighbours the Trench for
protection, who were able to defend them with
a stronger ann, a quicker dispatch, and a bet*
ter purse, than this sunk estate surrounded with
an ocean of incurable extremities. That there
wanted in the pope both then and ever since,
affection, invention, or expedition, to raise
Home once again, though in another element,
1 ex Alba? minis,* to draw their generation of
greatness out of the corruption of power, and
to make their best advantage of their errors
that were wont to gne them a commanding
check, they may believe that find no grounds
of judgment, of experience and truth to con-
ceive otherwise. For being put into posses-
sion, by this long desired and lately planted
emperor, of a satisfaction, both for profit and
for power, proportionable to the pains which
they had taken, ' Cum sudorc vultus et tremore
1 cordis,' about the new establishment, they
found other means to multiply their strength
and credit every day, by taking sure hold of
opportunity, which being lost with idleness, re*

■writ

301]

STATE TRIALS, 4 James I. \606.-4n the Gunpowder Plot.

turns no more to expectation. They began
then to establish their estates iu tlwt height of
security, from the frowns of predominant com- !
mauds, which many of their predecessors had
eagerly apprehended, ' Tauquam spado mu-
' lierem amplexans, et suspiruns,' as the pro-
phet speaks significantly iu another point, hut
yet failed of the final scope and reward of
their industry.

The strongest adamant that drew reverence
and love to the church of Rome, in the first
spring of religion, was the constancy of 'so
many godly bishops, as with the streams of
tneir blood watered the plants of their profes-
sion, desiring rather to die with honour, than
to deny with infamy . Besides, it is certain,
that during the short time of their sitting in
that seat, their chiefest end was to bind sub-
jects to superiors with so great obedience, and
superiors to subjects with so great conscience,
as those men were esteemed both most godly
and most happy, that were either inspired with
their pity, or grounded upon their principles. ,
St. Peter's galley might very well hold on a
constant and happy course for a-while after the
main stroke of oar* did cease, that was set out
at the first with tbe force and industry of so
many worthy mariners, as made for no other
port than heaven : which observation cannot
be thought strange, by men that understand
how hard, or almost impossible it is for one
prince that is humorous, succeeding many that
•ere godly and judicious, to work upon the.
sodden any dangerous effect, by countermotion
or opposition to the spheres of the former go-
vernment.

For to the raising of this height upon the
foundation of religion and integrity, some
brought Oone, some timber, some lime, some
sand, and some gave their own labour and di-
rection gratis; every one affording supplies
and helps according to the measure of their
strength, or the proportion of his ability. But
after that the bishops begun to find the strength
of their o« n estate) by removes of emperors,
and that instead of little ease, they got elbow-
room ; it was a means to make them stretch
their amis, and extend their forces into ele-
ments, » hich like * terra incognita,' were be-
fore unknown to them.

Some of the most artificially and refinedly
ambitions, finding by the Homan histories, as
it is probable, that C&sur wks never absolute
in power, ' Priusquam pot est a tern pontine mm

* cum Csesarea potentia conjunxisset,' lrild it
as sound a course for them, seeking the like in
another climate, * Cnesareum cum pontificia

* conjungere :' making no doubt but as * in ab-
' fttracto' they had been regarded with reve-
rvnee ; so • in concrete/ they might lie feared
with observation. The necessity which en-
forced all Italians after the departure of Char-
lemaine, to rely upon the pope's aid for com-
mon defence : tbe bond of conscience, which
moved the greater part of the world in those
days to resort to Rome, cither for satisfaction
to tools, or for preservation of unity : tlie con-

fidence of emperors and kings in compromit-
ting causes of unkindness or dissensions to such
a bishop, as professing like a father equal af-
fection and tenderness, was not suspected of
halting on either side : the strife and emulation
of mighty potentates to assure themselves of
tbe" love and friendship of that party, whom
the greater number regarded as a judge, and
few or none for many years suspected as an
opposite : the fear and peril into which some
emperors were drawn ot hazarding their own
fortunes, by disputing his prerogative : the con-
tribution of all states, qualities and degrees of
Christians, according to the custom and man-
ner of those times, to the maintenance of St.
Peter's successor : the secret interest which
the pope had in many kingdoms, by the merit
of his predecessors, that did first send learned
pastors and doctors to preach unto them re-
demption by Christ crucified: the exercise of
St. Peter's keys, by binding and loosing sins in
a kind of excellency, and supereminency above
other bishops in all parts of Christendom :< the
conceit which was holden of a bishop's con-
science, whom the canons will not suffer to be
' Solicitus de iis quae sunt mundi,' in compari-
son of any secular authority, whose only ob-
ject is the seal of longitude and latitude : the
danger of offending one, whom the greatest
part endeavoured with studious affections to
please : the subtle union of St. Peter's keys
with St. Paul's sword, to this end, that while
the one did open locks, the others, like that of
Nchemias, might cut off impedinunts : the
great revenue and demain, which was annexed
to' St. Peter's chair, first by the charter of
Charlemaine, and then by the great countess
Maude's legacy : the pope'* art in contriving
the manner ot the choice of emperoi- by the
coruesters of Get many, rather than by occasion
of making their returns to Rome, their teeth
might be set on edge with a fresh appetite, to
taste of the forbidden fruit which grows * in
( horti medio,' and thereby compassing the
tree of the knowledge ol good and evil, covered
with the leaves of i unit at ion for so many years,
to make their estates once again absolute : the
pope's caution in reserving to himself as it were
* in depoMto,' a special interest, only for pre-
tence, of crowning and confirming emperors at
Home, even after they had been el» cted and
crowned in Germany, though v+hen they sought
it, they seldom computed it : the pope's eye
to the retaining ot those rights and royalties in
the princes electors hands, which were mort-
gaged by precedent emperors, lest the bruised
leathers ol the engle, imped once with the%e
hard quills, might again be able to carry her up
to the spire of the Capitol : the long lasting,
and strong'y working faction in Italy of the
Guelphes and Gibellines, imperial and pontifi-
cal : the fnst league between the pope and the
French kings, ever labouring to maintain the
strength of the holy arms, against ull violent
and sturdy storms, as a plant of his own poli-
cy : the rule which hath been ever providently
observed and kept by the popes, in escbewir-

quarrel or contention with any powerful prince
in Europe, before be make himself sure of a
party opposite in the same degree, and likely
so far as the wit or aim of any mortal creature
is able to extend to make the match too hard
for him : the sure, hold which the pope hath of
the hearts and services of all the clergies, in as
many kingdoms as are Romanly catholique, by
exercising the interest either of investing or
confirming metropolitans, that have the highest
charge in the church, and draw the consciences
and devotions of lay souls after them, by direct
dependency: the pope's custom of sorting car-
dinals and officers for the church out of such
powerful and worthy families, as may make
both them and all their allies and friends to be
in their devotion and gratitude more fast to
them : the reservation of certain cases, wherein
the pope only will give himself commission of
oyer and terminer, thereby pressing the great-
est bell-weathers of the Hock, without an ex-
press relaxation, * ab ipso ore apostolico/ to
appear personally : the device of sending
princes to the Holy-Lund, so soon as ever they
began either to pick quarrels with the church
of Home, or might be made by their absence
of better use to it : the local interdictions of
priests by warrant from the pope, to celebrate
for the satisfaction of souls, which, so far as I
have read, was first set on broach among our
English bibhops hy Alexander the third, about
the year 1170, but not very luckily to those
that by observing them with a stricter kind of
obedience and awe, than the laws of the realm
would admit, were in great peril of their own
possessions, with loss of liberties.

Last of all, the garrisons and forts which
have been erected and maintained in defence
of St. Peter's patrimony, were high steps to
carry and convey the pope to that height of
cnubiug princes in their own element, which
many quarrel, some tolerate; but in very truth,
if the case once come to be their own, none
favour. So long, saith a grave and learned
writer, and a Roman Catholick, as the popes
attended those charges only that concerned the
soul, their chiefest care, desire, and study was
to be protected under the wings of the secular
estate: but the state of the emperors declining
faster than they rose, the popes began to neg-
lect both their arms and amity ; then fell they
to defend by writing and discourse, that it be-
longed rather to die church to give laws to the
empire, than to receive from the emperor;
pressing forward still without looking back, for
fear perhaps of being transformed with the
wife of Lot, * in statu am salis,' and abhorring
nothiiii: more than the very sound of a remitter
to the creeping state of their first simplicity,
the wrested censures of the church, either to
the passions of humour, or proportion of state :
they studied more industriously the ways of
making wars and heaping treasure, than of
steering Peter's ship, or instructing souls ; they
sought more slily than sincerely to make their
consistory strong by the support of tyrants and
usurpers, which having cast off Csssar's yoke

—Trial of Henry Garnet, a Conspirator [SOi

with contempt of disarmed ostentation, found
no means so proper as the countenance of the
church of Rome, for their establishment both
in dignity of security. For proof whereof, I
wish it may be tried by inquisition, whether
Robert Guiscard having filched Puglie from the"*
sacred empire, that is a fair feather from a fee-
ble bird, sought not after that to hold it of the
pope in fee ; and whether Roger king of Sicily
m the year 1130, possessed not himself of that
kingdom by such a trick of legerdemain, (tor all
was fish that came to Peter's set about that
time) and many his successors in that corrup-
tion both of conscience and conversation, be-
came now rather ' Piscatores knperiorum quam
( hominum ;' tho' the censure of St. Paul ex-
tended only ' ad in ten turn earn is," but not * pos-
' teritatis vel diadematis.'

After this some of them mounted to that
point of challenge, as they were not ashamed
to take upon them the prerogative of deposing
emperors. For Boniface the 8th after he had
presented himself, as the German* catloliques
report', to the eye of the world in his habit
merely secular, that is with a crown on hb
head, a sword girt by his side, and with profes-
sion that he was as well a Caesar as a pope, at
the next leap gave a greater* strain, claiming
precedency of Philip the French king, * Tarn in

* spiritualibus quam in temporalibus,' tho' some
of the most learned among the schoolmen op-
pose absolutely to this paradox : and might as
fitly wonder at this armed pope, as the prior of
Duresme did of his earled bishop, ' O quam

* manifest* jam exorbitat nostcrEpiscopus trans-
' forma tus avestigiissancti CuthoertiV Urban
withdrew not only the persons, but bona the
goods of the clergy from the trials of civil
courts. In case of treason the popes would of-
tentimes have exempted bishops from the bar,
tho' princes absolute would never yield to this
demand as a right by acknowledgment : how-
soever at the pope's request some of them have
been pleased to remit wrongs out of indulgence.
Let Platina give evidence concerning strange
devises vented, and plots undertaken, to bring
all the princes of the world to hold their crowns
( ad placitum/ and in effect at the will of
Peter's successor : Some being called iu ques-
tion for personal transgressions, some for idle
words, some for taking part with princes whom
popes hated, some for refusing to participate in
actions which the pope favoured ; some that
the pope might prefer his own friends to their
seats, some for standing stiffly against humours
out of suspicion, some to make the pope him-
self more strong, some to make his enemies
more weak. And sure I am by confession of
those that in religion were ever consonant to
the Roman canons, that after once the rule of
Gregory was riveted into the conscience of
Christians, which in those days were more fear-
ful to offend, that studious to learn, ' Senten-
( tiam judicis quamvis injustam ti men dam esse/
that the sentence of a judge is to be feared,
tho' unjust : howsoever all the laws of Europe
in tliis case by the grounds of nature grant a]>*

S05]

STATE TRIALS, 4 James I. 1600.— in the Gunpowder- lHot.

[306

peal?, what quarrel soever it pleased the pope
out ot* displeasure, just or unjust, to pretend,
himself being ever, fur the must parr, both
judge and party, that must be sat is lied to the
full, though it cost an emperor his crown.

And because ' Homo spirituals judicutur a
' neraine,' some of the canonists proceeded so
far in flattery after these encouragements, us to
exempt the pope's censure from examination,
though they carry with them heaps of souls to
hell : which though the w iser and the better
sort reject, as a doctrine fitter fur the school of
Mahomet than a scholar of -the church ; vet it
will be ever reckoned and reputed probably as
■veil « error pradicationis,' a* « conversationist
*> long as it shall pass the print without re-
proof; and to use die phrase of St. Ilieiom
upon like occasions, * priusquam Asterisco ju-
4 guletur.' Emmanuel the Greek emperor
craving earnestly of Alexander 3rd that both
empires of the East and West might be re-
united fur a greater strength and a more as-
sired support against the enemies of the faith,
his answer was, ' Se nolle id unire quod mnjores
'sui de iudustria disjuuxissent;' that he would
not uuite that which his predecessors had of set
purpose severed; though in vtry truth it may
oe proved a worse part in those that laid their
beads, and set their hands together, being sis
they were, but men * ad ill ml separandum
'.quod Deus conjuuxit,' to make a separation
in that which God had conjoined and fastened.
Though Alexander the pope had modestly for-
lorn to answer the request of Emmanuel in so
plain language as might move the world to say
to him as the maid did to St. Peter, in the pa-
lace of the high-priest, ' Vere tu ex illis, nam et
' loquela tua te rnauifestum fctcit •' yet by the
course which this pope's predecessors took in
planting ' Sedem Imperii/ the scat of the em-
pire, rather among the Germans, where by
larger distance he might less offend, than ' in
' Kooiana Metropolis than in Rome itself,
where he might eclipse the glory of the pope,
we might easily have apprehended both what was
the object, and where would be the end of that
policy. Hereunto I add an indenture made by
another of that Yank, with Cha. duke of Anjou
before bis establishment in the kingdom of Sicily,
that neither he during his own time, nor any
of his heirs and successors after him, should ac-
cept of any offer which the German princes
ought be drawn to make to him of the empire ;
much less that he i>r they should hunt after it :
his fear wa«, after an experiment, by the long
Lu»t!ing between the pope and Frederick, who
was by right both emperor and king of Sicily,
that the liciuity and neighbourhood of so threat
a state as that kingdom to Rome, in case it fell
into the hand of an evil neighbour, with the
U-a»t colour or advantage of a title, might >tir
upta-dy in the disposition of a prince that w< re
courageous, an earnest desire of a discontinue d
estate : because howsoever questions be over-
ruled among pi irate persons upon the ground
of prescription in point of law, yet when.' the
sword mutt flourish for the muster'a prize, * Pra>

tol. u.

* scriptio nulla, quantumvis diuturni temper is,

* occurrit Cxsari.' I need not at this present to
name that provident and discreet cardinal, who
in one o{ the late conclave-, put in a timely
caution to the rest of his fellows at the choice
of a pope, to ben are of too servile a regard ot
the partialities and passions of potent princes,
tli it « sede vacante ' recommended their chief-
tst favourites to St. Peter's chair, to no other
end than that they might again, by quintessence
of craft, reduce the niodtru majesty of the
church of Rome to that bare * jus patrouaius,''
wherein it stood during ti.e reigns of domineer-
ing emperois; and while they «ere able to free
themselves of that servile yoke, which by the
lo*s of many lives, by the waste of great trea-
sure, and the highest improvement of their pre-
decessors art, that set their own lives light iu
respect of the churches liberty, was cast off.
These are ihc steps by which, so far as I can
gather, either by observing the current of time,
the reports of histories, or the deep impressions
of experience*, the popes La\e ascended sometime
warily hoinetime confidently, but almost ever,
after the translation of the empire into the east,
powerfully to th s height of prerogative, which
have made them sufficiently strong, as it is said of
David in the Scripture, ' Cum leonibustunquani

' cum agnis ludere,' and to tread upon the asp
aud the basilisk. What Soto, Sylvester, Si-
mancha, Navarre, or Bellannine, either think
or publish iu their chymical distinctions of * di-

* recte* and * indirect^/ * proprie * and ' impro-
' prie,' * simpliciter ' and * secundum quid,' ' ab-
' solute ' and ' tuutuminodo in online ad spiri-
' tu ilia/ it much mutters not ; because in this
point they do merely transgress ' maudata Dei

* propter trarfitionein suam,' leaping like sheep
that are frighted with their own shadow, over
hedges one in the neck of another, without fore-
thin!, ing of the ditch on the others de, \onclung
no one tittle rightly to this purpose out ot the
vvorJ of God, regarding nothing that is ancient,
nor adding any ieason o{ importance that is
new; filling the schools with clamours, (he
church with errors, and all Christian estates with
tragedies. Yet iu disproof of their distinctions,
which are only circles and sharp angles of scho-
lastical conceits; beside the grounds of tober
judgment formerly set down, 1 will produce a
learned jury of those hiahops whom these
school men repute firmly and completely ca-
tholick, whom they emblason by descent of
pedigree the only true aud lawful heirs of
Christ, and whom thev reverence as his apos-
tles successor?, that did absolutely refute in the
most servile times to subscribe the pope's pri-
vative and peremptory censures against their
own sovereigns. Thev did observe their oat lis
of loyalty our of the -bond of conscience, with-
out regard oi canonical absolution ; and utter
shrunk upon threats or terrors that thundered
at Rome, from the positive laws and duties of
their own countries. They were not ignorant
that the high-priest iu the law was * circuudatus

* infirmitale,* and bound by the law to offer sa-
crifice as well for his owu private sins as for

x

307] STATE TRIALS, 4 James I. 1606.— Trial of Henry Garnet, a Conspirator [3055

the sins of the multitude. They had read thnt ; By another grave report touching the king-
fcr. Peter the first founder of* the church of dom of Sicily, I find in an epistle of the arcii-
Koine was called Sathnu, for tiiviii^ counsel that bishop's of Panormuru, how strange the bishops
was not sound to our .Saviour j alter the bestow- of that stale held an oath of obedience to the
ing of those titles of prerogative which many ! see of Koine, tendered by the pope's nuncio to
uige. '1 hey find turn pinched not behind his . one of them at the receiving of the pall, and
back, but reproved to his face by St. Paul, for i with this fctronir exception, « Non inveniri de
thiit lie did uot hold a strait course for the pro- • ' hujiisinodi jurnmento statuta in conciliis,' that
pagntioii of the frith. They learned of sin J in the councils no cation could be found, where-
apostle, so far only to follnv others, as they by to press the taking of such an oath by an
weie found to follow Christ. They heard that archbishop. Yet can I not deny, that Sicily did
many popes had revoked their fust censures j more depend upon the directions of tlie pope,
upon belter information : that Alexander 3 ■ bv the condition of some former contract be-

A' I ' I I 111 .'Ik. ' .. * • I *. I ' J _1 .. I l_ 1 J* 1 »

gave free liberty to tie archbishop of llaf enim
of abstinence from satisfaction to his own di-
rection*, so as withal lie pave the reason which

tween thnt kingdom and the church of Koine,
than many other provinces.

When Gregory 4 had a purpose in his head

moved him to abstain ; and that Adrian himself j peremptorily to proceed against Lewis le De-
enfurceth not, obedience ' mar.ente dubio,* so i bonaire, the French bishops in flat terms an-

loug as the point was in question, or traversed.
They were greatly moved with the precedents
of those religious and faithful auditor* at Thcs-
6alon'iCvi, that examined the passages of holy
Xvrit r Hedged by St. Paul, for the better trial of

swered, • Se nolle,' ike. that they would not
submit their judgments to that otter ; but the
ground thereof being both weak and unjust, he
should weil know, that * Si excommunicaturus
' veniret excommunicato di&cederet :* If he

the doctrine * an ita se hahtrent,' whether they came with a purpose to excommunicate, he
were vouched in a right and proper sense or no. should depart excommunicated. Add unto this

Last of all, because they fuund the privilege of
not erring in the pope to be limited by the
•t hool men themselves to matter of faith, not
of policy, and to be rather cathedra! than per-
sonal ; it vva-, a course familiar and usual among
many giave bishops of that age, to examine
papal censures as well by the standard of (foil's
void, as by the vi eights of the consistory ; and
so far only to give way to insurgent jurisdiction,
as it might not at toe .ssue of thcirtives unhap-
pily tall out to them ' in siugultuni cordis/ that
they Ind run counter. It thejr have either
cause or colour t ) challenge any one or more
<A this jury that is impar.nclled, * ex hoiuiiiibus

* lcgalibus/ for tiial of this point in question, as

Injudicial either to the enn-e, or to the church,
will undertake to set l.hn * rectum * .upright,

* in ipsa curia Romann,1 hy tl e warriut of their
own records, though thrt. he greater pain th.m
I need against any of the ichooi-u-* i., thnt
mould daily new distinction* out of ih»- otnui-
<sv nee of thi ir own conceited and s; If-pleusmg
wit-, witho.it the rij»ht stamp of antiquity.

I r.

out of a iieiich record, an instance of one John
Tanqtu ii 11, condemned by the divines bf Paris,
for labouring to defend that the pope in some
cases illicit depose the kimr. £'o strange wn.»
the riiictiiue of deposing prince?, and trauspos-
ing cr«#wii5. esteemed ever ia tho^e verv time*
which a c thought to carry the strongest tinc-
ture of affection, which many call servitude.
Hut if heresy and inlidchty were the proper
causes, as they are made the ordinary motives
of these brave attempt in;: and undertaking cen-
sures against crowned j i.-teutatt ^. tiere nti^ht
be some hettvr colour of < \eu»e, I li >t.^lt no
bctttr ground of jus-inc Unm. he -.n.jje neither
we in vi: any such custom, n»»r t.u « i.u ch o(
(rod: but we know th.-t irerogiuve is the
Manna ( h:irta which tl ev studv tir.it pursue
thi> point ; ami let toe p. nice, anam-t whom
th.e pope intends or pretends a quuriel, he as
Cainolic in all points of piofeSsiou as the pope
Minsclf, vet be cannot save Ins st.«ke in seeking
t-> save hi 7 •>'nd ; tor the challenge bcinu »»nce
j on font, until the supposition be acknoi, ledg d,

» l'j'l ..I -"**!■•

I have touched by di*c ,urse precedent, how ; ihe ce;i--uie qualified, or the pope satisfied, there
ar Philip the French kins, surnamed for hii - oh.il! be no other ground nor object of the pro-
personage, \a' Beau, was secured by the whole \ (e«s thin heresy". This moved mans bishops,
clergy of his realm, so far as cow coined the bond ' imtwi hstunriing their obedience to the high-
ol their allegiance and loyr.hv, * non obstante ' ! priest, vet to i \ amine th.e condition, aud whe-
the rash proceedings ;.ud p'-iemptory ceiiMires. ; ther tliedi ectioii were*4 ah initio secundum le-
of pope iioniface. To ;his I add the answer j 4 c ■. m 1); i,' as Alo-cs li'uitcd. The U»t barned -
whkh was made by liincmar, archbishop of > among the *.-i:«.o!-me:» make not obedience

li hemes, to pope Annan, forbidding him under
pain ol cuisine to vield either n-vei euce or ser-
\ie-e to the kiiaj, as to his lawful sovereign, that
persons of all qualities, us well cccleainslicd as
secular within the realm of France, .isreiui-led
upon the publication of il.»» pipe's eeiiMire, had
«'t down this conclusion v.i>h a kind of asto-
iiiahmeut, c uunquam ulii pi a'deevssorum suo-
* mm/ that no such injunction was ever sent to
miy of their predecessor before that time. A
Krone evidence in my conceit, as well of novelty
ft* of injury.

either an ai -tract in lb*.- clouds, « r an * indivi-
* duum \.:-juii},' or, as s Mi>e tlo the prerogative*
of piinc(s. a ' nemo act,' but they conceive it
as a duty rained by pnsoipt:oii * ad leg(S

4 KvaP.iiirlieas/

I'|i«»n t'ii> i:rouuvl of reason, crpiity and con-
science, (jerliartus archbishop of Klieines was
diawn to an absolute renunciation of any grant
that can he made to any mortal man in parti-
cular, of so larj.e capacity, * ut quicquid bbet
4 lice at ;* le&t that per»oii being forestalled, cor-

309]

STATE TRIALS, 4 James I. 1606.— in the Gunpoxdcr Plot.

[310

rupted, or seduced by fear, gain, or ignorance, I
might put all courses out ot' frame : with this |
further advice, that in limitation of power, the ,
holy gospels, the prophets and apostles, arid ,
the canons of the church indited by God's spi- j
rit, aod observed in all ages by those pastors '
whom the Holy Ghost appointed to direct and j
govern the Church of God, might be * Lex

* communis Ecclesia* Catholica?.' This rule
gives a round supersedeas to Mr. Garnet, and
his schoolmasters : and further we find I no,
the learned bishop of Chart res, so far a friend .
(how hardly soever the French king dealt with
him in respect of his absence from that conven-
tion, wherein the pope's proceedings against
die king were sharply censured by ail the'
tutes) as to deny the subjection or subordina-
tion of a king to any superior in his temporal
estate. And though the king should refuse out
of contumacy to give ear to the course I of the
podly bishops, (which was the case as he con-
ceited at that time, being infinitely addicted
to die pope) • Divino tamenjudicio relinquen-

1 dam e»se,' vet he must be left onlv to the
d.vine chastisement. And as Bracton saith,

* Suuicit ei ad ptenam quod Deum expectat

* ultorem.' How confidently and how often
the synods, parliaments, and schools of France
have run upon the pikes of papal censures, in
defence of the king's e->tate paramounte, sonie-
t.ice by their decrees provincial, sometime
hy their sanctions pragmatical, and some-
time by prohibitions, which cut the sinews of
all superlative commands with so sharp nn edge,
a» after that they were never able either to
march or move, I need not amplify, but only
ixwit with my finger to the coronation of the
king now regnant at his first entrance, by
l>hops, Iloinau Catholicks, (without either
awe of superior, or fear of censure, or conceit
of iiregularityj while he stood within the danger
of the curae ; and conclude this point with one
etaiuple very pregnant, as I imagine, of St.
Lewis, inserted by tire pope himseii'into the list
of holy confessors and saints in the Roman Ca-
lendar, notwithstanding his severe decree, that
no kind of levies or taxations should be made
in Fiauce by the pope's instruments, without
tile knowledge of his privy-council or himself;
nor then also, hot in cases of evident necessity.

But now lest Mr. Gurnet or his complices
should except against the state of France, as
over-tick le in the seat of satisfaction, when the
scope of the chinch' is gain; though we mu>t
arid »<jino greater weight of credit to thtse
courses, in respect the bishops were both or-
thudoxnl and canonical that assenfe 1 tu their
publication with the other peeis: I \\\',\ pmve
further, that in tenderness of can? to prt-erve
tlte i»fero«'ative of uiouarciiv within the bo'iuds
and limits of itself, tin: kings of England hate
htiilii r been inferior, nor least sensitive. May
it there f> -re please Mr. Garnet, and so many
other of iliat suit as hold the iuhject hound lo
filluw whatsoever is decreed at Koine upon
supposition of heresy, or suggested shew-* of
iofiddity against their sovereign, to take notice

of the titles, names, and- judgments of tl;e»e
persons which I shall present to their consi-
deration ; not fiom the presbyteries, which may
distaste their relish, but out of the list of 1 Eng-
lish authors, limned among Catholicks with
golden characters.

I will begin with the first of our kings * post
' conquestom,' and proceed to others as they
fall into the circle of exception in their courses,
and proceeding orderly. ' Quid paps cum

* imperii vel regni lihertate ?' What hath the
pope to do with the liberty of an empire or
kingdom (saith William the conqueror) to whom
it rather belongeth to take care of souls, and
of tha church'** seciuity ? Afterwards, in that
quick contention that fell out between Wil-
liam '2, and Anselme the archbishop about the
pope, (though 1 will never avow this king to
have been an holy confessor, nor all his expostu-
lations to have been regular demands) yet they
mu>t give me leave to note with what affection
and resolution, notwithstanding the pope's in-
tercoming to make himself a party in the quar-
rel, the bishops did adhere to their own sove-
reign. ' Notiun habeat sanctitas vestra,' your
' holiness,' s ait h Ileary 1, * must understand, that

* by God's help tiie dignities and liberties of tins
' kingdom shall receive no wipe of abatement
' during my reign : for though I had an humour
€ of embusing myself so much, as to shrink upon
' so sure a ground ; * tamen optimates mei, im6
€ ' totius Anglia1 populi it! nullo modo pateren-
6 * tur;* yet my peers, nay, all the commons of
' my realm would never sutTer it/ And after this,
the bishop of Exeter front to Rome, received a
very gracious and mild answer of the pope,
touching the kingdom's liberties. Henry 2
would admit no legate from thence, nor repair
of any of his subjects to .that see, before they
gave ^curiiy, • quod malum suuiti vel regno

* sun non 'piairercnt.'

The .Suffragan of Canterbury in very modest
and humble manner advised Thomas, his arch-''
bishop, rather to appease the king's wrath by
a submissive letter, which had ever been the
course of proceedings among the pastors primi-
tive, than by heaping coals to inflame his pas-
sions in so violent and desperate a kind, as
might perhaps cause a revolt from the Roman
hierarchy.

Nubrigen^is, another countryman of ours,
compnreth the archbishop's opposition at that
time to the king, to St. Peter's zeal, in the
, question between him and St. Paul. For though
: no man deuces, sutti he, that the archbishop in
! this p:trtici h»r was * 7clo fervidus ;' yet * an
; • phni et secundum juMitiam, Deusnovit,' whe-
j tlier sutVicic-uly, and according to the right,
God knoweth ; since it is written in the Pro-
verbs, that * prudon**- in tempore tacebit, quia

* tetnpus malum :' a wise man will hold his
peace in time, because the time i* evil, as he
thought that to be. The speech is modest, and

| yet declareth, that even in those times men

1 th-: were void of passion, though of one and

thes.'iMe profi\H«i«.]*. coming to scan the point

of conscience, judged indifferently, without

3U] STATE TRIALS, 4 James I. 1606.— Trial qf Henry Garnet, a Conspirator [312

either smart to the subject, or wrong to the
sovereign : which makes me the more to praise
the wisdom of th.it canon of the church, which
(with great reason) dissuades over-rough search-
ing of sores deeply festered, or over-quickly
proceeding in a time when censures are set*
light ; for experience hath taught that this were
but to cast pearls before Bwine, and to give
that which is 4 sanctum canibus.'

The whole reign of king John, being in effect
nothing but a tragedy acted in the eye, and to
the scorn of England over all the world, be-
tween the pope and him, our bishops skirmish-
ing sometimes (out of conscience) on the king's
side against the pope in this fraction of the po-
litick estate, and sometimes (out of faction) on
the pope's side against the king; yet the great-
est part of them at Windsor, as one of our au-
thors writes, * Non obstante senteutiu qua rex

* erat innodatus,' did communicate and religi-
ously receive with him.

Henry 3, suspecting some hard measure (as
it seems upon the smart and horror of exam-
ples past) expected a formal oaih of his bishops
that repaired to the council of Lions before
their setting forth, that they should assent to
nothing thefe debated, or to be decreed to his
or his crown's prejudice. At the same council
the king complained (not by the virtue of his
letters, but by the voice of his bishops) of a
wrongful claim pretended by the pope of an
iuposition, under the mask and colour of epis-
copal assent ; which in the behalf of all the
rest, was roundly contradicted by the metropo-
litan. Upon notice taken of this complaint,
the pope alluding to the spleen of Frederick
the emperor against his predecessor, said that
the king of England began to Frederize : but
it skills not much, said he; for, ' habct rex

* Anglia? sun in consilium, et ego ineum ;* as he
might very well, and yet bono gainer.

Edward 1, sent sir John l^xinjit/m to all the
bishops as they were assembled in the house of
convocation, with an express Caveat, that they
should in no ways yield to the pope's earned
instance for satisfaction in a demand : to which
prohibition, as my author writes, ' et ipsi paru-
' crunt,' they obeyed accordingly.

Edward '2, stood resolutely upon the main-
tenance of his gift of the treasurership of York
against the pope's Hreves, striving forcibly by
the colour of a former j»r.int, to prefer a ne-
phew of bis own ; and upon what ground ?
Because (saith the kin^) tlic peers of this king-
dom arc bound by their oath of homage, to
maintain the rights and liberties of this state,
whereof collation of dignities hath e\cr been
reputed a special branch, and therefore cannot

* salva conscieutin,' admit or hid arc the least t
blemish of an invested honour. For if it were
not lawful for the bishops of those a^res, as
appearcth by record, « Feodum Lai cum Ro-

« manac Erclesi* ol.ligare/ to tie a lay-lee upon
the Church of Home ; how much lesi is it rea-
sonable, lawful or convenient at this day, to
•"gage either the prince's right, or the subjects
loyally ?

To these I add a very earnest letter written
to the pope by the same prince, in such a style,
and with ink tempered witii so sharp ingredi-
ents, as ' ex unguibus It < mem :' for he doth
there protest, and that with some fervency, * se
* jus regni sui contra papain et oinne* defensu-
1 ruin :' that he would defend the riiiht and title
of his crown against all persotis whatsoever,
without distinction or diversity. I note by
this occasion the temperance of the pope at
that time, who neither replies with passion, nor
thunders in heat. For though it be tine that
England by position and site hath a great ad-
vantage of many other states and kingdoms of
Europe, that are neither so well fenced, nor so
compleatly compassed by s«a, proposing to
stand resolutely in defence of itself, though the
cause were good, and tlie prince martial ; yet
it appeareth, that the pope lor his part also
was more patient than some of his successors
(impeached by more ditiiculties and stiouger
impediments) have been since that time; or
else considering the claim which he pretended
to collations and investitnres in many other
estates, where he found princes more afraid,
he might at the least have made an offer (though
to small effect) of his virulent exceptions, which
being used without discretion, are indeed but
the vessels of an undiscreet pastor, to take tht
words of Zachary.

Neither law nor nature do allow to any
agent, ' potestatem operandi,' for the mainte-
nance of itself, 4 sine prapanitione niediorum/
without the preparation of means proportion-
able to that faculty which it affords: and there-
fore in this case we must infer, that either the
pope wanted passion or power, or instruments
to further, his ends (according to the scope of
his desire) powerfully. The abbot of lives-
tock was fined at ii\e hundred marks, for re-
ceiving a bull from Rome, wherein there were
but * nlifpia verba rc-i, et corona; sua1 pra»ju-
' dicialia.' Tic whole court of parliament,
wherein the party of the bishops and abbots
among the lay-peers, for the number was not
weak, gave their promise to king Richard 2,
with protestation to defend his regal rights and
immunities against all opposition, tuough it .
were made by the pope himself. And here- •
withal 1 note the re;»s«m in the record, suitable
to the resolution f which w;i* spoken of before)
lest the cinwn of England, which had been
ever live from the restraint of any superior
command, might on a sudden slip unawares
into the snare of s<i\itui!e; i;nd therefore the
main article in parliament in forced lor the de-
privation of Richard (J, wat, 'lh ;t he had by
admitting bu.is from Rome, inthrailed the
crown <,f England, which was free fiom the1
pope and nil other fi>rei;jii power.

The pope's iu'^rinre in the stale of English
affair^, was the m<>ti\e by which the wisdom of
the state was drawn during the rcicn of the
same prince and all t lint tiurtvdcd, to con-
dr inn, di<*abl<', and reject all bulls or breves of
direction in m Rome, that stood upon no war-
rant of ccrtiticate from some Lishop in the

313]

STATE TRIALS, >l James I. 1 606.— in the Gunpowder Plot.

[314

land to guide his aim ; and those bishops (as I of incominency ; sometime upon the stay of
we find by the reports of history and record) i the main stroke of tlr.u oar in their estate ;
were ever the worse esteemed, and the less re- ; sometime, about collation?, transpositions, in-
garded by their own prince and country, that i vestitures, without any inward gall or vexation
posted over to seek foreign aid, when they ' of conscience, for exasperating a pope's hu-
loight have found greater ease, by resorting to i mour in defence of their own prerogative. Let

their home bred oracles, and ' non ad transma-
4 riiia judicia ;' which they ought to do by the
council of Carthage.

They that desire to be more particularly in-
formed of the prosperous success of some bi-
shops, that were forward in execution of the
pope's orders without licence from the king,
may find a seizure made upon all the tempora-
lities of those bishops of Ely and Norwich, for
the publication of a bull against Hugh earl of
Chester: and further observe also, that the
bishop of Ely was condemned of felony by a
jury at the Kind's bench, notwithstanding his
bold challenge to be * unctus Domini et f rater
' pap*/ the pope's brother ; but a younger it
seems, by bearing his dignity with so great a
diiference. . The bishop of Carlisle in like
manner notwithstanding the privilege of unc-
tion) was condemned of High-Treason at the
bar, (though not in the pope's cause) in the
time of Henry 4th, and that worthily. For
though Solomon spared the life of Abiathar
out of a special favour, and a kind of reverence
to religion, * Quia portavit a re am Domini/ be-

tlie walls and battlements of the castle Saint
Angelo in Home, bear record of the piety, pa-
tience and humility of Charles the fifth, grand-
father to the king of Spain now regnant, when
tlie pope in passion overstrained both the duty
of a child, and the patience of so great a po-
potentate. 1 think Mr. Garnet will admit, that
these thousand years there was not a more
obedient daughter to the church of Home than
queen Mary, that could never rest in quiet, till
she had reduced the straying sheep of her do-
minions, as she conceived, to Saint Peter's
fold : and yet without regard or awe of the
pope's sharp censures agiiinst the king her hus-
band, she never gave over aiding him with
money, and assisting him with force, till he
was perfectly reconciled to the church, and
the strife determined. For as by the law of
God she found herself precisely bound in cleav-
ing to her husband, with whom by union she
became ' una caro,' to forsake all the world ;
so io the same law she tinds in point of fact
no straiter bond, nor stronger warrant of obedi-
ence to the sentence of the priest, than she

caose he had once carried the ark of God; yet ' observes the priest to ground himself upon the

by that he calls him ' virum mortis,' I may
lawfully conclude, what in justice he might
have done concerning life : but of his depriva-
tion the text itself gives clear evidence.

I add to this example the learned judgment
of Baptism Buiardus, a profound* civilian, that
a bishop offending in case of Treason, cannot
be exempted by his function from trial before
a judge merely secular : and for proof hereof
n«j man can witness better than Philip de Co-
mines, what slight answer was given by the
irench king his waster, to the pope's incessant
joit by the Xuncio, for the release of a cardinal
whose place and dignity was more eminent.

in Spain itself, which seems in this age to
be most pneise and tender of that point which
is termed the church's liberty, (though neither
circumscribed within any certain limits of ad-
mittance, nor defined till this day by any doctor

law of God ; that in, * quern ipse secundum
' legem docuerit ;' which rest is indeed that
* lapis Lydius' to which we ought all to resort
for the trial of all coins that are current among
Christians, whose image or stamp soever they
seem to hear, in case we find them oftentimes
embused by an allay, and apt to mine into the
foundation of equity and piety. For till I see
it clear either by doctrine or experience, that
God created all men Stoicls, or rather as void
of sense as storks, and instituted popes not
only • dispensatores mysterioium,' distributors
of his mysteries, but • tanquam angelo* lucis/
as angels of light, or more than angels of light,
because in those, as Job records, ' invenit praj-
' vitatem :' 1 must borrow leave in discerning
matters of this quality, to make use of the little
reason, and the great respect I have : leaving
those that are of another mind, to borrow such

'ft' either law) their own writers avow, that discretion by observation, which in this world
the bishop of Coimbra was constrained by the all persons at all times neither ever had, nor
»:ate to recall a sentence against the king, ' can ever have.

which the pone himself hath both encouraged
tad jti-titied. Don Pedro king of Arragou, in
^tuii of the pope's charge, under pam of cen-
tre rot to take upon him any longer the title
•*f lhv c.-iwu; which, oat of his own particu-
lar :i!.t'ction he hid settled before upon win-
dier priiici**s head, infilled himself * impcrato-
" tf » tr.ans *t re gnoruiu dmiinum ;* meaning
rather to advance than dismiss his style by the

p-'peM.ulder.
Many of their kings, as 1 could express at

Mtw leisure, linvc withstood peremptory ctn-

*ur.«s (»f the Church of Home, almost * ail de-

Hv the*e precedents and many more, which
time serves not to dilate or to enlarge, 1 hold it
very clear, that. l>oth princes and their bishops
have obeyed these papal et mures in matters
touching their prerogative and state, neither
longer nor oftener than debility or necessity
enioiced them to abate their bails, in a storm
of distress : Though decrees privative hare
hi -en often squared by laws positive ; and that
albeit inanv kinjis have made a shew to be
ruil 1 spectators of ti.eir neighbours harni«, yet
if the ca*e came once to touch cither their own
nhVrtion or the:r ri^ht, thev were content to

' li'juiuoi iiiiiina:' some time upon supposition : r-jd without the ordinary consonauts of the

315] STATE TRIALS, 4- James I. 1606.— TVw/ of Henry Garnet, a Conspirator [510

Ilomau alphabet. If then the weapons with
which our antecessors thught against ambition
and wrong, have been eaten into by the cankc rs
of superstitious fears, or overawed by wretch-
less sloth ; let us scour them with the powder
of experience, since these hot alarms begin to
sound, before we l>e surprized in over-great se-
curity ; and by resorting often to the rule of
(rod's direction, which is ' verus Judex et $>ui

* et obliqui,' we shall the better understand,
according to the quidity of superior commands,
either to lay down our lives, or submit our con-
formity. It was in my conceit a pain well
taken of late years to reduce the feast of our
Saviour's nativity as near to the right term or
period, as art and industry could devise, bv
taking up the loose minutes which by tract of
time and multiplication of degrees had drawn
OLt a wider distance by certain days, than i\as
consonant to the first calendar : and therefore
the like labour in another kind might worthily
reduce the challenge which popes have pretend-
ed in some cases above kings, to the same pro-
portion which it held under Gregory the first,
Leo, and nil other bishops of that see before
that date, by cutting off encroachments, which
by fractions of time have brought the church
into scandal, and the greatest part of princes
into jealousy : For all this while boldness un-
dertakes, wit contrives, assistance furthers,
conscience prepare*, scrupulosity consents,
strength prevails, and innjcsty suffers.

Now must 1 begin either by Mr. Garnet's
leave or against his leave, to rip up the false
stitches of the canon, « Nos sanctorum prsede-
' cessoruni,* confidently vouched at his first ap-
proach to the council-board, after justified be-
lore the lords in commission, and at this instant
stood upon, as our own ears can witness, in de-
fence of that supposed interest of deposing or
dispatching lawful kings, which is the binding
knot of the late* Gordian conspiracy. For
though wise men that either follow learned
conscience, or any certainty of direction or
rule, will tax Mr. Garnet's haste in pre-sup-
posing censures, which the pope did never yet
pronounce, in dealing worse with his own sove-
reign, than any other prince in his condition,
running without an errand, and rebelling with-
out a colour ; yet I will take this canon for the
time * tie bene esse' as it lies, • ut concusso

* fundainento arx ipsa enncidnt.' This only
principle, if I err not, huth more afflicted, dis-
credited, and disabled the pope's means and
instruments, in working his own ends, than all
the batteries that have been bent against the
Vatican for tho f pace of 500 year*. For what
prince under heaven can repute hi 4 >tate se-
cure, so long as every small distaste to the
pope's desire may ground a challenae, the
challenge may procure a citation, ih* citation
may produce a sentence, the sentence either
neglected or not sati^ird, infers contumacy,
and cuntumacv deprive* the suppose J delin-
quent of that honour which nature gives, con-
science avows, and consent fortiiie*? so as in
ttlis case either Gregory the ** venth in respect

of his ill hap, or no other person upon earth,
hath reason to acknowledge that rule of the
Holy Ghost, that ' in quo peccanius, in eodem
' plectimur.' 'lhe words of the canon strongly
bent against the crown imperial of Henry 4,
are not many, but yet heavy, and in English
thus: " We observing the statutes of our holy
predecessors, do absolve those that arc bound
by fidelity and oath to person* excommunicato
ed, from their oaths, and do forbid them to ob-
serve or k«ep their fealty toward them, * quo-
' usque ipsi ad satisfactioncm veniant,' till
they come to yield satisfaction."

Thus far the text of the canon ' expressi*
' verbis :' but since this is that * pillula a urea/
or rather ' dcaurata,' that pill not of gold but
guilt, w hich is preserved in the cabinet of the
church of Rome to purge princes of their choler
' in morbis acutis,' in hot fevers ; that is,
whensoever they begin to square with the pope
about any point of ecclesiastical prerogative:
and since Mr. Garnet for his own part likes the
composition so well, a* that he shrinks not. in
defence thereof to hazard the life anil stale of
his matchless sovereign, and his royal issue,
supposing them to be more sick, God be
thanked, than they find themselves ; /Tbeliov-
cth me out of affection and duty to my dear so-
vereign, though otherwise unworthy so much
as to gather Oierbas agrestes' with that child
of the prophet, ' in die critico,' upon this day
critical, to examine the first ' recipe" as I find
it formally subscribed by the pope's own hand,
that by more heedful looking into the quality
of particular ingredients, I may the better un-
derstand, by understanding judge, and out of
judgment resolve, how well it agrees with the
precepts ' melioris akvi,' both in proportion and
property.

The first ingredient, of observing statutes, I
confess to be of great effect in working the cure
of any grievance to the church or common-
wealth : but yet I lind it not of use among the
canonists, that exempt the pope from the regu-
lar observation <>f any law or statute, that out
of his own election he likes not to follow. But
to the matter, I would le irn who.^e statutes,
they are, or by whom enacted, or in what par-
liament, that Gregory 7, intending to depose
an emperor, established by the providence of
(rod, and tikin" God's own nthce into his
hand, by making himself in this point ' similem
1 Altissimo,' will observe thus tenderly. Surely
the prophet David was never in the number of
those piodceviors that promoted any such
decree, cridcmzjiug persons with all kinds of
presumption or di.icont!-iU, that shall induce a
subject to lift no hi*i hand * contra unctum
' Domir.i.' Our Saviour was none of ihem,
comm-uiding his disciples to give unto Ciesnr
whal is Ca'sir's, and rather to endure, than
offer violence to any man, much less to magis-
trates. St.-I\ r* r, that ought to be the lii>t in
rcspejt of the descent which the popes derive,
gave never any voice to any such decree : for
he enjoins obedience even to tyrants, whose
authority ua* absolute, baint Paul was none :

317]

STATE TRIALS, 4 James I. J GOO — in the Gunpowder Plot.

[313

for he commandeth prayers to be made by the
faithful, * pro regibus, et omnibus qui in subli-
4 initute coustituti sunt/ for kings, and all those
that are placed in sublimity, as at that instant
Nero the tyrant was ; and to what end ? that
under them the Christians might peaceably live.
Out of the rank of these predecessors, he
must exclude Pope Xistus, who touching the
rule of conscience, resolved ratber to obev God
than man : but touching the point of obedi-
ence, made no kind of resistance nor opposition
to tyranny. And Origen's opinion whs, That

* omnia crimina quae vindicari vult Deus, non

* per Antistites, et Principes Ecelesiarum, sed

* per mundi Judices voluit vindicari.' lie must
exclude Marccllinus, that offended no magis-
trate any further, tlian to make the church of
God know that Cssnr's decrees were no lawful
warrants, as some taught, for idolatry. lie must
delude Cornelius, who being charged with a
course of entertaining intelligence by letter
with St. Cyprian the: bishop of Carthage (at
that time) protested at his death, that the con-
Cents of those letters had no other end or drift,
than preservation of souls. So far were they
from derogation of obedience to authority, as
St. Gregory had never read this statute ; for
unless they will avow that ' semis' may be * supra
4 Dominum,' which Christ denies, they must
confess that Gregory ticknow lodging himself a
sen ant to Mauritius, he could neither overtop
luni, nor uign over him.

Neither is it proballe that Pope Annstnsins
to an emperor of that name would have written,
That the breast of his clemency was the shrine
«»f public happiness, and that his height earned
Hit place of that lieutenancy, which God com-
manded to rule and govern upon earth, if he
but held hi in a tenant of his crown to the see
Apo»tolick: and therefore with our venerable
Ci'Utitr^man I must conclude, that the master-
rule of our life, i> * Kcclesiai primi'ivsr actus

* imitari,' to imitate the examples of the church
primitive.

But if, notwithstanding this obedience, they
will enforce a man to reign who with his own
mouth doth pioless the contrary, which is to
sene ; let them call to mind that observation
of the wisest king that ever was, That one of
tbc chief instruments, * Per qua1 movetur terra/
by which the earth is shaken, is ' Servus cum

* reenaverit.* I know not what pope can pre-
tend a better title to the prerogative of making
Ja*s and statutes, than all or some of these
which had their course, and held that chair;
and vet we find not that all this while thecu«e
•as put (much less ruled) by such laws or sta-
tute*, as might either countenance the pope's
challenge, or excuse his intrusion. Hut why
should we thus puzzle or afflict our spirits in
turning over both the Testaments, in ransack-
ing the volumes of the Council*, or in sounding
the judgment of the learn- (1 Fath'rs a bom the
names of chose holy predecessors which aie
•wily recorded in their library ? In singling some
of the principals from the body of the herd,
*ad heanng there express their own conceits

| in their own words, it may perhaps be found
that their reputations in this point have been
further charged, than they can be blemished :
bare words arc not to be recorded without
demonstrations of right, or impressions of ac-
knowledgement. But in the course of my ow n
reading, which were sufficient to find out a
black swan if any were, though not so well
able to resolve a doubt as many are, I may
protest that I could never light upon a- prece-
dent of any pope before Gregory 7th that Wok
notice of any statute, much more enacted or
approved any for the maintenance of this de-
posing challenge; although in case there had
been such, I would hardly have preferred tin*
practice of any sinner that may swerve, before
the precepts of a Saviour that derives doctrine
from Deity.

The civil laws decree, That ' Si princeps
* causam inter partes audierit et sententiam
' dixcrit, est lex in omnibus similibus.' If a
prince have heard a cause among the parties
and pronounced sentence, in all like cases it
shall stand fur law ; much more in cases of
obedience and sufferance, which ' Hex Regum/
the King of all Kings hath both heard and deter-
mined. For if the schoolmen have resolved
truly and advisedly, that the pope cannot remit
sin* without sacramental ministration, nor
alter forms c*scntial, nor * ad placituin' release
vows ; because this absolute prerogative only
appertains to the key of liim which opens and
no man shuts; much less can any pope out of
the strength of pension, though warped and in-
volved within many folds of fair appearances,
deprive magistrates.

Whether the chair of Gregory 7th brake or
not, as one writer notes, at the pronouncing of
the sentence, because the pope or the sentence,
or both pope and sentence, were too heavy for
a chair that had -not been so far pressed or
surcharged for the space of a thousand years,
it is not my purpose at this present to dispute:
but I am very sure, that the policy, the dis-
cipline, and order of the church received a great
crack, when the force of the spirit was per-
verted and abused to the satisfaction of inor-
dinate desires, which mortification should rather
suppress, than ambition execute. For St. Ber-
nard writeth with great judgment to pope Eu-
genius, that * Kpiscopi et ministri Ecclesia*
cum tractant politico/ when bishops and pastors
of the church intermeddle with civil policy, £
mean so far as may put princes to their piungc,
they invade the limits, they disturb the func-
tions, and thrust their fickle into the harvest of
other men. If none of the predecessors of
I Gregory 7th, in which many were religious,
regarding more internal piety, than external
pomp, were privy to the reason or promulgation
j of such a law, but Gregory himself first ui.d< r-
j took the exercise ' duorum gladioruin/ of two
' swords upon a weak text in St. Luke, (which is
1 not taken in that sense bv any of those fathers
whom Thoma* Aquinas voucheth * in catena
' aurea.') Is it not then more than probable,
that this law was both enacted and proclaimed

310] STATE TRIALS, 4 James I. 1006..

in one day, without any former precedent or
record, either ' in albo Piatorum,' or ' in ru-
* brica Martyruin?*

Irithemius, a grave and learned writer, living
in the year lOOii, who was about the time
when hi the pope was put into tLis heat, affirms,
ri hat ibis question was then argued, hut not
determined: and where? not ' inter Episcopos,'
but * inter Schola*tio>s,' among the sclioolmen,
Whether it belonged to the spiritual jurisdic-
tion of the pope, to depute an emperor from
sovereign dignity.

The church of I/cge in Jike manner in the
same qunri el, and toon after the same time, avow
by letter to pope Pascal, that none of those
holy predecessors of which Gregory 7 speaks,
ever drew the sword against any emperor, be-
fore himself, commanding that grcnt lady the
countess Maud, that in her life depended wholly
upon his direction, and on her death-bed left a
rich legacy to the church, and that * in reinis-
4 sionern peccntoruui/ to pcr?ecuie tliis prime:
whereas Christ himself, whom Gregory should
imitate upon the same condition ( peccatoium
reraissiouis,' that i-, as we forgive the tres-
passes, enjuincth his disciples to forgive their
enemies, aud that not seven times only, which
agrees well with ti-e number of ' septinius Grv-
4 gorius/ but scveulv tin>es seven, using the
number of finite for luliuitr, which agrees hot-
ter with the duty ot * Grcgovius Episcopus.'

Otho Fristngcnsis, 'another author of those
time-, concurring formally with the two prece-
dent witnesses, affirm*, that ' legend o tt re!c-
' genuo,' in rending ami reading over again the
lives ami actions of cmperois, he could not hit
upon any one in that rank, that before llcnry
4th was expelled or uepo>ed by the papacy.
Wherefore the proof standing very clear and
pregnant, as 1 take it on this side, a* well * Quia
' probatur mapifestum,' as c Quia non probatur
' contrarium;' that this act of Gregory found
no right antecedent whereupon to ground a
reasonable consequent; I would gladly learn
for inv own instruction ofauv writer modern or
ancient, whether it were a just part in a judge
to condemn an emperor, ' cuumi inaudita,\or
u wite part in an emperor, to put hi?* crown ' in
' mauus Papalis,* into the pop-'s hands without
surer hold ; or a religious part in a pope, to
vouch buch records as are not any when* w;t
d iwn, if they ho not in t-ibles of ice, ' ld«jiie
* li-'.utibu* m ris,* the winds blowing r=oiitli^-: Iv.
But it may he I ha\e mistaken by error, or
overshot wnh bane, or omitted by prejudice
some Mich predecessor to Grigory, ;e> was au-
thor of some such act, without any kind of ex-
ception nwds: in the behalf of the prim c, cill.rr
of iuv.ili lily of the sentence, or of peril in tin.
preceileni. For this pope u>tii:hetli Zucharv :
a predeci-s-n" of his own, that depos. d ( hi>
dirick the king of r'runct ; though, as Gnlasios
reports to A nastasius this heavy sentence ft 11
not on him, so much tor nny crime committed
by himself, us because he was reputed ' inuiilis,'
unprofitable, or of no use to so great a mo-
narchy.

-Trial of Henry Garnet, a Conspirator [320

I would be loth that any man should hold me
so presumptuous or undi&creet, as to carry over
a question of this importance with a peremptory
strain, as if no author bad reported tin* sup-
pression of Childerick to ha\e been in very
deed the powerful act and execution of Znchary.
For I acknowledge that some such there are
(though earnestly transported with a desire to
raise and improve the leputation of Koine, by
an effect of so forcible authority.) My desire
is therefore only to be beard in a word or two,
and m> far to be credited, as the weight of rea-
sons may demonstrate, that only the peers of
France deprived Childerick by uniform consent,
howsoever they were providently careful after-
ward, that their proceeding upon tickle terms,
might pass more currently the voice and cen-
sure ot the world, by approbation of so grave an
oracle. But herein that I note, that. Gregory
gives evidence with bis own mouth in ' causa
' propria/ in a cause that concerns himself,
which Isaiah did not, appealing ' ad le^em et
4 testimonium / nor our Saviour excluding any
man's report, * Qui de seipso perhibet tCMiino-
' ilium;' nor St. Peter upon advantage ' Ser-
1 monis prophctici.' 1 he Civilians allow nut-
ibis preiogative to Cisar, nor the bishops of
Africa to Zozimus, nor .lohannes de Purisiis
to any pope, ' nisi scriptural fulciatur nuthori-
• tite/ unless he be supported by the warrant
of holy writ; nor the canons themselves to any
mortal man that may be subject to attentions.
Uut I will let thus advantage pass, though it may
seem strange, that whereas the figure of St.
Peter's p< rsuii was sufficient whilst he convers-
ed upon earth, to cure private men of their in-
firmities, it happens alter his translation into the
mount, that the shadow of his function should
prevail so far as to the suppression of mo-
narchies.

First therefore, in disproof of absolution from
oath, and deprivation of regal jurisdiction as-
cribed to thi> pope, I take hold of the gloss it-
self expounding this word ' deposuit/ for' de-
' pouentihiis councils'; t :* for hereby it appears
that this honest man being far from their
ambition and piesuniptiou, that hold it a great
honour tor a pope to d» pose a kinji, s» light
carefully and modestly to arquit that chair of
an imputed crime, (or error at the least) apply-
ing the text of hi*, own r. end to the testimony
of the bc-»t histories. For in a story found in
the library of the Abbey of Fnlda. among the
German* , it is plain, and by the report of a
French writer very ancient, that kin:: Pepin of
France was surrogated into the place of ChiJ-
dcr:ck by the whole nation of the Frnuks, * re-
' lationc tuntummodo missa ad nedai.i apostoh-
* cam,' leport being only made to the see
Apo-t-.lieV.

It i*hke-v.i*c evident bv the same nrthor, that
helnre any ambassador was scut to Koine from
France, ties silly cypher of a kin«», * non re sod
' nomine Tautiunmodo rrgnwhut/ was a king in
title, not in truth, and did only till the- place of
royalty upon the stage of scorn : and therefore
w ben the reals were all converted into nominal*.

S21]

STATE TRIALS, 4 James I. 1000 in the Gunpowder Plot.

let no man wonder at the voice of ratification,
but rather note the reproof of imbecility. The
whole sway and stroke of affairs in the state
rested at that time in the hand of one person
only, that was Muire du Palais, his sole act »as
authentic*!, his word was law : to him they re-
sorted for resolution ; to him ihey pave thanks
for satisfaction : and therefore if it be true that
' privatio praesupponit hahitum/ it must like-
wise be true that Childerick could not be de-
prive*! of a state whereof he was not possessed
at that instant, without new grounds of phijo-
s«phy. Another author writes *■ misisse baro-

* nis ad Zachariam pnpam,' that the barons of
France sent to pope Zachary as it were to con-
sult, whether ' ignavum pecus ' a drone that de-
vours, or a hee that labours, were more sufficient
Co command so great a state; and that Zachary,
mot unlike in this to Alexander the Great, be-
stowed his voice of approbation on him that
tlotild be reputed * digiiissimirs.' Gagwin
makes a question to be moved to pope Zachary
from die whole estate of France, by this kind
of comparison, Whether of these two persons,
'data electione,' free choice being given, were
more capable of government, he that spends
ks time at home * nihil agens ' idlely, or he that
bending his whole endeavours to affairs ' indus-

* una virtutequc publica negotia modernretuh'
Bat the pope's answer being, by the report of
this author, as was testified before, ' hocadducti
' responso proceres sibi regein delegerunr,' the
peers induced by the same, chose Pepin king.
oat as we know, that a question in point of
fart submits no claim of rieht, so the pope's
answer out of discretion, implies no bond or ob-
ligation of necessity. With this opinion con-
cars another writer of that state, proving by an
express deduction of the whole cause, that the
choice of Pepin proceeded originally from the
free consent of the French peers ; though for
prevention of all doubts and scruples, lest male-
contents might ascribe the process rather to
respective faction than to single faith, there was
great use of the pope's authority ' disponents

* in dubio procerum,' resolving the doubt which
caused the peers to stagger. This would have
been the end, whatsoever clouds were cast, or
the pope bad said : but ( abundans cautela non
1 nocct,' and the persons that either are not at
ill, or very little interested by their own parti-
cular in the point in question, are presumed by
the law to regard the matters with eyes of
greatest equity. This manner of proceeding is
not strange ; for Joab fearing at the height of
his fortunethe shot of envy, pressed David with
t powerful argument, to come in person, and
receive the honour of giving up of the fort of
Rabbath, tbat by his industry was brought to
the last pinch, lest his owo glory in the world
might swell too much by the fortunate addition
of so prosperous an accident. Wc count that
doctor happy, that resorts to the sick patient
*io declinatione morbi:' and it hath ever been
accounted an effect of skill, to wind in the con-
science of an upright judge for the countenance
•f a came humorously undertaken by the first

tol, it.

[322

author, that works under the reputation of un-
suspected truth. Wherefore though this * major

* du palais,' or supei intendant general over all
the French affairs, held in his bpst course to
mask religion with the veil of holiness ; though
Zachary were not unwilling in the end to take
hold of this offer for the grounding of a prece-
dent of challenge^ and advantage in like causes
at another time ; though the peers were willing
to leave ' Speciem ' to Zachary, reserving ' Vim
the strength and execution only to themselves,
let this be neither rule nor instrument of curb*
ing princes of better understanding, or embold-
ening popes of stronger minds. For as well
might the poor fly sitting on the cart .wheel
while it was in moving, wonder at the' great
cloud of dust which she raised in the beaten
way, as Gregory or Zachary draw counsel to
power, or make that act their own, which was
hammered in the forge of ambition, counte-
nanced with a colour of necessity, and executed
by a minister, that being weary of subordina-
tion, resolved by this trick, when the meant
were fitted and prepared to the plot, to make
himself absolute. The case of kings were piti-
ful, if ' ex factis singularibus, ' out of special
facts and practices, as the chapter of Liege
writeth gravely to pope Paschal, it were lawful
to draw leaden rules in their disgrace. For
some men undertake too much out of presump-
tion ; some yield too much out of cowardice ;
the greater part strain farther than they ought
of right ; and those weak rules lighting hy mis-
hap into the hand of power, not tempered with
conscience, are sometime forced by affection f
sometime bent with corruption, and for the
greatest part applied with subtilty. It seemeth
not, by the report of Paulus TEmilius, that this
manner of proceeding against princes by the
chief "pastors of the church, though without pas-
sion, and at the request of public states, was
usual or ordinary in those days; much less hu-
morous, violent, or voluntary decrees. For Za-
chary himself was at the first so moderate and
mannerly, ( ut non auderet tarn inagni momenti

* cogiiationem su^cipere,' so much us apprehend
a conceit or thought of so great a business.
And therefore though we should dispense with
Gregory 7, in vouching this predecessor in point,
yet. the predecessor himself by daintiness, doth
in a sort disclaim the charter which he should
pretend, without either enforcing or urging, in
so plain a sphere, any external traverse of ob-
liquity.

By this author it is manifest, with what ten-
derness, advice, and caution the pope opened a
vein that is apt to bleed above the measure
which the doctor's art prescribes : for finding
by equity, that ('hilderick was the last branch,
though sear and withered, of Clouis the first
Christian prince among the French, that he was
' sine liberie, sine ingenio,' without either issue
or disci ction, the strongest sinews both of suc-
cession and government, that he was so be- *
numbed with sloth and sensuality, that lie could
not feel the taking off his crown from his head,
that his suppression was not only sought by

323] STATE TRIALS, 4 James I. 1000.— Trial of Henry Garnet, a Contpirator [324

France, but applauded by the world : the pope
proceeded, having perhaps in his eye the bond
whereby he might engage the kindness of king
Pepin to the church of Koine, against the (ircek-
ish emperors, transported with jealousy. " This
makes K ran si us in his history of Saxe to won-
der ut the fastness between the French kings
and the popes, like hands that wash and help
one another by mutual support, in attaining
those high objects which both aimed at. Anto-
ninus joins with others in expressing the demand
comparative between a prince of judgment, and
a ( taict-neant/ an image, and a man ; between
a king indeed, and one ' qui solo nomine regio

* tegcrttur^ that was only masked with the
ntme and tit!* of a k ing ; adding, that the states
assembled upon the first return of the pope's
answfcr, suppressed Childerick, and raised his
competitor. Zuchary was so far from levelling
at the person or the crown of Childerick. ' in hy-
'pothesi/ if we give credit to out own country-
man Polychronicou, as he only meant ( in thesi'
to set down his judgment of .the difference
which a wite state ought to make between two
princes qualified, not only in a kiud of dispro-
portion, but of a direct opposition of gifts
and properties. Gotefridus Viterbiensis, strik-
ing rather at the root, than at the brunches of
this enterprize, affirms not * Francos Zachariai

* paruisse decrcto, sed acquievisse consilio :'
though the difference be as great as between an
absolute injunction and a politic advice. Sa-
bellieus, without so much as dreaming of a do-
native, avows a counsel by these words, * con-
4 sulto prins pontifice/ Nauclere yet more

. roundly if it be possible, that alter the peers had
first elected, the pope ratified r and with him
agrees Blond us in one tune, without either rest
of violence, or inducement of affection.

Out of Aventine I draw two reasons of con-
clusion against the jurisdiction of pope Zacharv.
The first, That being moved by the French
peers as before, he take* his ground of answer
from the revolt of t lie tun tubes, (though as
aptly as a man might avow the rising of Jack
Cade against his anointed so\ereigu.) For, the
sins of that ungodly race, the curses that were
pronounced against the rebels themselves, and
ttie censures- ol God's prophets, evidently prove,
rhat the fact was exorbitant.. The same rea-
son may be drawn from Zacluiry'.* own paradox
at the same return, defending, rhat since prince*
hold their crowns and toverniuents of the peo-
ple'* choice, in whom it resteth absolutely
• conatituere et destituerc/ to constitute and
desert ; though the doctrine he ns dangerous
as it is damnable, yet hereby it is evident (for
me) that the right of deposition (being, as the
pope himself avows, invented in the people)
was not in himself, and 1 y consequent, that
he was a counsellor, hut no commander; an
as>ist:uit, not a jud^e ; and that he did only
approve by admittance, nut enjoin by prero-
gative.

I know that Mr. Garnet and the rest will
a* unwillingly, admit the judgment of the cen-
turies in thu circumstance concerning Childe-

rick, (as other would barons of another side)
further than the warrant of their proof makes
way ; which moves me with a better will to let
tlum pass, and leave the judgment of this
point upon the credit of such authors as had no
reason to speak more than truth for advantages
of either part, because in those days not the
manner, but the matter ; not the circumstance,
but the substance ; not ' quo jure,' but ' ad
1 quetn finem,' came to be decided between the -
pope and the parliament.

But touching the pope's process against
Henry, the chnpter of the church of Liege doth
unfeiguedly protest, that in their exact perusal
of boih Testaments, they could mid no prece-
dent ( hujusmodi prajcepti apostoliei/ of any
such injunction or writ apostolick. A good
caution to make us tender in misdeeming of
their reports and testimonies, which (living in
the time of this distemper void of passion, and
qualified witU modesty, being learned both in
i he scriptt. res and civil laws, and regarding
more the peace and quiet of the church, than
the partialities or humours of either side)
affirms soundly out of knowledge, and confi-
dently upon their credit, that this Gregory 7,
was the tiist pope that deposed any prince
by the warrant of St. Peter's Keys; or, to use
their own phrase, that ever lifted up the priestly
launce against Caisar's sword, not dreaming of
any formal process sent out by pope Zachary
against king Childerick.

The very circle of a crown imperial (so far
as any state or fortune beneath the moon can
reach) implies a perpetuity of motion : for ac-
cording to that principle of the mathematicks,
as it begins from all paits alike, so * in seip>a
* desinit,' and ends absolutely in itself, without
any other point or scope objf ctual to move
unto. That the pope hath sometimes set the
crown imperial upon Caisar's head, since the
crowniug of king Pepin, (whom I take to be the
first) ought to be no reason ot'^js tossing crowns
from head to head like tenms-balis ; for tins
were the way by signs to destroy substances,
and to oppose formality to necessity, and occa-
sion to institution. The metropolian of every
kingdom, may do as much in form, * Non con-
' ferendo jus, sed implendo justitiam,' not con-
fening right, but doing what is just and right,
as H is aptly said by one of their own partners.
For though the pope reserve unto himself this
final iutertst of crowniug an elected emperor
at Home, and some flatterers would deiive a
kind of necessity for consummation and osta-
blishment from thenre ; yet many emperors of
an elder date, and Charles 5, in our time, have
bteu rca*iy with their swords in their hands to
prove (notwithstanding filial regard and rever-
ence to the mother-church) that the stroke of
power is absolute without relative formality. I
conclude tins question concerning Childerick,
with an argument inevitably either by inveiw '
Lion or sophistry, not disabling the witnesses.
For Soto, both a friar and a learned schoolman,,
holds, that * extra causas fidei ipsi pontine**
4 nunquum ausi sunt regis deponere :' (he-

325]

STATE TRIALS, 4 James I. 1606 — in the Gunpowder Plot.

[3'2*

popes themselves durst never depose any king
without the compos* of such matters as conceiii
faith. But Childerick whs deposed not for
any point of faith, but as pope Gelasius writes
to Anastasius, because he was of no use to the
commonwealth ; therefore it is not possible
that Childerick should be deposed l;y pope
Zachary. What hue-and-cry hath been made
in former times against uncivil claims, var-
nished with religious pretences, nothing proves
more plainly thau the strong opposition which
was made at the Holy-Land to Pelagius the
pope's legate, for seeking to draw in all parts to
the share of the church, at the taking the rich
city Dawiata, not unlike to the partition which
was made by the lion to other beasts that
hunted in hi* company : for it is true that at
the first they wondered, and after complained,
that the minister of him, whose office was to
itrengthcn by advice, should. discourage by too
Biuch greediness.

To, that example which is given by Gregory
7 of Alexander 1, another supposed predeces-
sor, absolving Christians from oaths, it were
idleness to shape any formal answer ; since it
Lath neither likelihood in common sense, nor
ground o( antiquity : For, in a thousand years
alter Alexander 1, this kind of releasing oaths
was not hatched, much less practised. It is
not probable that a discreet pope, void of hu-
mouis, as in that first spring of piety alt wore,
would have sought to range a faithless prince
to formal discipline, since Paul himself refuseth
to judge those that were no sheep of the fold,
but ' tori*,* that is without. And as unproba-
ble it is, that when the bishops of Home in-
tended ni'bt the winning of souls by obedience,
that should give so great cause of distaste to
tbo&e princes, that by the strength of their own
laws were most absolute in authority. It may
he thai Alexander 1 might comfort and secure
the conscience of some Christians that were
oter-scrupulousand precise in observing wick-
ed ami unlawful oaths, which are * ipso jure
' nulla,' though the pope should not dispense,
tod therefore broken with a better couscieuce
towards God, than kept. But how proves that
the breach of lawful oaths to princes that are
uglttly seated in their state, though perhaps
but ever good, which the church condemn*,
tod uo law justifies ? I hold it most absurd,
that the church of itouie for greatness, or the
church universal lor instruction, would not
have kept record of such a fact, if any such
had been : But it is not hard to prove ' quid-
* hbet ex quolibet,' where men may devise to
join their own positions, without care eirher to
answer for presumption^ or to account for ig-
norance, and then to grace them with protes-
tuiom of piety.

The caution which St. Peter is said to give
at the ordination of St. Clement, that no man
ibould be favoured or kindly entertained by
the true professors of religion, against whom
his successors should conceive offence, may be
admitted without prejudice to this point ; if we
•peak of such Just offence* as God's law pu-

nisheth. Thfre are cases wherein a man, that
doth but in a word salute and giveja God-speed
to a grievous sinner, is said ' Communicare
4 operibus ipsius maligui* :' Beit this is not
ever ; when St. Clement's successors censure
more out of passion, than out of reason.
Christian princes were not so much as thocght
upon when this course was set, and therefore
far out of pope Alexander's aim, that is, made
to wound a king standing so far off, with a
headless arrow. Reason satisfies thus tar, that
the pastors of the church, excluding us out of the
fold, can bereave as only of those things which
they give us at our coming in, that is, the king-
dom of heaven, more in value than ten millions
or' worlds, but no kingdom upon earth ; co-in-
heritance with saints, not with sinners ; eternal
blessing-*, not temporal benefits. It appears
the wardrobe is very betgarly, as one of Mr.
Garnet's fellows wrote over m such another
case, that affords nothing but nigs instead of
robes ; and the stock goes low, that would pay
counters for Portasnies.

These are all the predecessors which Gregory
7 piesents as it were in a mummery, to cast
dice for a prince's crown, as the soldiers did
for the seamless coat of Christ: For the v come,
and go out again, without either speaking any
word, or giving other notice, than by signsj
which is nothing in effect: Their end should
rather give evidence, than make appearance,
dispute, than dully. It is hard that the pope
should flourish in this shameless manner, about
the heads of anointed majesty with a rusty
sword, which since the time that St. Peter was
commanded to put it into the scabbard, was
never drawn, nor by the rule of Christ ought
to be.

King Edgar in an excellent oration, persuad-
ing the Saxon bishops that had the sword of
Peter, to join hands with him that had the
sword of Coustuntiiie for the cleansing of the
church, meant nothing less, than that it could
be in a bishop's power against, himself, to make
use of the mateml sword, wliiah was assigned
to his custody, lie tells Dunstane in the same
speech afterward, that it was he that coinntit-
ed this trust' to the bishop's care, that should
chastise offenders indeed : But how ? * Episro-
4 pali censura, et nuthoritate regiu,' by the
episcopal censure, and the king's authority.
Gregory 7 was not yet awake, who putting two
swords into one sheath, intends nothing more,
than to drive princes out of the field with their
own weapons.

lint howsoever some weak sovereigns, that
received their autlioritv from God for term of
life, have notwithstanding been content to hold
it of the jxope at will, this bars not others of a
quicker spirit, to examine evidence concerning
the point of right, before they sutler them&elves
to he concluded in the court of equity. Sub-
jects that are dutiful, and not apt to be trans-
ported from their faith with every blast of am-
bitious spleen, cleave fast to the foundation
winch is the band of obedience, not voidable
by strong intruders, nor partial interpreters. I

327] STATE TRIALS, 4 James I. 1606.— Trial of Henry Garnet, a Conspirator [328

confess, that a godly pastor ought chiefly to
provide, that Christ's humble sheep should he
folded ia due season, and safely guarded from
the persecution of wolves : but the sheep, for
their part also, ought to he as cautious, that a
wolf be not the bell-weather; which hath hap-
pened as plteu in many churches, as the bi-
shops out of their affection* and wrcakful pas-
sions have been authors of a fur greater effu-
sion of blood, than hereticks or infidels out of
their mulignity. Further, if we may give cre-
dit to that strange vision which Sozomen in his
history reports, there arose a question not only
among doctors upon earth, but even among
saints in heaven, what course was best to he
taken with Julian the renegade, notwithstand-
ing his apostacy, in respect of place : And yet
of both, I presume, that Mr. Garnet held him
a man of worse condition and affection towards
God and godly men tlian Henry 4, whom
.without the least gall of conscience, or supposi-
tion of doubt, the pope deprived thus unwor-
thily. *

Touching the quality of this afflicted and tor-
mented emperor, and the true state of his
cause, which was the ground and motive of the
pope's sharp cholcr, 1 med not at this time say
much, when much cannot be said for want of
time ; but will leave him with his opposite to
their final trial by grand jury at the dreadful
bar, where the books of all accounts and evi-
dences shall be laid open, and sentence shall be
rather grounded upon just desert, than partial
desire : And where no man shall be either
charged out of the envy of Cra^sus, or defend-
ed by the eloquence of Anthony. I am not
ignorant of drat which writers on both sides,
imperial and pontifical, Guelphes and Gibel-
lines, have sej down touching pope and empe-
ror, according to that humour which infection
and distraction of parts envenomed their pens.
I know that a man may err easily, bending too
much out of partiality or prejudice to the bias
of either side : And I want that just measure
of discretion and distinction which should level
grounds, that are made unequal and uneven
by distempered conceit?. But whether the
pope were vexed and disquieted with Henry's
challenge of investiture ot' bishops « per bncu-
' lum et unnulum,' and collation ot church-
preferments, as some think, though many kings,
and ours especially, have had, and ever chal-
lenged the like prerogative in their own estates,
or with the instigation of Sigisfrcd the archbi-
^iop of Menty, to withdraw subjects over-
hastily from their ordinary nsort to Home, as
others write, though this hath been theca«e of
some other princes in like sort that escaped
thunder-claps, or whether Henry's mean ac-
count of the pope's admonitions, or his prepa-
ration tn withstand force wit ii f.rce, put the
pope into choler, as other emperors have done
often times, both before and Miire, with more
easy penance for supposed pcrtinacy : Whe-
ther ail these or any one of these occasions gave
lire to the train, thouph I presume not to re-
solve! yet I may be bold to conceive in my

own opinion, that the medicine was over-sharp
and violent for the malady. True it is. that
the grudge of Gregory to this emperor began
tirst to fester in his heart a good space before,
in respect of the countenance and aid which
Henry gave to Gibert, bishop of Parma, chosen
pope by the cardinals on that side of the Alps,
with opposition unto Alexander, whom Gre-
gory, that was then but an arch-deacon, highly
favoured.

But supposing all were true that either
colourably or justly hath been given out in this
cause for truth, I desire to learn of some grave
ducor whether these poor motives were pro-
portionable to the pope's glowing indignation,
which shutting his gate against the emperor, (I
will nut say uncivilly, but uncharitably, that
came barefoot in a bitter frost to witness true
contrition of heart, for satisfaction to wrath)
J set up a competitor against him in Germany,
while he was labouring by this painful pil-
grimage to Home, to work a perfect reconcile-
ment with the pope; and to write to the party
opposite, lest they might shrink upon those
shews of friendship, likely" to ensue between
the emperor and him, that he would send him
back, as he would use the matter, ' culpabili-
orem' more culpable, and by consequence more
subject to their violent advantages.

Nay, which is worst of all, after peace and
friendship, and absolute forgiveness of offences
sworn, and the sacrament received by the em-
peror, (for the better assurance of the league
intended at the pope's own hand) to arm his
son against him in the held, under the pretence
and mask of zeal, ' ut uomen Augusti abha?resi
' vindicafet/ that he might redeem the title of
Augustus from the blot of heresy: for to this
center all the lines of the pope's disguised ex-
ceptions may be drawn, and in this gulf they
vanish: as if no man could embrace a sound
belief, unless he had a servile heart: as if all
that oppose against intruders were hereticks ;
as if it were not lawful for the emperor to set
up a traverse in the church, so long as he re-
solved to exclude the pope from competition
to the chair of state: or as if the supposition
of heresy at large without conviction of any
point heretical, against the canons of the church
l>y proof, were a c«;mmon jail, whereiu the
pope's custom is to lodge all christian princes,
that by contradiction to partial demands upon
just grounds are condemned as his cast-awavs.
L:<st of all I woul.l know where the pope
learned to for»ive ' culpam,' but not l pornum,'
to a prince, that in the end was more willing
to colic it union, than to rankle hate; or where .
he I< arucd to distinguish between restitution to
grace and majesty, by suspending that part of
his favour that mi^ht put him into possession
of his own lawful interest. I find by Sisjibert
the abbot of Gemelack, that in his time it was
hoiden ' hsercsis nouduin in mundum emersa,*
tiiat the chaplains of that powerful God, that
oftentimes makes hypocrites to reign ' propter
' pecata populi,' should east the rod into the fire,
before that faults were chastised according to

329]

STATE TRIALS, 4 James I. ] 606.— in the Gunpowder Plot.

[330

deserts; or by their absolute commands, dis-
place those instruments, that, as powerful ex-
ecutioners of heavenly judgment, are to dis-
charge the duty which is laid upon them.

But howsoever Gregory minht in those dog
days scorch an emperor hy fie combustion of
beams that ' ex diametro' were opposite hy the
strength of a party raised by advantage of the
time ; ytt by succeeding tokens I observe, that
God was just, though popes were humorous.
For one of those arch-traitors whom the pope
erected out of passion, and supported out of
pride,, was slain afterward at the winning of a
town; another in the field, though (as one
writes) not impenitent for his treachery. The
pope himself, worn us it seems with vexation
and strife, lived not many years ; and having
left his point in this prince, was never able to
my great purpose to sting afterwards. The
mutinous and rebellious bishops, that had op-
pressed and resisted by the pope's direction,
never held up their heads after the fatal blow
which they received at the synods of Mentz
and Wmrmes, but were either slain by their
own sheep, or perished in the mountains by a
most hard destiny.

W a Irani bishop of Megburghe writing to a
German count, gives a very just cause of this
concurrence in malignity of sharp accidents ;
For since by resisting power (saith the bishop)
they resisted God, it was not possible for the
ftoccess to be better. Platina reports, that
in the very interim, while the pope was as yet
advising and consulting about the best course
to he taken with this discontented prince, some
wi«er than the rest were of the mind, ' Regem
* non ita cito anathematisnndum,' that a prince
was not to be accursed in such post-haste.
Hat oppositions were idle, the pope's heart
being wholly set upon revenge, and support-
ing this whole process with the commission
»iiieh Christ gave to St. Peter to feed his
feheep, that is, to teach and instruct the flock :
lor 1 make as great difference between instruc-
tion and destruction, as between feeding and
strangling, though by the very fonn of the sen-
tence, (as it is set down against this emperor)
it be manifest that Gregory commundcth St.
Peter and St. Paul, as if they were his bailiffs-
errant, to execute the writs of his poutitical and
prirati? e nuthority.

Touching the charge of absolving subjects
from their oath*, which is the ch iciest instru-
ment by which the canon * Nos Sanctorum'
works in seeking to subvert the seats of kings,
upon such grounds of quarrel nnd exceptions as
nm be made, I will chiefly note, That Gregory
doth in this case assume more to his dignity by
deputation, than God himself doth to his deity
by prerogative. For admitting oaths to be law-
ful, voluntary and without derogation from*
r^ht, (as those are which we make to princes
a* becomes) he concludes - all their ministers,
that dare presume to violate faith engaged upon
those due respects, within the compa»s of per-
jnry. The promise which God makes to man
a 'wearing by himseLf, lit will not, though it

tend to the quicker and the juster punish-
ment of sin, release unto himself: and yet
shall we think that the promise which was
made by a sinner to him, can be released
without him? ' Frater non reVhmot, rerihnet
' homo? non dabit Deo placationein 6uain et
' pretium redemptions annus sua?,' as we may
conclude in this case with the prophet. Though
God were so justly moved with displeasure
against map, as he seemed to repent his own
free-grace in planting an iugrattful stock in a
barren soil : ' et prscavens in futurum, et tactus

* dolore cordis intrinsecus' which inward wound
might very far provoke the wrath of God against
his creature; yet in respect of his word en-
gaged, from the beginning of the world, That
the blessed seed of a woman, whom all genera-
tions call blessed, should bruise the serpent's
head ; which my»tery was to be wrought with
effect ' plenitudine temporis;9 he would not
dispense with his onn promise, tut suffered
the purpose of free-grace to he carried upon
the wheels of eternal providence, to the pre-
fixed period of his own benignity. The griev-
ous sins of the prophet David and of his off-
spring, provoked God's wrath ju>tly to wipe
both the blossoms and the root, out of all grace
and mercy ; and yet in respect of an oath taken
long before, that an heir of his line should never
want, to keep his throne, it pleased him for
the making good of his own promise, to remit
tys displeasures.

The greatest hope of encouragement that
God's people could draw from the prophet ,
Samuel, when they implored his assistance in
I distress, was this, That God having by a solemn
oath selected and in a sort impropriated that
nation as a choice people to himself, would
neither exclude them out of protection, nor
leave them to fury.

The rule of God's own direction is very strict,
that if any man hath made a tow to God, ' et

* se juramento cunstriuxcrit/ and bound himself
by oath to keep the same, it shall no longer be
in his own election to make it void, but he
shall perform precisely what was deliberately
promised. It is not known to any man of under-
standing, what the law sets down concerning
the redemption of vows upon just cau:>e in the
presence of the priest, and atsucti a rate a* the
votary, according to the measure and propor-
tion of his means, is able (without undoing) to

I afford. Again, all men understand that unlaw-
' ful vows and oaths (as that of Jeph'ha, Herod,
and many other null protesters of like sort)
force not the point of conscience in the least
degree : but when we take an oath advisedly
and freely, according ro the measures and con-
ditions limited and expressed in the law of
God, that is, according to judgment, righteous-
ness, and truth ; yon, though it be by duty to a
wicked prince, Ezrkiel will tench us by the
warrant of the holy spiiit, that God himself
will nail upon the head of the perjuror, the
oath which he hath set light, and the covenant
which he bath perfidiously broken.
By the reason which pope Gregory make.

331] STATE TRIALS, Uames I. 1606.— Trial of Henry Garnet, a Conspirator [332

his warrant of releasing the subjects oaths to
Henry the 4th, the prophet Huftanias one of
the high priests tor the time, might as well have
dispensed with the oaths of God's people to
Ncbuchodonosor an infidel, and an idolater.
But God himself condemnetli all priests and
prophets that by false hopes went about to ease
the people's burden before the time prefixed
for their penance by his imposition : and the
days of lianauias the false prophet were cut off
for his flattery. Wherefore as the boldness
and presumption is very great in any mortal
man to dive so deeply into the secret myste-
ries of Providence, as to judge at what time, iu
what person, upon what condition, or by what
warrant one sinner may release another of his
oath : so likewise the charter w hich the school-
men iu the pope's behalf pretend upon this
claim, must undoubtedly be very weak, when-
soever they shall undertake without assurance
of God's certainly revealed will, to discharge
the conscience of man engaged by election,
and obliged with solemnity. The school-men
shall never be able to make clear proof by any
ground out of either testament, by any canon
of the councils primitive, nor any of the fathers
living in a purer air than ours, (howsoever they
devise distinction upon distinction, rather to
entangle than to settle faith) that this doctrine -
of accursing princes upon light occasions, of
releasing oaths, of deposing magistrates, is con-
sonant to those principles of obedience and pa-
tience which our Saviour left to his apostles,
and they like heirlomcs to their successors. If
it be clear by St. Matthew, that our peace
shall return unto ourselves, when they to whom
we wish the peace, declare themselves unwor-
thy of our wish ; undoubtedly as true it is, that
our curses shall recoil upon our own heads,
(and that worthily) when they that are within
the bosom of the church, (which is the house
of God) declare themselves unworthy of the
curses which without desert we cast upon them.
For as it is a question well moved in this case
of Balaam, * qunmodo maledicat ci, cui non
' maledixit Dominus ?* So it is as discreetly
noted by St. Gregory, that * ligandi et solvendi
' potentate se privat. qui earn injuste rxrrcet :'
he deprives lum?cii of the power of binding
and loosing sins, that seeks to practice without
grounds that may he justified. Origen writes
excellently, that where the motives of sharp
sentences are unjust, and not able to endure
the touch of due regard, he that is cast
out, goes not, * sed qui unmet emus, ex-
cltiditur.' '

It was not in the power of the priest by the
law of Moses, to make him a leper that was
clean, but to judge (by search) whether he
were clean or not: and therefore St. Augustine
may more confidently deliver his own conclu-
sion, That rash judgment hurts not the person
« de qua temere juclicatur, sed ei qui tern ere
4 judical/ The reason may be druwn out of
another of the same suit, * quia dum volunius
* per iram alien* coercere, graviora commit-
'jjiiius:' in seeking to coirect the faults of

other men in passion, ourselves commit faults
tli at are greater, for want of charity.

Therefore I conclude, and that ( magistra-
' liter/ as the school-men speak, out of the
very canons themselves, ' manere Peiri privi-
' legium, ubicunque fertur ex ip^ius ajquitaie
'judicium ;' that Peter's privilege doth conti-
nue so 'long as the sentence is pronounced out
of Peter's equity and not otherwise. To that
caution put in by fet. Gregory out of scrupulo-
sity of conscience, ' Vel iniquamjudicisseutcn-
( tiam timendam,' that the sentence of a lawful
judge ought to be feared, (yea, though it be
unjust) we may give a reasonable answer, by
restraining that fear to such a kind of modesty
and tenderness as being eier apt to suspect
frailty in itself, shall oftend. lets by searching
sin with too deep, than too short an instrument;
and by supposing out of the sense of an humble
spirit, that nil men are more apt to flatter them-
selves in the ways of their own errors, than a
learned, discreet and religious judge to censure
without a just occasion.

A wise man that desires to preserve his
health, receiving pills from the hand of his phy-
sician, who undcTStundeth the suite of his body
out of knowledge and experience, much better
than himself, presumeth at the lirst impression,
that some humour may offend cither in quan-
tity or quality which deserveth correction,
though he know it not : but after calling to
mind upon advised observation, that his appe-
tite is ordinary, his temper perfect, his diges-
tion strong, and all those other circumstances,
which the learned in that faculty regard, suit-
able to a perfect constitution and state of
health, he begins to apprehend (by opposing the
sense of his own parts to his doctor's aim) that
men, though grave and learned otherwise,
may err either by mistaking principles, or giv-
ing too light ear to false informations, which
are rightly termed the spectacles of error. Fur
God doth only search the hearts and reins,
and therefore only knows truly with what igno-
rance or skill the plaister is applied to the part
cither festered indeed, or for want of a sound
judgment (i u those that take upon them as his
vicegerents to discern) so deemed of. (njd
hath pronounced in his word, that * spirit us

* homiiiis tnntununodo,' the spirit of man only
knows those things which are in man, uud the
spirit of God alone those things which belong
to God : and therefore * de occultis vel de

* male intellect is,' that spirit which only breathes
in the nostiils of mortal men, can neither de-
cern nor judge infallibly. Jiut if any man
object, that popes proceeding against princes,
arm themselves with sufficiency of proof, be-
fore they come to resolve to the defendant's
prejudice : I answer, that presumptions, too far
carried in the scope of passion, have caused
many popes to err against emperors in the act
of process. And lest we stray too far iu seek-
ing an example, even this Gregory ?, coin
demned Henry, ' Causa inaudita,' before U»e
cause was heard, as some writers of that age
testify. That rule of equity which warrants

S$f\

STATE TRIALS, 4 James I. 1606.— in the Gunpowder Plot.

[354.

orderly appeals from judges ill informed, to
judges grounding sentence upon proof above
exception, in matters of less weight than this,
hath been current in all policies and times :
for * Lex justo non est posit a/ And howso-
ever for the maintainance of order, outward
forms are to. be kept with moderation and re-
verence, yet to the soul of man, the conscience
standeih for a thousand witnesses, and is in
very deed the truest touch. And therefore for
my own part I shall never tax that patient,
that privily, and without disgrace to the doc-
tor, throws the pills out of the window which
are sent, if from certain and undoubted know-
ledge of his own inward state, he be sure, that
for the reparation of health, or for the cure of
a supposed sickness, his body hath no need .of
them.

1 stand the longer upon satisfaction to this
place of Gregory, because it is opposed in de-
fence of all erring judges, to the snaring (or at
the least to the frighting) of those souls that
are oftentimes most timorous, because they are
most innocent. But in the mean time, note
that this godly father released no subject of
his oath in point of duty ; he accursed no
prince in the chair of royalty ; he confounded
no state by extent of primacy ; but knew very
well bow easily a judge may err by strong ima-
gination, with Gad in the book or Judges, mis-
taking ' capita hominum pro uinbns montium/
the heads of men for the shadows of hills ;
1 et hoc errore decipi,' and by this error be de-
luded and dazzled.

The chapter of Liege utterly rejecting this
release oi oaths and fealty, might be moved
with many grounds. First, because the breach
of a lawful oath (as hath been justified before)
falls into the compass of a mortal sin. A^ain,
because many of their predecessors were de-
parted to God in peace of conscience, that till
ibe last point of lite observed their oath; whose
example they had small reason to under-value.
Furthermore, they alledged, and not without
jost cause, that-supposing this emperor as im-
pious as the sentence did import, yet it became
them no more than Zedekiah (till the fire of
correction had eaten out the rust of sin) .to
withdraw their necks presumptuously from the
yoke of Nebuchadnezzar. I conclude this point
with a fit example of the wisdom of our kin^s
ia former times, drawn out of the cabinet of
awst ancient records : for nothing could jiive
them satisfaction touching the loyalty and
fidelity of their own prelates, till they had in-
vrteuinto the oath of homage these words,
4 Id vc rbo vcritatis,' (which binds conscience)
in place of former words of an elder date,
' Saho ordiiie,' which left church-men in effect
to their own liberty. For it is free, saith an
old Roman Catbolick, Johanes de Parisiis,
for any lawful prince to repel .the violence of
the spiritual sword by the best means he can,
finding that it tendeth to the disturbance of (he
crril state, ' cuius cura iucumbit regi,' the
care whereof befdngeth to the king : or else he
dmihl bfftr the award idlely.

. But now to make the best use that the fit-
ness of this occasion offers upon the worst mo-
tive that ever was heard of among men before
this accident ; and to make all men see thai
have either eyes of understanding in their heads,
or the .fear of God's judgments in their hearts,
how rashly our late undertakers, who steer Pe-
ter's ship in our narrow seas, Mr. Garnet being
one of the chief pilots, have run her upon the
rock of rebellion, neither looking to the card of
conscience, nor regarding the compass of faith :
I desire that certain observations may be kept
in memory, as certain monuments of God's
powerful works were in Israel, * tanquam signa
* pradicantia ;' that is, forewarning signs and
cautions for abstinence to giddy mulecontents
in future times; which otherwise, upon the mo-
tives of like mischief, may be metamorphosed
into figures of like inhumanity ; for an angel
said to Tobit, That to publish and reveal the
works of God, is laudable.

I know that strange things happen oftentimes
by accident, so far as the weakness of our sense
is able to apprehend, though truth assures us,
that without the providence of God no sparrow
lights upon the ground : and Pericles justly
maketb fortune to be nothing else but ' verse
' causae ignorationem,' our ignorance of the
proper and true causes of all things. But yet
where a wild boar by rooting in the ground doth
not accidentally express one A, but adds to that
so many letters in due course as presents this
whole word Agamemnon to the reader's eye ;
where a man doth not cast three quaters upon
three dice, but 3,000 quaters upon 3,000 ; and
where order, which proceeds from reason and
election, is kept in coherent forms, chance hath
no stroke of predominance by the right grounds
of philosophy. Wherefore no man can tell
whether some of those confederates alive, be-
cause I dare not say that there are none, look-
ing back as it were from the shore upon the
rocks and quicksands which they escaped in this
storm, (calling to account the had success, not
of one or two, but of all their many counsels,
labours and events in this luckless action, keep-
ing in mind that observation among the Galen-
ists, that where all simples work against their
kind or property, the cure is desperate) finding
our Jerusalem to be built as a city, * cujus par-

* ticipatio in idipsum ;' marking that our gra-
cious, our just, and best deserving king (sup-
ported by God's angels, which are * Spintus ad-
4 ministratorii in miniaterium missi propter eos

* qui capiuiit haereditatem salutis ') doth dwell

* in adjutorio altissimi ;' and that it is in vain
to work upon a monarchy, ' cujus cor est unum

* et anima una,' whose heart and soul in the
point of obedience is one and the same ; will
return to the resolution wherein they stand in-
gaged by the laws of God, and of their own na-
tive soil ; give ear to the voice of their own
shepherd, and acknowledge humbly with Jacob,
that * Domitius crat in loco isto, et ipsi nescie-
' bant;' God with the mighty protection of his
powerful hand was in the place, although they
knew it net

J35] STATE TRIALS, 4 James I. 1606.— Trial qf Hairy Garnet, a Cai^irator [SSfl

First therefore I observe, tliat when you, mas-
ter Garnet, and your practising disciples, laid a
pack together for a project of invasion against
the late queen, and in her later days, with hope
to put out (i flush of princes with a prime of
jacks, which wi|l never stand in this state, I
trust, with our right game of ' primus ero :' God
took away this lady in her ripe and mellow
years, when her head wus white with the blos-
soms of the almond tree, as he did Josias, * f\'e
'* videret mala quae eventura erant,' lest she
should see the mischief which was likely to en-
sue, and had followed undoubtedly, as men were
restrained from the certain knowledge of the
only rightful successor, if the * bonus genius' of
our dear sovereign had not, through the prepa-
ration of ordinary means and instruments, by
supernal grace established this state iu the full ■
fruition of their long lasting security.

The bulls which by the practice of you and
your Catiline, the lively image of your heart,
should, by l'>ud lowing, have called all his calves
together with a preparation to bund against our
sovereign, at the frrst break of day, and to have
cropped those sweet olive-buds that environ
the regiil seat, did more good than hurt, as it
happened, by calling in a third bull, which was
Bull the hangman, to make a speedy riddance
and dispatch of this forlorn fellowship.

In the time of Henry 6, Humphry duke of
Gloucester, finding certain bulls that cameirom
Home to be very prejudicial to the king's estate,
without asking leave of any man, cast them
roundly into a bonfire. The late queen of happy
memory entertaining the bull which Felton set
upon the bishop of London's gate, with the same
or greater distaste, because the drift was to cm-
base her title, and transport her crown, gave it
as quick dispatch by like destiny : and master
Garnet thought his bulls as worthy to be sacri-
ficed in a quick fire as any of the rest, for their
idleness and wcakuess in effecting what was
wished, and expected by the friends that invited
them. These bulls master Garnet were * Cor-
* nupetai ;' you were warned by the state to
shut them up, in rc-spect of the' mischief that
they meant; you regarded not the prohibitions
of law, but gave them scope of grazing in cer-
tain grounds, where the marks of their impres-
sions are visible. If this be denied, Catesby
your apt scholar and choice friend shall charge
your conscience, who drew from the direction
of these bull? that shrewd argument, That if it
were lawful to keep a right heir from his king-
dom, in respect of conscience, before establish-
ment, it was as lawful to remove him after he
were established. The wisdom of the Holy
Ghost orditineth, That < Bos lapidibus obruetur
' si occidctur douiinus :' though we leave all to
the law's ordinance, and his majesty's good plea-
sure. But whatsoever happeueth iu the pro-
cess, I must confess that bulls ha\e Little rea-
son to require a mittimus into these parts, since
neither their access is acceptable, nor their suc-
cess fortunate. The point whereat I wonder
roost, in revolving these strange events, is, That
the bulls which were consumed into ashes at

White YVehbs, should be brought forth this day
to be baited at the Guildhall.

At the king's first entrance into this happy
state, with as great security and ease, as if he
had removed after an ordinary fasflion from
London to Greenwich, aud from Greenwich to
Hampton-Court, the most expedient device
for the disturbance of the general applause,
which entertained ' nostrum Solomonem paci-
' ficum' with a kind of joy and cheerfulness
unspeakable, as was conceived by the brother-
hood, was to awake the purpose of invasion,
that slept in foreign parts, by a set messenger
imployed. But though Venus had commended
this Petition by letter of request to Mars, it
would not have been heard, God having then
prepared and disposed the minds of princes on
both sides to such a peace, as could admit nei-
ther secret operation, nor open execution of
hypocrisy. This was not by the method of Di-
vine process, ' eligere iufirma ut coufundot
' fortia :' but this wus rather by the spirit of
Achitophel's suggestion, ' abuti tortibusut con-

* fundcruntur omnia.' But thanks be to God,
the lion is alive, out of whose mouth you must
liave drawn your dropping honey-comb, before
your riddle could have had either the grace or
the success which you desire among our con-
spiring Philistines : so that we only find your
fixed trust in tumult and vexation, as the
prophet speaketh, instead of that hope and
silence which should have been your sheet-
anchor.

Your end was by possessing princes with the
motives of your malice to stir compassion ; be-
cause it happeueth often that exhalations
drawn up to the highest region by the beams
of the sun, are there inflamed and sent back
again with a tiery effect: but ' multi commit-'

* tout eadem divcrso crimina fato.' A great
philosopher obscrvcth to the same effect, that
' I'rosperam scelus virtus \ocatur.' And tun-
ably to this consort another, that though the
fact and intent were one in both, yet ' Ille
' crucem sceleris prctium tulit, hie riiadema.'
But in this case by the goodness of God it fell
out quite con t ran- ; for the princes being as
weary of war, as you were of peace, desiring
as much to spare blood, as you to let it out ;
and regarding more the grounds of their own
discretion than the storms of your passion, sent
away your second Mercury with a flea in bis
ear, and instead of procuring treasure and sup-
plies, were content to learn, by the scope of
this employment, that some professors of the
C'aiholick religion had other views wherein to
e\t:rci»e their inventions and meditations be-
side the repetition of the Rosary, which with-
out so manifest a proof, perhaps they would
either not at all, or not so easily have credited.

The crm>pirators could not devise a more
likely motive of attraction whereby ttrdraw
mnlecouteuts and beautcfeux into the mischief
which their malice did intend, than by whit*
pering into the ears of ignorant and ill-advised
Catholicks, that his majesty had violated a
former promise made to some of them before^

STATE TRIALS, 4 James I. IG06.— in the Gunpowder Plot. [338

of the simples, and ingredients which thev re-
ceive, ' decepto semii cum judi< 10/ the judg-

337],

of toleration in point of conscience : for ears
that itch after light reports, and minds that in-
terpret commou fears in that sense which tends
to their private harm and prejudice, converting
lor the most part to rank poison whatsoever is
prepared by the best affections to kindle nutri-
ment, take hold of the first overture. But for
prevention of this peril, God so wrought, bv

inent of the senses being fust deceived, *et cor-
* ruptis organis.'

it is clei-r, that f >r the secreting and con-
ce ding of this purpo.c, till \.y progression it
Might be ripened i* »r t!ie desired end, ihe seal
of the Sacrament ot" union was set to this con-

disposing times and accidents to best effects, as I tract of blood ; as it' ( »od would Lc put in trust
before the poison co uSd pierce to the secret ot' ' '" ' ' '

men's thoughts, Wats >n tlie priest had con-
fessed to myself, sent from his majesty to the
jail ot Winchester, for the finding out of the
first author of this lewd report, not past one
day or two before his death, at which time no
man is psesumed by the civil laws t > lye, thr.t
he never could receive any spark of comfoit
touching ease of conscience to Cathrlicks from
his majesty, how unjustly soever the world had
made him author o\ that scandal ; though w ithal
lie added how unwilling he had been to utter
the kin*'* answer to the C'atholicks Ht his re-

with the keeping of ihp*<.> j.rophane hands and
obligations ot conscience, niruiiHt the role and
canon of Irs own written law, ' qee versa tur
' tantummodo in honip r*dei judiciis.* But we
thai know what de"j*e:are eliert* uu worthy eat-
ing of the Sacrament, :<i.d the ortMniiplion of
hearing tic stnndurd <■* oi*r Saviour in open
iield niL'iin.-t himself. have wrought in minds
polluted wiili i'iipic.-ii ms of mil , that are
voluntary i»nd prcnic;::tat,\ v ill i«>>t greatly
wonder aL the bad >aoe«*s of thi* c n jum tion,
calling to mind that the lirsr. wo.k of Judas
after the receiving of the tf»r», was ro betray his

turn iu hi* own words, and with those incurable j master, and the next t > bang himself; and in
obstructions, which appeared by the maimer, I such :i manner, * nt crcpaiet meuias tt elliiu-
for fear lest over-great discouragement might • th rr:«tur ejMs vrc ■'•;•,' tin' he brake iu the
make thein desperate, and drive them to seek I r.i'C.riie, and his en>raiU came out of him.
other hrh-s, as some did, which this action ■ Yn: puren- • i.: these gidlants in binding
makes i-t idem. ] fahii ami pr >:■!>• on*.* to aporher by solemn

Be'idi;^, there are in England some ltccusants j oath, tho<t»h ' j ea.eus est oui fid* m pra^tat
at this day, that for a need both could and i c errori,' stood u;»oii the tii-irnst that one re-
would avow the like report of iYrcy after his j posed in aiici'.iTb love and in useless constancy
returns out of Scotland, both before and alter ■ holding th" i.;.- *.-!•, es as sure tdter such seal of
the queen's death ; advising no man to depend the contract, us Seu-nciis dil himseif in the
upon the least conceit or apprehension of hope , i] t nd.:t;o:i < -a city to be budt. in: he air above
from thence, but make the hi -it shift they could the reach ' .'" the capaeiv or wit of man ; but
devise for themselves; f;>r in the point of con- ye! experi' nee reveals, that the hands of Ma-
•cience he found the king's intent and final <li m h*v .* ibu^hl again*' themselves, the voices
purpose to he peremptory. Bv this piain deal- of i?.:!.cl have confoimded tiieir own plots, and
lag many were deprived of their be»t advantage th'-.' f.>rr.»rn hopes like t'iO knights of Cadmus,

of improiing this shreud circumstance, botb
as a colour of exception and a mask of con-
Ipirar y.

'Hie practice was begun with auricular ("ill-
usion, as the safest lock to which men durst
adventure to commit a secret of this weight ;
for, who could hope to draw that f:oin a con-

: s apj-eareti) bv tlje s- ;-e of their own confes-
sions, * luutuis rorc.ideiiiiit vulnerihus,' have
hem wounded to <ieat!i «.ae by another.

'1 he course oJ mining iuto ilie strong wall of
the parliament, was i'i very tiicd more labori-
ous -.isd -low, but \vt more sure and secret
than the latter by the vault, in case the pio-

tident or a confessor in respect of safety, be- . nrerj had proceeded resolutely according to the
sides censures of the Church, the peril reach- plot of the first de\ice: For prevention of
lag and extending to the loss of life? But by , which almost inevitable stroke, the cellar was
the streams of Jordan running backwards to sit open even in the very heat of their endca-
tUj drowning of the wwr»t disposed pail, it \.»er, a* it v»ere by the luindy-work of God
cube l<> pass that by the words which patted : hiu^eif; and not only set open, but almost mi-
betnuen Grecnwell and Bates (Cale-hy'a ser- j raruloiis.lv ji»it into thtir lands by a faithful
u:»r; in conft \-si.>n upon the horror of his con- j servant < f li * kinn's, whose nnlinary camion
tcivi'j'i aaain-t so foul a fact, those circiuu- j couid not po->iblv have heen so \\%r over-shot,
ttaacc-s happily fell out, which being brought , v. it h..ut a:> inward wurLiiiii and c-mtriving fa-
to ii'ihf, made a fair introduction into that full [ vonr from above, wl-.ich took hold of the feet of
«li*"overv which the lord* laboured. It mav be t sinners in that verv snare thai thev had pre-
tb'iUuht that God himself abhorring the laisc- I p.ired :.!».! set for those that were most mno-
fcoud of a priest, that under the colour of the j cent. „ 'I hey ilatiend ib«ir own conceits so
keys, abu-iiuc botb his person and his power, is . idlv, but ytt >o far with tiie farihty of working
lot Ashamed to contrive conspiracies so much j upoii this u::e\pf c'etl uvi-phw, as if it hud
owre perilous and pestilent, as they are conn- I b< in tl.e wiii o! (iod, that to them, as to Jacob
tttunced with a more holy shew, hath set a j hunting for hi:, prey, 4 oceurtret quod vole-
DUirk of bi;» own wrath both upon the matter j ' kn;[ :' Hit on the other side we may observe
and the minister. For the patients are often- with joy and co:nfort. That though tiiev wutch-
timc* beguiUd in judging by taste the quality ed c.^uly wilh Lsau for those dayi of mourn
vol. U. ! '<'.

S39] STATE TRIALS, 4 J awes 1. 1(K>6\— Trial of Henry Garnet, a Conspirator [540

iug, wherein the death of* I sane might prepare i
a way tor 'heir trw»t bloody and nii^t violent '.
revenge, like rats between the hanging mid the ;
mull * &uo pcrierunt judicio,' they were first
betrayed, and afterwards perched by their own
discovery.

Their spleen was even 'saewie in saxa,*
bent «cain>t the walls and Ivouse of parliament,
as an instrumental cause Tor producing many j
sharp laws, for tlic space of more than forty {
years, against the religion, which their own dis- I
gui«ed affections did eagerly embrace, with a
purpose to convert Hierusaleni ' in acervum <
4 lupiduin,' into a heap of stones. Thu* Vo- I
lyuuicstor strickcu blind, out of inge against
IIecul»a, sought to murder all the women he
could meet. Thus Fulvia by thrusting needles !
iuto the tongue of Cicero, after he was dead,
sought revenge of his sharp iiivecti\es against
Antliony : And thus Anthony himself warred
again a the walls of the senate- lir>u«e at Home
alter Cesar's death ; but yet the place is as it
was, the Iveuches stand as they did, and they
that set on them have the same * infectious
which before they had ; in forced perhaps by
this late more than Neronian attempt of en-
dangering both their souls and bodies ut one
blast, for want of time to call for grace, to
strike a deeper wound than any of their ances-
tors had done before into the cause which the
scope and drift of these undertakers pretended
by their inventions to rectify. Tlie Roman
soothsayers bad reason to divine, that when
bulls, ImiiHogs and asses, which are boasts
created for obedience and use, grew mad upon

* sudden, and without a certain cause, ' Bel-
' lum senile munioihat ;' and of this composi-
tion was the late pack of rebels, that with the
Mime barbarous inlmmauity, which was well
observed at the ruin of Saguiitum, * nihil reli-
' qui feoerunt ut non ipsis elementis neret in-
4 ju'ria \y left nothing undone for their parts to
wrung the very elements. I graut that they
.might learn tiieir art of building muddy walls
of tlie swallow, which are but summer-birds ;
and their skill in weaving cobwebs of the spin-
uers, whom Minerva hated ; chiefly, because
their works were more laborious than durable ;
and most commonly swept away before they
came to finishing. But this trick of subverting
and demolishing, they coo Id not learn better than
of the Montauists, * Qui non lahornbunt,' as
Tertulliau reports, ' ut adificarcnt sua, quam
' ut destmerent alien a/ to build their own as
to destroy other mens ; ' lieu genus invi>um

• superis ('

'1 he train of powder was laid only for true
men by wicked traitors; to this end chiedv,
that after innocuncy had endured, malice might
insult, that ' cum scelera prosunt, peccat qui
** ret te facit :' and conclude with the rankest
ath'ists of our time, a prejudice of ( »ud*» anger
against faithful subjects, out of the barbarous
effects of their o*-n villainy : For this argument
is used in defence of the slaughter of the last
French king. But as wc find just cause to re-
joke thus far with Shadrach, Mcshech and

Abednego, * Nihil potestatis in nostra corpora
4 babuisse ignem :' That the rage of the fira
h»d uo force or strength against our bodies,
God's angels coining down of purpose both to
disperse the tlaine, and to infuse in lieu thereof
* ven turn roris uanteiu,' a cool wind of mild
air breathing, to slack wasting heat, * Ut nequc
4 eos contristarct ignis, nee quicquam molestut
' in ferret ;' as it could neither make them sad,
nor onend them any way : So on the other side,
God wrought so ]>owerfully in this particular,
to give a taste and a feeling to some of the
chief traitors of those endless flames, that in
another world shall never ease, without contri-
tion ami confession in this, as in the chiefest
puzzle and perplexity of their ill-thriving prac-
tices, they were blasted by the rage of their
own gunpowder.

Thus Alexander 6 and his darling Borgia,
the only monster of that age, were poisoned by
error of the cupboard-keeper, out o( the bottles
t hat w ere kept in store, and by Caesar's own
appointment, against supper, for the destruc-
tion of certain cardinals. And thus it happens
many time:*, God's justice far surmounting
man's capacity* that those instruments which
we select for execution of malice, serve for the-
protection of innocents, * Et sa?pe fugiend©
4 mala, in majora incurriuius.'

These Cata lines in the raging distemper of
tiieir passion, which ineeteth their own wants
( et eommoda uliena pari dolorc,' were so de-
sirous to draw blood even ' ad amnio; deliqui-
4 um,' of the noblest, the truest and best sub-
jects of the state in all degrees, tliat had not
one drop of attainted or intected blood in any
vein ; and to make sure work; that there might
he spare of none, like the Roman triuravuv,
thev held it safest to let out their own, without
distinction of kinsmen, allies, or friends; leav-
ing no one man of mark out of the list, which
was agreed upon by the conspirators. But
mark the proof; For, as Leo writeth to Mau-
ritius, * in victoria veritatis, sola veritstis ini-
' inici periermit,' none but the enemies of truth
did perish in truth's victory. For whosoever
loves to dive into the waters of contradiction,
w hose property is, as a learned father notes,
rattier ' vorare' than * portare ;' may be sure
to expect in vain, that the liand of Christ which
assisted Peter in his fair!), should support them
in their fraud : For between truth and false-
hood, us well tlie differences as the degrees
infinite.

It was holden a Mite course and of great
for advancement of tin* bloody project, that u
faculty might be granted to some persons, which
in that rank were refuted choice for their ex-
cess in cruelty, *..nd barbarous inhumanity
[ above all the rent, for the calling in of such
other assistants und confederates, as * Non
4 propter exniiins virtutes,* but *uch as * pare*
* negotiis ci\int nee supcrerant,' and that when
the stock grew poor, might be best able to de-
fray cxpeiices, to ease burthens, and advance
desires. But it fell not out that any good grew
! to the cause by any pcrsou let in at this loop*

3U]

STATE TRIALS, + James I. 10Of>.— in the Gimpcrwdcr Plot.

[343

howsoever their, affections were bent: For Fran-
cis Tresham the lust above, intended much,
vat effected little by relief*; only this I note,
that by his passions and words in his first an-
swer at the council-board before the lords, he
left so deep impressions both or' his fore- feet, j
and his hinder-feet, as though we could not evi- j
den try descry the hare, yet we easily discerned
what coarse slie took, and thereupon the better
with a full cry uf>on so hot a scent pursued the
fane that hasted to get over.

No loan can deny but it was in Robin Cates-
by the trick of a crafty pate, enrounding vio-
lently the rain of our sovereign, and his royal
progeny, to engage the fortunes of his dear
friends, Rookwnod, Oram, &c. to his hungry
creditors, in deep bonds before he would im-
part to them the secret of his Plot, supposing
certainly, that in respect of their own danger by
his fall, they would be more apt to undergo the
hazard of all event 9, and rather chuse to die
with him, (though the worst should chance) than
to beg after him ; having in the mean time in
their eye so bright an object of enticing hopes,
That ' siimina scelcra incipiumur cum pericu-
4 \o, peraguntur cum prcnnio.' Hut as the
greatness and inwardness between wicked men
(according to the grounds of moral vtisdom) is
accounted rather conspiracy than amity, (hav-
ing bat ' roetum et noxani conscientia? pro foe-
• aeref so likewise in this rase, the success was
suitable, for one led another by the links of
combination to the reward of cozenage. Trust
was the trap, false hopes the buits ; and all the
fruit they could expect by tricks, was of the
same quality with the grapes and pomegra-
nates that grew in Sodoin, after the ruin of the
town, as we read in Origen, (that is) smelling of
sulphur, though delightful to the eye. And even
as those upon the nrst touch were apt to dis-
solve into powder, so were these upon proof to
ran into Gunpowder.

The scope of some chief actor in this tragedy,
mora sensitive in that point of compassion, -as
k seems, than the rest, was to advise a noble
gentleman, whom in respect of his approved love
and loyalty to tlie king his sovereign, ho durst
But trust, by an obscure letter, more resembling
tlie riddle of an Oedipus than the counsel of a-
friend, that he should abstain from the place
prefixed at the time determined. The dark
■gore of the writing, the »trnn<*e manner of
delivering, the small likelihood or any cloud at
that «ime gatliering, might have moved many
•aea rather to have neglected, than apprehend-
ed so blind a figure of discovery. But this dis^
creel and worthy gentleman, conceiving that
ami experienced in mysteries of .state were
setter able than himself, both to discern of
taints and unloose hard knots ; imparted this
oceerrent to certain of the privy council, and
they to the king, who by that spirit of true di-
minution, which is infused into the lips of , the
king by God, (as the proverb says) never guve
av«r mining into the purpose of this admonition,
with doe regarding circumstances and presump-
tions, according to the nature of the motion,

till the barrels were brought into light, and or-
der was taken to drive the devils out of their
den, the materials out of their opportunities,
and tlie pioneers from all possibility of effecting
the powder-works.

The purpose of these gallants ' qui pascuntur
' scelerc/ was to feast their eyes with 1 he sight
of our dead carcases ; tor since there were no
doves, but ravens, the less wonder that they did
' eequi c:idavera :' But now by God's provi-
dence it comes to puss, that their limbs feed
the fowls of the air; unless, the curse of God,
the putrefaction of sin, and horror of tlie fact,
move all the creatures of God to loath and ab-
hor to look upon them.

The same sly serpent that seduced Eve, by
the deceitful bait of understanding good and
evil, to transgress, induced some of these, I
dntibt nor, to undertake more gallantly, upon
hope to lie reputed holy angels in this life, in
case I heir enterprise succeeded happily, or
martyrs iu the next, if it fell out otherwise.
But by evident coufession it appears, that the
very night wherein the powder should have
wrought the desperate effect, either the light of
reason, the horror of vexation, or the powder
of revelation, presented to Robert Winter in a
dream, the faces of his chief friends, and the
highest traitors that should have acted execu-
tion upon tlie bloody stage, iu such a ghastly
and ugly figure, more like to that * malus ge-
1 niua* which appeared unto Brutus the night
before his death, or the face of Hector that ap-
peared unto Andromache, or the countenance
which they themselves held afterward upon the
pinnacles of the parliament, than to that figure
of beatitude, by which their own fantastical
conceits and alluding apprehensions were too
much 1) uttered. For it is not only true that
God, as Job says, ' terret per somnr.i,' affrights
by drenms, * et per visiones horrorein concutit,'
mid by visions shakes the mind with horror:
But beside, this ground out of the book of Wis-
dom chu never f:til, as I said before, that • cum
' timida sit neqmtia, dat testimonium condem-

* nationis:' Wickedness gites evidence of con-
demnation, because it is> t morons, * Ft semper
' pr* sumit saeva pertubata conscicntia.'

While the wisest in this wicked pack, upon
the discovery made by that worthy lord of whom
I spake before, began to lay their heads toge-
ther, and iu a sniggering with great uncertainty
what course to take, stood with the king of
Babylon, as the pootMiys ' in bivio micerintes

* divi:mtionem ;' some doubt in?, somesecurm<!,
some hoping, some despairing, and all setting
the cause in such a course, as iu case Percy
their explorator, that was let out like a raven,
and sent as a *\>y to descry by the best induce-
ment* he could liud, whether the state took
hold of their diMwcrie? or not, brought back
ill news, a ship might be pre pared on the sudden
for the trnnsi>ori of this his pack, God dazzled
their eyes with so dark a mist of error and per-
plexity as they could not find the right way to
get out of the wood; nnd their prophet Perry
by securing doubts ut his return inspired ucw

313] STATU TRIALS, 4 James I. 1606.— Trial of Hairy Garnet, a Conspirator [S-li

life into dead hopes, that the project for speedy
rigging of ;i snip wns carelessly ta^t o;r, and
cm i or lelc to make lull sat i- fact ion by sufiering.
For God, ih-.it cjii«cii the iir>t vc.-sel to he built
by Noah tor ihe saxing.uf tho^e eig;!it faithful,
pure and reelect ed sou is, that, rhuuid wit ii timer
renew tic v\ ..i id which -in h;id drowned in the
dcplli> ill" de p.. is*, would not pe.mit that any
other el that n; >u!J or fahiick, *>hoiild preserve
thc*e< i'lisl :i.if.:il>;fn!, impure ;:u>*! detested souls,
whose fii. I «:h lo .i. stroy tliis (*ix£<mc0[xof of
onr l.-.iis^ii^ii o.l«, which i-.sih been so strongly,
so oiit ii, and so puwerf.dly protected under
the wii.g^o: Jii^tv..'. i;-i'iii.."».

As Jo j!» ki-*Ld A hue.- wl:en ho gave him the
M:ib, .ie.'iv"...! }•«■.. el .ii.Kil ;i 'ii-i uiit.n she uit
■Na-oih'.-. tijA ai, ;:.-.d Judas kissed our >u\iour
wiji.n L;^ end w.:^ only to in.. ray hi.n to the
i%hari-».v/.: >.» IV icy, toe rig;! it limb oi" Lucifer,
] T.-lcr. iei \\iih a colour of :!evn-.:o:i w i.Us the
linage of I .e hles.«u:il ^ ii;.':i, ul'.er ■•.* hud
plig!»:cd filth and promise to ni-. c ova. lie- s, I y
tdowmgnp iii-j hoily of the stale, to de-lro\ the
Liiii!, who is imbed t!ie sirred image or' toe
denial N>n. Ih.l God, whose hoy pnrp« s.e
was to puiil^h.tj the wo: Id kov. far his i.L.-std
mother is !ron» coimfMiancinn :>n-i protecting
traitors, that by opposing to bii d* pntv revolt
from hi;n. branded thi? ail «f hviincrisY \>ith
so palpable a mark lor an admonition evei la-t-
ing to weii-meaning soul*, ih.t arc oftentimes
sui^ri/cd in their weakne-s, by false sccmim:
aliens of pinty, when the practices are foul, ;•>
<»n t/iAf. wry least uf the blessed Virgin, (»vhose
picture Peicydidso embrace) which shall set
tort i to ti:e world's end the memory of Christ's
incarnation, whom the traitors would have
wounded through the bide of Ins lieutenant in
the s* at of majesty, an act did pass in paiiia-
i'itnt fur the blowing up of these monsters and
their hor.vs that bv an act which never had the
voice of any member of the parliament, would
have blown up both houses.

To your own drift and purpose, master Gar-
net, in recommending iliat uutieiit hymn, used
on the day of All Saints,

1 Geutein uufeitc pcrfulain

' Cri dentii'in de fmihiii;
for a speedv dispatch of nuinv innocent*, tint
God, wuii'li c tiiverli both the labour* and the
pn.vei?) of the wicied into sin, and relic '-leth
cxicrai oils of infidelity upou the heads of those
that execrate iiuit cur*e without ju-.l ground,
gaie satis'act.o •, though in a r<>ntiarv element ;
jiuruiiiir tin* pro.nt ««t-iti! of Cati'tby, I'eiry,
und ilieii'c>>iiii.i:ce", whuh nny in:lv lit: n < kon-
f.l. and rcfiuri'd al.o\u ail dumi tii:it i*\er were,
' ' ii -;ii pi'r(idi»Mina,'tr:ms'*eiidiii»all proportions
eiiiitr of pri'cedenl or fulnrc unmamiA . A>
1 »r .»Mir f. rvi-ni'v in s\»ivinnir and foi>u faring
iimiu'um unt nil h*i, and Mich a> \ou were lb: red
sif'i r^.uds to conh-s wiih a li]o>hii'i; eounte-
naucf, it pmcefdefl a*- I tiiin't from a revnnii
14 L:ard m shadow ^reat. faulty which bi caking
out of Chaos into lii;ht, might cast scandal a*
you thought upon your whole society. Ami
this I gather evidently, as well out of your own

speeches, a* out of your request; that the cen-
sure of your weakness might determine per-
sonally, within the compass of your fault. But
we receive n further benefit thereby in da-
languishing he twee u the protestation* of plain
dealer?, and of those that are taught to equivo-
cate ; to mark tho^e that pronounce verbally,
when they renounce nun tally, ami those that
in point of fact are not ranged unto the rule*
of faith ; and the civil laws have resolved, both
justly and judiciously, that construction ought
ever to be made against the party that conies
masked to the bar, and speaks ambiguously
upon advantage, when he should speak plainly
fur satidfactic.il.

I dare undertake, it was certainly conceived
by you i\ir. ' Garner, and by Air. Hall your
fellow-prisoner both in profession mid bands,
that if bv any accident you might confer Lut
half an hour after you had pj^td the file of
their examinations, that had both \oa and your
cause in hand, the lips of scand.d would have
bttn si-alcd and shut up «o close, as nothing
might evaporate to emblemiih oaths, since the
lords of the cnmmi.vion forbearing torture,
dci.lt so tcuderiy; and thereupon you found a
second vent of whispering between two doors,
but with no better proof by this adventure tli&n
by the -icst. For your former rtstrvedness,
being now eiic»uiag«d and urjed by the spur
of opportunity, became so coi.udent in running
1 cyond it?i/h' tJirougu the cintf points whereof"
the stats was ni"?! eagi r and dcsirot>> to take
certain notice at that lime, as they that could
u>t reap midilt'lenu, ami many shifts and subtil
trv.eisiLS were over-wrouuht by ti.is occasion,
whirh could not be extracted out of your brcu*t
cither by intreaty or industry.

IJy writing to the pope in a christian mid
humble manner for the temper ng and cooling
of hot humours of so, me giddy-headed cathu-
lirks by his apos^oiiek authority, kit they mijjifc
cause distemper in the state, carried in appear-
ance a ti'Cit likihhood of that obedience nnd
p-itKiu-e whnh the word of God enjoins, and
w;<<< accoidiiiuly ohulgeci both bv >ou Mr. Gar-
net, and many others i»f your suit, f«»r the satis-
faction of tin ir rouce ts ihat were suspicious
of your phijn fail ii : lint many 2niw to tear by
the tiireivaruiiiL's which WaiMMi lelt befoie his
diMtl:, that tln<> was but a vizard of invention
to dazzle trii-t: And most g.ew suspicious of
a !!nseliii:f imminent, ihouiih they knew nut
wh.it it was: lite world heard rumours of a
fiat t > be wrought for the Catholicks-in parlia-
ment, though Kiev could not undci stand (he
mean, hih! experience hath taught i he ground
ofihi«* submissive letter to the pope, after the
bestowing of all the barrels among ihe piles of
wood, to ha\e only proceeded out of fear, that
Micli mint her h »t ilarai as arose in V\ ahs about
the Liddv miuiuies of some light Catliolicks
inijhr awake ttio^e eyes c»f Argils that were
brought into so sweet a >lumher by tlie pipe of
.Mcrcurv, and put all virus* and devices, out of
frame, that w« re to work with leisure, silence,
and lepose in the great hellish enterprise.

345]

STATE TRIALS, \ James I. 1C06.— in the Curpmvikr Vlot.

[346

Thus God intended mercifully the prosperous
and happy defeat of Achitophel's device, was
content chat the first contrivers should put it
to the highest proof, that upon discovery the
practice might he more clear, the state more
secure, and the fault more inexcusable. For
1 homo inimicu*' the envious man sows his
fares so shly and secretly at the first, as the eye
of observation cannot reach to the depth of
fraud ; but like bastard-slips, the higher they
grow, the more evidently they discover the true
parent's impiety.

Greeuweil desiring more the good success of
this invention, than the planting of the Roman
fiuth, enjoined Butts in the secret of con fission
to reveal the pin pose to no priest; so jealous
and suspicious he was (in respect of the main)
both of weakness and error in his own consort :
and you Mr. Garnet, no less provident in those
things which concerned your own safety or
repoution, or us it is said by one spiteful alike
with yon,

* Subsedit dubiua totam durn colligit iram ;'
forbad Green well to five the least inkling to
Catesby of your privily to the proceeding,
though you were made acquainted with the
matter m generality. And more, when you
were assured of a likelihood of good success
by Catesby's own encouragement, (so much
aaer are the children of this world, that do
rather • sapcre <|use sunt carnis,' than ' scntirc

* qu« sunt spiritus,' as l'aul forewarns, than the
chikheii of li^ht, hut this is only in their own
generation) you vumc so careful out of fear to
he surprized with a he, (as the wicked judges
were by Daniel upon the question ' sub qua
*arbore,* under what tree) and that your con-
fessions might be consonant, that the (piinros-
tence of wit sublimed to the highest point,
could not work more precisely and more punc-
tually lor prevention of discovery by orderly
digestion of all occasions or directions, thanvou
did by i his preparative. But against the stroke
of Providence all counter-pnictices are vain :
tor * dies diei eructat verbum, et nox nocti
1 inriicat scientium,' as may appcvir by that

* oubes te>tium,' tiiat cloud of witnesses, which
turning to a Scotish mist, hath not only
wet both yourself and your fellows to the skin,
but lieside, made all their shameful parts so
manifest, (even to vulgar eyes, that were to
act upon the bloody stage) as the prie>ts thein-
sthes appeachiug one another, ami falling out
to he * suorum riagjtiorum p rod i tores/ were as
ranch deceived in the thcorick of trust, as the
by disciples were in the practick of conspiracy,
tor it ts no less strange than true, that the
powerful God (which by his word assureth us
Unt the birds of heaven shall bring those pro-
jttfi and inventions to light, that are contrived
ui tlie secret thought, or privy cabinet of :;:iv
wicked and false-hearted subject against the
kiag) liHth so lifted and prepared instruments
of overtures, as the mysteri<r* which passed in
omt'oMon between the priests themselves (re-
pealed by themselves) come this day and in this
fMKmncd place to be scanned and censured.

I I will now shut up thin audit of demonstra-
I tions which we descry (God's auger working
almost miraculously in the transmutation of
substances and change of properties for accom-
plishment of his own just ends) with the highest
J object of your wicked aim, which was the de-
struction of the most just, learned, bountiful,
temperate, and tender-hearted kins, (I may
speak it on my conscience without base flattery)
that ever was ranked either in the English or
the Scotish register: his right, his heart, his
tongue, hath wished happiness, and brought
security to this state ; which if you and your
confederates disdain or wilfully reject, his own
good withes shall return to himself, and the
dust of those harmless feet, that never were

* \eloces ad ctTundcndum sanguinem,' swift or
ha<-ty to shed blow!, shall raise a cloud between
you and that Eternal Judge in the dreadful day,
to plague your ingratitude. For what is the
fault (in the name of God) that can otlend the
most precise and captious conceits (excepting
conscience, for which he must neither account
to Bruno or Ignatius, but to God alone)
wherein the kinc may be said to have cast dust
in their eyes, that were most violent and dili-
gent in preparing fuel, and making tire, for the
sacrificing of a lamb, whose innocent blood,
like tliat of Abel, would have cried for ven-
geance in the car of God, against the cursed
crew of all the conspirators, if their success
had been fortunate ?

By the way, I cannot cease to wonder at the
providence and piety of this thrice happy king,
this * pacotor orlvs/ (the real attribute of Con-
stantine) who seeketh to establish the throne
of his dominion and power, neither with the
three feet of Apollo's stool at Delphos, which
his own interpreters have understood of nimble-
ness, observation and subtilty ; nor only with
the lions and lions whelps, that garnished the
six steps ascending to the chair of .Solomon, to
stir up magnanimity, both \\\ young and old,
but according to the rules and ancient pre-
scripts of our English government, with the
three piles of conscience, honour and the peo-
ple's love ; and that so stedfastly, as the sons
of Belial have neither hope nor possibility of
compassing their own desires, without cutting
otf these three, that is bishops, peers and com-
mons at one blow, ' ut ccspes uniis et regem

* nostrum, et rem pub. tegeret.' Tlierefurc hold
not the peril strange wherein you stand at this
present, of another kind of triplicity specified
by Solomon, for proportionable punishment of
your barbarous atftct:on in working (by the
quintessence of inhumanity) the ruin both of
prince and slate, for * Funiculus triplex non

* facile ruinpitiir.' For to men of uncertain wits
and aims, it happens often in experience, thst
by the least swerving either of the eye of judg-
ment, or of the hand of use, instead of the
white of ambition, they hit point-blank the
mark of execution : therefore no man shall he
able to avow either in the present or the future
time, that they which sit as judges iu thi* case
of execrable treason, wash their hands itith

V

347] STATE TRIALS, 4 James I. 1(106.— Trial qf Henry Garnet, a Conspirator [348

Pilate in hypocrisy, when you and your confe-
derates that stand forth to he tried, cannot wash
your own hands wiih the prophet David, * inter

* innocentes,' among those that are innocent.

Princes use not to taste offers without assays :
we cannot admit your obstinacy in refusing to
pledge the health of this whole estate ; and no
man knows better (Mr. Gai net) than yourself,
by what writ true men are warranted ' in poculo
' quod nobis mi3cui*tis, mi set re vobis duplum,'
to give you double measure of the draught
which you had prepared for the state's de-
struction ; when your purpose waa^jf courses
Lad suited to vour wish) that it attuld begin
from them. By this it appears, thW ' virtutis

* cursus* (if that were in you which the world
did imagine) was * celerior quam statis,' that
your life had over-run your loyalty.

It is hard for a man so many ways engaged
to a prince, and for so many favours as myself,
to cut evenly between allied ion and truth, or to
provide so tenderly by preoccupation, as no
spider may suck poison out of a rose : hut ' jacta
4 est a lea,' and therefore since it is neither my
delight to sow soft pillows under princes elbows,
nor the king's desire that his trusty servants and
true counsellors should with the glosing pro-
phet* in the days of Micah utter ' placentia po-

* tins quam sohda,' I would only crave that li-
berty whirl i is afforded in case of private per-
son* to artections that are most indifferent,
which is to present his picture to the eye of ol»-
servatioii in true colours and proportions, with-
out swerving too far on either hand, because
lie must ever be ' iniquus dignitatis judex, qui
' aut iuvidet ant nimium fa vet,' and to wipe
away the wrong which hath been done to him,
and hereafter may by false aspersions, from the
pencils of prejudicatc conceit, awake my spirits
in discharge of duty, l>eside obligations of grace,
to raise my compass thus high at the least, and
to lend my strongest arms and best endeavours
to the just defence of a most just and worthy
king, furiously and unjustly set upon. What
spirit moved you and yours, Mr. Garnet, to dis-
solve the quiet of a state that never conceived
you in her womb, with a purpose tlutf, like the
brood of vipers, you should make your issue
into life by eating out the bowels of the dnra
that gave you both creation and nourishment ?
for it could not be, but the commonwealth ' in
' ipsa vindicta libertatis,' as yours termed it,
' esset peritura,' when Cateshy and his despe-
rate rout meant not * subigcre nostram urbem,'
as tlie Athenian orator s-.iith of Philip, * sex!

* funditus evertere;' well knowing that tliose
th.it escaped, to be slaves * neque volnerunt esse,

* nen/ie potuerunt ' What ailed yon to mine
into the strongest fort of your dear country-
men, who living by the temper of the king's af-
fections under libra, that is as much as under the
golden line of justice, moderation, and grace,
can hardly judge out of their own affection,
whether the nights or the days pass over llieir
beads more happily. For neither is k passible
at this day for Virgo, that barren sign, to en-
danger us by orbity or age, nor for Taurus the

bull to gore our sides with anticipation, nor for
Scorpio to sting us in the heart, nor for Sagitta-
rius to wound us in the reins, nor Aries the Ro-
man engine to butt with his offensive head at
the walls of our high court ofparliaineat t ' tero-
' pestas abiit, et ecce nova facta sunt omnia/

At his majesty's first entrance he found ui
embroiled and greatly weakened by the deeply
festered long running ulcer of a lasting war ;
what was the cure ? A beam of wisdom, season-
ably derived from the practice and experience
of the wisest king that ever was, to conclude a
peace * cum omnibus uationibps in ctrcuitii,'
that every faithful subject might enjoy the shade
of his own fig tree, aud the fruit of his own Tine
from Dan to Beerslieba. I do easily believe,
Mr. Garnet, that this course was nothing agree-
able to your affections and ends, that sought a
greater gain by fishing in streams that were
more troubled ; and sitting on a bare bough,
like the raven when the lion and the leopard
came forth to right, began bravely to sound a
point of war, in hope that whether of both those
had the worst, one should serve for a prey for
him to feed upon. And with the wicked crew
in Lucan your prayer was,

' Non pacem petimus, superi, date gentibut
' iras ;'
but were of another mind and hope to make
you pine a good while longer at the calms of
our repose, before you put us into these distem-
pers, that have made your own best friends, and
fairest fortunes absolutely desperate; to whom
so far as in modesty you could ask, I may say
with Paterculus, * quod tumultuando adipisci
' petiistis, quiete obtulisset respublica.' Peace
is the mark whereat the Holy Ghost would have
all religious affections to aim : it is the raior
that cuts the throat of crying sins ; it is the
good angel that drites horror out of the- con-
science of every Christian, m hen death threatens
to arrest ; it is' the chiefest badge by which our
Saviour would have his true disciples known
rrom hypocrites ; and it is both the richest and
the Inst jewel which, departing hence to his
Father, he left to his spouse the church for a le-
gacy. Aud therefore our prayer by opposition
to your exorcism must be thus,
* Nulla salus liello, pacem te poscimns omnes.*

But how long is it, I pray you, Mr. Garnet,
since the heart of every faithful subject in this
kingdom was ready to break with a tearful con-
templation of those rocks, upon which the res*
sels of all fbrtones both public mid particular
were likely to have run, at what time soever
Deborah was to walk the wuys of all flesh, and
to be laid up to rest in the grave of her ances-
tors, for want of a certainlv designed successor,
upon whom Israel might only fix their eyes, both
for satisfaction in conscience, and infallible di-
rection to loyalty ? In those days the state was
charged by all your pens and pamphlets with on
uncivil, or rather an unchristian facility in flat-
tering the present tiino, with peril to the time
to come, in preferring humours personal before
real plagues, and in settling the whole weight of
this state upon the staff of age, with no lew con-

SW]

STATE TRIALS, 4 James I. 1600.— in the Gunpowder Plot.

[350

tdencethan it* it had been a pole of eternity, f
You coeld tlien insinuate for the kindling of
andatiful affections at borne, how deeply both
the queen should be charged in another day for
setting the kingdom's rest upon the weak cards
of lier own particular respects ; and others for
iadiniiig so much out of awe to the predomi-
nance of time ; as without the work of God's
powerful hand, their fear might have been the
cause of the states overthrow. Nothing was
then more rife iu the mouths of many Catholics,
than tlic wrong that was done to the true and
lawful issue ot that worthy queen, who, instead
of digging up a turf according to the manner,
■■rtr her grave an entry in her son's behalf to
the title ot these crowns ; as if she should have
laid with the conqueror when he took a fall at
his first landing, * Terrain capio :' by laying
down her life, she took a formal livery and seisin
lor her sou ; her life, I say, more precious than
either my mind is able to apprehend, or my pen
to deliver.

Give nae leave therefore to enquire of you in
the phrase of Paul, and rather with true zeal
than detracting spleen, * O insensati Galata?,
4 nob vos suscitant non obedire veritati?' O ye
Sfspless Galutiaus, who hath, since that, stirred
np your passions against obedience to truth, and
amved you in this manner to abhor the most
cordial receipts for cure. of inveterate infirmi-
ties, as if ihey were compounded of Coloquin-
lain, which ni hatred of time past you only
ongJt, as your onW restoratives ? For though
eiery man that had in his bead either half a
ntadsm of discretion, or the least scruple of corn-
ana sense, knew very well wliat should become
at those which in the day of demonstration durst
protest with Shebn the sou of Belial by sound of
Immpet, * nullum sibi esse partem in David,
* oeqoe hasreditatein in filio Jesse ;' that since
they had neither part in David, nor inheritance
>a the ton of Jesse, it were free .to Israel to re-
turn to their pavilions; yet I must confess that
the wiser sort * in ouinem eventum,' to mnke
lat foundation more sure, would have purchased
the public satisfaction iu this degree at an ex-
cesstve rate, which was suppressed by the
■length ot' law, and overcast with a cloud of
saspicion. We are not ignorant in those days,
Mr. Garnet, how many did expect with Esau,
1 diem luctas ' for opport unity of revenge. We
knew both in what manner, and by whut means
loose heavy bodies, and more heavy spirits were
hi hope to raise themselves like bustards in fal-
low fields ' vi tttrbinit,' by the strength of n
whirlwind, to that height which ninbition, void
of doe consideration, did foolishly affect.

It is evident that Ishmacl would have been
banc**, play-fellow : and every day more argu-
ment* fsere brought to light of a strong desire
in many minds, that Eteocles stud Pnl voices
ttght make partition of their inheritance
' acute fcrro/ with a sharp outline sword : But
v Paterculu* reports of the security of the
Uoman Kmpire, otherwise than wus expected,
after the death of Augustus, we felt not so much
** • qaivariDg of that commonwealth, of whose

ruin we stood in so great fear, ' tanta fuit unius
* viri majestas, ut uec bonis, ueque contra
' molos opus armis foret :' for so great was the
majesty of one man, that not so much as tliose
that were dutiful needed weapons against those
that were traitorous; for whatsoever he pro-
tected was safe, and whatsoever be rejected did
only perish.

And thanks be given to God, we are now so
safe and thorowly secured from foreigu groans
and pining fears by these sweet olive-buds which
environed the mercy-seat, as Doleman may in-
deed dolert, that by no kind of instrument he can
dolarc, that is, bore or wimble, into this glo-
rious and graceful stock, wherein he would
inoculate the griefs of his stinging grievances.

Again, it cannot be denied, tbr.t the state of
this strong Island, if it be considered by inte-
grity and union of parts, was in a manner pa-
rulyticol, so long as Scotland was divided from
this realm of England as it were in half, by pri-
vation as well of motion, as of sense : and by
reason of obstructions in divided heads, that
stop tlie free course and passage of the spirits
thro' all and every part and member of the main
from preservation of health and strength, it was
like to fall by the least distemper symptomati-
ca! into a dead apoplexy. It was a work of
mercy in our Saviour to cure * manum aridsm,'
I mean * aridatn* in respect of the small use to
us, tho' active, strong and powerful for itself.
It was an act of policy in Caesar to shut up the
back-door that Ut in the Germans to the dis-
turbance and disquiet of those parts in Gaul.
And great wisdom it was once in Severus, to
part tho>e from us with a wall of hostility, whom
since a more divine hand hath happily fastened
to us in eternal fraternity : for the Holy Ghost
accounted) it a curse to stand alone, because
he cannot be sure of his next neighbour to take
him up ; the branch bears fruit uo longer thou
it continues in the natural and proper vine, fed
with the Mime sap, strengthened from the same
root, cut and pruned bv the same vinetor. Thus
England and Scotland are the twins of Hypo-
crates, that must ever laugh, and weep together;
they are the Castor and Pollux that must ever
rise and set together ; tlicy are the two hands
of one body natural and |M>litic, that ought both
to wash one another's spots, and supply weak-
nesses : to conclude, they are that ' cor* and
' cerebrum/ that heart and brain, so fastened
and knit together in harmony and corresjjon-
dencies, that without a perfect union of both, it
is not possible for the isle of Britain t.i move
with power, to feel with tenderness, or to breathe
in security.

Our ancestors desired to hnve seen this hap-
py day, (I will not say as Abraham desired tlie
days of Christ, lest the comparison might per-
ha|is seem over-bold, but yet as they that live
under the pole desire to sec the sun which is
j familiar) as may appear by treaties between
i princes in the times of «u>me of our wisest kings,
1 us the third and seventh Henries : and again,
by (lie continuance of that earnest instance of
the Eighth, for a match between the young queen

351] STATE TRIALS, 4 Jame* I. m>6.— Trial of Henry Garnet, a Conspirator [362

Mary and prince Edward his eldest son, upon
easy conditions. The lets in former times pro-

easy conditions, l tie lets in former times pro
ceeded in part from the practice of foreign
potentates envying the greatness of united
crowns; and in part from the flaws ofdomus-
tick factions within the bodies of both kingdoms,
neglecting the benefit of opportunity thus ot-
tered upon the light impressions of private
fears. God himself bestowed this union be-
tween the realms of Israel and Judah (sever *d
much after the same measure and proportion
that ours have been so long), as the strongest
pledge of favour, und the richest blessing of
eternal bounty that his loving kindness could
confer upon both states, ' tit esset rex unus

* omnibus imperans, ut non essent ultra du%

* geutes, nee dividercntnr ainplius in duo regna :'
that there might be but one king to reign in-
differently over all, that they might no longer
be reputed two nations ; and with a further
condition, that from that time forward, tiiey
should be no more divided into two monar-
chies.

Many motives of encouragement have been
propounded, many satisfactions to jealousy have
been tendered, many instruments of excellent
advantage have been set on work in former
times, but to small effect, so long as wisdom
rather debated, than ri^ht determined; and
besides, for that ' nonduin tempus a boinno

* surgere :' but our ape is that * plcnitudo teui-

* poris,' tint full period of time wherein so
many working causes and inducements draw io
one conclusion of equality in happiness in
both estates, as unless we will einbasc' what
our ancestors with less advantage did improve,
disable what they did admire, reject what
they did recommend, and in a sort repel the
grace of God which knock? th at our door, we
must acknowledge, * Non fccitscDcum taliter
4 omni nationi,' That God hath not dealt thus
with every nation. For our 4 Rex pacifiruw,'
our ' Delias Britniinse gentis,' our • Leo Ku-

* bens/ (which according to Merlin's predic-
tion, wu* to held in one paw the batthments of
new Troy, in another ' Sylviuii Cuk-doniam,'
which can level in common sense at no other
prince that wielded the scepter of this state
before) hath by God's blessed providence as
well united the parts of England, Scotland and
Ireland, in one body of dominion, as the lint s
of Edgar, Fergus the conqueror, Mac Morrodi,
and Cadvvallader in one center of conjunction,
and thereby compounded out of many waters,
that ' uiargarhain pretinsam,1 for the compas-
sing whereof rather than it should escape our
hands, wc ought to purchase it at as high a
rate, as the wise merchant did that other in St.
Luke, ' qui, inveuta una pretiosi m-.irgnritn,

* ahiit, et vendidit omnia qua; hahuit, ut cmerct
' eain :' hiving found one precious fieurl ainonu
the rest, went and sold all that he possessed in
the world beside, to piirclinse it.

I resemble the rare object of the king our
master's aim, (in seeking to unite and knit, toge-
ther all his subjects affections, scopes and en-
deavours, ' oodo iudi»solubili/ to this end

cluefly, that it may not rest hereafter in the
power of flesh to sever7 what hath been con-
joined by the hand of grace) rather Margaret*
than to any other jewel of great price, because
her name was Margaret, by whom his majesty
derives his lineal descent by just title of the
Saxon kings. Her name was Margaret, that
being eldest daughter to king Henry 7, invested
in the blood of our dear sovereign king James,
the most absolutely and radically united interest
of the two renowned families of York and Lan-
caster: wherein we are to note ex ubun-
duntc, that at the point prefixed of one hun-
dred years, in which this worthy princess was
conveyed, by a lucky match for this renowned
island, to her husband James 1, her royal off-
spring James 6, our matchless sovereign, made
his happy entrance into the possession of all
these crowns with a chearful jubilee. I would
be ghid for my private comfort, and in grateful
duty to the gracious bounty of this blessed line,
(if it be lawful to intermingle * corpus opacum*
with so many glorious aspects) iii a light touch
to record and view the revolutions and fortunes
of iny own family. For as the duke of Norfolk
was a forward minister in attending this great
princess, by the wise king's direction, to the full
accomplishing of the nupiid solemnity; so Lis
heir in the third degree, by misconstruction of
h'imbic thoughts, and witty workmanship upon
weak suspicion, was drawn into the loss both of
life v.nd state, for gazing too much ujwin the
gleams of this rising glory ; mid our royal sove-
reign, the true and lawful heir of that peerless
Margaret, on whom the service did attend, re-
served by dc3tiny to restore the honour of that
lading house, which was overcast with a cloud
of scorn, and as it were to lav new earth to the
mot of that sapless tree whose leaves were
fallen, and the fairest branches withered. Of
myself on whom it hath pleased iny most gra-
cious master and dear sovereign to cast more
favour than either sub spe I could merit, or
in re I c:m u:ter, this only shad tie said in
acknowledgement of favour and admiration of
grace,

1 Ultimus hie ego sum qui quam bene, quam
1 male, nolo d'eere, qui de me judicet, alter
1 erit.*

The name of the late old countess of Lenox
was also Margaret, by whom as d:iu shier, to
the queen of Scotland, by an earl of Angus iu
a second match, the vounurr brain h of that
princely line was thoroughly incorporate into
the person of the king on his ('.itucr'* side, for a
stronger union, v u were possible, both of
blood and interest, and for a double ornament
of his royal proiftiy. M:o was no Margaret I
confess, hut a woithv Mary, that in ti.e last
descent covered ' fi-rrneiitiitu acccptuni,' the
J'':ivcn which >\\e bad receivtd by descent into
three kinudo.ii**, as ti»e discreet woman in the
gospel did iu-r mn into three lumps of dough,
till by her blessed issue, founder of our perpe-
tual quiet, they might be all thorowly and coin-
plead y leavened.

Now to draw to the conclusion, which is tht

353] STATE TRIALS, 4 Javes I.

knot of these united ends, that is that worthy
sovereign, to whom

* De nostris annis sibi Jupiter augeat annus/

That yon and your disciples, Mr. Garnet, in re-
ward of so great merit of this island, were so
hasty to blow up by your Powder-Plots into a
higher region, than that wherein his throne was
by God established, together with those very
walls, which, as I find by antient record, were
first by the holy confessor St. Edward raised, of
whose family his majesty descends, that one
king might be buried, and the chief of his race
destroyed within the compass of one monu-
ment. But howsoever Mr. Garnet was willing
to forget that this place was once sanctified for a
refuge and retreat to nil sorts of persons in dis-
tress, by his own canons ; yet God that would
not destroy Judah for his servant David's sake,
his providence in like sort purposing to conti-
nue the piety of that blessed king in this fairest
branch of his descent; the justice of that divine
majesty holding it an act of Atheism to cast

• tot Margaritas pnrcis,' so many pearls to swine,
or ' sanctum can i bus/ that which is holy to dogs,
bounded the malice of these graceless imps with-
in so narrow streiglits, as it rested not in their
power by the murder of our king to stain the
Confessor's walls with his own blood, or under
the vizard of St. Edward's profession, to extirp
the roots of St. Edward's posterity. For in
the Proverbs we are certainly assured, that
'doinus justorum permanebit/ the house or
feneration of the just shall continue : but it
fills out in a better consequence, That the
skull of faithless Percy should stand centinel
where he was once captain pioneer; and Lam-
beth should now be Catesby's horizon, that
was his arsenal : and their giddy pates are left
1 tanquam mains navis/ like the mast of a ship,
to use die prophet's phrase, to warn passengers

160(5. — in the Gunpowder Plat.

[35*

Media's sorcery.

To conclude: we may learn of the wise man,
that there can be neither wisdom, nor counsel,
leatact God. The ribs of a crazed vessel are
too weak to bruise the rock which they rush
noon. We spur asses to no purpose, when
God's Angel is ad oppontwn. Jacob having
shrunk a sinew, halted all the days of his life,
after he wrestled so long and to so little pur-
pose with God omnipotent. Men are sure to
gain no more than their own smart, that kick
against the thorn : in such attempts it is nei-
ther in him that wills, nor in him that runs, but
in God that shews mercy to those that direct
themselves according to discipline : for ' sortes
' mittuntur in sin una/ the lots are cast into the
Jap, but it is God that disposeth the lottery.
Though your purpose were all one with Ahub
and Jezabel, in seeking to cut the throat of
Kaboth for his ground : though you gave out
your hymn before this holy act as they pro-
claimed a religious fast: though you made
yourselves tick; as Ahab did, with anguish and
VOL. II.

vexation, because you could not have your
wills; yet since you could neither occidere nor
posxidcre, your luck was worse than theirs : for
by God's powerful and preventing grace, you
were thrust as well from all the means and ad-
vantages of killing whom you hated, as of pos-
sessing what you coveted. It were good there-
fore that, upon so many plain experiments, you
would confess with certain wanderers in "tho
book of Wisdom, * Lassatos esse vos,' that you
are wearied and over-laboured in these crooked
ways, and have been ever since you leaped out
of Via regia, the king's high-way, which neither
pleads to dishonour, nor ends in misery. Nor-
thing is more proper materir, to matter,
thau to flow, say the philosophers, ' nisi a for-
' ma sistitur/ unless it be stayed and fixed by
the form; nor any thing more proper to huma-
nity, (according to the rule of truth) than to
err, if grace direct it not. Mahomet confesseth
in his Alcoran, that the throne of Christ was
raised by patience, his by revenge ; that by
miracle, his by tyranny. The modesty and
piety of Christians afflicted for the point of
conscience in the time of Tertullian, appears
by the reason which he gives of their absti-
nence ' a suftbeato et sanguine,' that is, * ne

* quo sanguine contaminarentur, vel intra vis-
' ccra sepulto;' that they might admit no pol-
lution by blood, though it were buried within
their bowels.

Pardon me, Mr. Garnet, though I doubt
whether in the point of conscience, alone, you
would voluntarily and resolutely abide the saw
of Esay, the bolts of Jeremy, the gibbet of
Peter, the sword of James, or the stoning of
St. Stephen, much less make a gathering among
those of your profession, towards the preparing
of an humble sacrifice for the life of Nebuchad-
nezzar (as you esteem the king), that with tho
rage of a tiger sought his life, and waxed thus
impatient of that soft and easy hand, which it
pleased him in his gracious compassion ami
tenderness, before the late intended tragedy,
to hold over you ; so diat with Seneca you
might justly say, ' Nihil fodicilati racae deerat,

* nisi moderatio ejus/ Those golden comforts
of the prophets to contrite offenders, ought at
this time to be of greater estimation and value
in your thoughts, than all the treasures of the
Vatican. You cannot steer the ship of your
crazed conscience more safely in this sharp
storm, which hath been raised by yourselves,
than by the council of Lactantius, which
doth warrant, that to minds truly penitent,
1 Optimus portus est mutatio consiiii/ change
of resolution is the best haven and safest har-
bour. After an humble acknowledgment of a
grievous sin * in fratres vestro*/ against your
brethren, with the sons of Jacob, nnd uithal,
that for this cause chiefly tribulation hath ta-
ken hold of your highest top ; first, yield un-
feigned thanks to Almighty God for preventing
this destructive project, that would have cast
so great a weight of judgment upon your soul,
and for turning your ill purpose to his honour :
then thank your merciful and teuder-hev

2 a

3 j 3]

STATE TRIALS-, 4 James I. 1(50(5 Trial qf Henry Garnet.

[$56

king, who seeks not to surprize you suddenly,
as Levi did Sidieuv, * Quando dolor ruincrum
' erat gravissimus ;' as you would have dealt
with him ; and to assault you in- the greatest
horror and the shurpest torture of your crying
sin ; but by imitation of that eternal object
whose person he represents, whose example he
regards-, agreeably to that record in the book
of Wisdom, ' Dat tempus et locum per qua
' potcstis mutari a malitia,' pves tune and place
by which you may be changed from your ma-
lice: crave pardon of the world, for leaving
such a precedent to future times, of a possibi-
lity to achieve so desperate an act, which may
perchance, according to the dispositions and
humours of men diversly affected as well admo-
ncre as prohibcrc, that is, put the world in mind
that such a matter may be, as forbid that it be
not.

Remember the difference which Theodbret
doth discreetly put, between suifering and the
cause of suffering, between torture to force
conscience, and legal punishments to chastise
faults. To conclude my last caution with your
last occasion^

4 Discite justitiam, moniti, et nun temnere
Divos :'

Because, ' H«c vos sapere vel mori jubent;'
and withal, a4 Martial did for Trajan, wish to
the best of majesty, to whom you meant the
worst of malice,

* Dii tibi dent quicquid, princeps Auguste,
meYeris,'

' Et rata perpetuo, quae tribuere, velint.9

Then the Lord Chief Justice making a pithy
preamble of all the apparent Proofs and Pre-
sumptions of his guiltiness, gave Judgment,
that he should be drawn, hanged and quartered.

And my Lord of Salisbury demanded, if Gar-
net would say any thing else?

Garnet answered, No, my lord ; but I hum-
bly desire your lordships ull to commend my
life to the king's majesty ; saying, That at his
pleasure he was ready either to die or live, and
do him service.

And so the Court arose.

Garnet's Execution.

On the 3d of May, Garnet, according to his
Judgment, was executed upon a scaffold, set
up for that purpose at the West-end of St.
Paul*, church. At his arise up the scaffold,
he stood much amazed, fear and guiltiness ap-
pearing in his face. The Deans of Paul's and
Winchester being present, very gravely and
christianly exhorted him to a true and * lively
faith to God-ward, a free and plain acknow-
ledgment to the world of his oifence; and if
any further treason lay in lus knowledge, to
u:.burden his conscience, and shew a sorrow
and detestation of it • but Garnet, impatient
of persuasions, and ill-pleased to be exhorted
by them, desired them not to trouble -hini, lie
came prepared and was resolved. Then the
Recorder of 'London, who was by his majesty
appointed to be there, asked Garnet if he bad

any thing f^o say unto the people before he
died : it was no time to dissemble, and now his
treasons were too manifest to be dissembled ;
therefore, if he would, the world should witness
what at last he censured of himself, and of his
fact ; it should be free to him to speak what
he hsted. But Garnet, unwilling to take the
offer, said, His voice was low, his strength
gone, the people could not hear him, though
he spake to them ; but to those about him on
the scaffold, he said, The intention was wicked,
and the fact would have been cruel, and from
his soul he should have abhorred it had it been
effected : but he said, He had only a general
knowledge of it by Mr. Catesby, which in that
he disclosed not, nor used means to prevent
it, herein he had offended ; what he knew in
particulars was in confession, as he said. But
the Recorder wished him to be remembered,
that the king's majesty had under his hand-
writing these four points amongst others: 1.
That Greenway told him of this, uot as a fault,
but as a thing which he had intelligence of,
and told it him by way of consultation. 2. That
Catesby and Greenway came together to him
to be resolved. 3. That Mr. Tesmond and be
had conference of the particulars of the Powder
Treason in Essex long after. 4. Greenway had
asked him who should be the Protector ? but
Garnet said, That was to be referred till the
blow was past. These prove your privity be-
sides Confession, and these are extant under
your hand.. Garnet answered, Whatsoever was
under his hand was true. And for that he dis-
closed not to his majesty the things he knew,
he confessed himself justly condemned; and
for this did ask forgiveness of his majesty.
Hereupon the Recorder led him to the scaffold
to make his Confession publick.

Then Garnet said, ' Good couUrymen, I am
come hither this blessed day of The Invention
of the Holy Cross, to end all my crosses in tins
life : the cause of my suffering is not unknown
to you ; I confess 1 have offended the king, and
am sorry for it, so far as I was guilty, which
was in concealing it ; and fur that I ask pardon
of his majesty. The Treason intended against
the king and state was Moody, myself should
have detested it, had it taken effect. And I
am heartily sorry that any Catholicks ever had
so cruel a design/ Then turning himself from
the people to them about h:*n, he made an
apology for Mrs. Anne Vaux, saying, ' There
is such an honourable gentlewoman who bath
been much wronged in report: for it is suspected
and said, that I should be married to her, or
worse. But I protest the contrary : she is a
virtuous gentlewoman, and for me a perfect
pure virgin. For the pope's breves, sir Ed-
mund Bay nam's going over seas, and the mat-
ter of the Powder-Treason, he referred lumself
to his Arraignment, and his Confessions^: for
whatsoever is under my hand in any of my
Confessions, said he, is true/

Then addressing himself to execution, he
kneeled at the ladder-foot, and asked if he might
have time to pray, and how long. It was an-

357] STATE TRIALS, 5 James I. ) C07.— The Trial of Robert Drewrie. [353

swered, He shouM limit himself, none should
interrupt him. It appeared he could not con-
stantly or devoutly pray ; fear of death, or hope
of pardon, even then so distracted him : for oft
in those prayers he would break off, turn and
look about him, and answered to what he over-
heard, while he seemed to be praying. \Y hen
he stood up, the Recorder finding in his beha-
viour as it were an expectation of a Pardon,
wished him not to deceive himself, nor beguile
his own soul; he was come to die, and must
die ; requiring him not to equivocate with his
last breath; if he knew anything that might
be danger to the king or state, he should now
utter it. Garnet said, It is no time now to
equivocate: how it was lawful, and when, he
had shewed bis mind elsewhere: but, saith he,
I do not now equivocate, and -more than I have
confessed I do not know. At his ascending up
the ladder he desired to have warning before he
was turned off. But it was told him, he must
look for no other turn but death. Being upon
the gibbet, he used these words : ' I commend
* roe to all good Catholicks, and I pray God
1 preserve his majesty, the queen, and all their
4 posterity, and my lords of the privy council,
4 to whom I remember my humble duty, and I

' am sorry that I did dissemble with them : But
' I did not think they had such proof against
' me, till it was *>hev*ed me ; but when that was
x proved^ I lield it more honour for me at that
' time to confess, than hefoieto have accused.
' And fur my brother Greenway, I would the
'truth were known; lor the fal>e reports that

* are, make him more faulty than he is. I
' should not. have charged him, but that I
' thought he had been safe. I pray God the
' catholicks 'may nqt fare the werse for my
' sake ; nnd I exhort them all to take heed they

* enter not into any treasons, rebellions, or in-
' surrections against the king/ And with this
ended speaking, and fell to praying ; and
crossing himself, said, ' In nomine Patris et Fi-
' hi, et Spiritus Sancti;' and prayed, 'Maria
' mater gratia?, Maria mater misericordis, tu
( me a nmlo protege, et horn mortis suscipe.'
Then, ' In manus tuas, Domine, comraendo
' spiritum meuin :' Then, ' Per crucis hoc sie-
' num' (crossing himsell ) * Tiigiat |>rocul Jinne
' malign um. lnfige crucem tuam in corde meo,
1 Domine ;* Let me always remember the cross :
and so he returned again to ' Maria mater
' gratia?/ and then Was turned off, and hung till
he was dead.

82. A true Report of the Arraignment, Tryall,. Conviction, and
Condemnation, of a Popish Priest, named Robftit Drewrte*
at the Sessions-house in the Old Ba) Tie, on Friday and Wed-
nesday, the 20th and 24th of February ; the extraordinary
great Grace and Mercie offered him, and his stubborne, trai-
torous, and wilfull Refusall. Also the Tryall" and Death of
Humphrey Lloyd, for maliciouslie Murdering one of the
Guard. And, lastly, the Execution of the said Robert Drkw-
rie, drawn in his Priestly Habit, and as he was a Benedictine
Fryer, on Thursday following to Tiborne, where he was hanged
and quartered. London; printed for Ieiferi? Chorlton, and
are to be sold at his Shop adioyning to the great North Door
of Paules, a. d. mdcvii. [3 Harl. Misc. 36.] 5 Ja. I. 1607.

IN a case deseruing so well to be spoken off,
concerning iniury to God's glory, and apparent
wrong of our countrey, ouer-run with too
■any men of such daungerous quality, I

* Tb» Article, though but unsatisfactory
and indistinct, has yet been thought worthy of
iatertion, because it records a transaction curi-
ous in itself, and interesting from its connection
with the history of the period during which it
occurred. It is proper to mention, that this
Drewrie was one of thirteen Priests who a
little before the death of queen Elizabeth had
signed the following Declaration :

TmiSicul** Priest's Loyal Paotestation.

u WxtasAS it hath pleased our dread sove-
reign to take notioe of the faith and loyalty

thought it the duty of an honest subiccr, to say
somewhat, so farre as truth would warrant me,
because slaunder and detraction are no meant
enemies to such maner of proceedings.

of us her natural-born subjects, Secular Priests,
and of her princely clemency hath given a
sufficient earnest of some merciful favour to-
wards us, being all subject by the laws of the
realm to death, by our return into our country
after our taking the order of priest-hood, since
the first year of her majesty's reign ; and only
demandeth of us for this intended favour, an
assurance of the said fidelity uhto her majesty's
person, crown, estate and dignity. We whose
names arc under- written, in most humble-wise
prostrate at her majesty's feet, do acknowledge
ourselves infinitely bound unto her majesty

359]

STATE TRIALS, 5 James I. 1007.— Trial of Robert Drewrie,

[SGO

Robert Drewrie being apprehended by his
maiesties messengers at the White-Fryers, aud
afterward brought before the right reverend
father in God, the lord bishop of London ; de- a
clared hiinselfe there, as Garnet, his niaister,
had done before, ' Muitoruin noininum,' to be
a man of many name**, but yet no one of them
being good. For, as no lesse thnn sixe several!
names would serve Garnets turne, so this man
had three to shadow him by, viz. Drewrie,
Browne, and Ifamden, but Drewrie was the
last in his owne dcliuering, and appearing to be
his true name indeede. — His aunswers were
equivocal! aud very confused, denying his
priest hoode, and seeming so cunning, as if no
hold were to be taken of bin. But he being
better known to the state then himself imagin-
ed, and his many daungerous practises suiiici-

therefore; and are most willing to gi\e such
assurance and satisfaction in this point as any
Catholick priests can give unto (heir sovereign.

" First, Therefore we acknowledge and con-
fess the queeu*s majesty to have a< full au-
thority, power and sovereignty over us, arid
oyer all the subjects of ijkf'reulm, as any of
her highncss's predecessors ever had. And far-
ther, we protest that we arc most willing and
ready to ol>ey her in all cases and respects,
lis far forth as ever Christian priests within this
realm, or in any other Christian country, were
bound by the law of God, ;\.»d Christian reli-
gion, to obey their temporal princes.

" Secondly, Whereas for these many years
past, divers conspiracies against her majesty's
person and estate, and sune forcible attempts
for invading and conquering her dominions,
have been made under wo know not what pre-
tences and intendments of restoring Catholick
Religion by the sword ; (a course most strange
in the world, and undertaken peculiarly and
s.dely against her majesty and her kingdoms,
among other princes departed from the religion
nnd obedience of the Sec ApoMolick no less
than she) by reason of which violent enter-
prizes her majesty, otherwise of singular cle-
mency towards her subjects, hath been greatly
moved to ordain and execute severer laws
against Catholicks, which by reason of their
communion with the See Apostolick in faith
and religion, were easily supposed to favour
these conspiracies and invasions, than per-
haps had r\ er been enacted or thought upon,
if such hostilities and wars had never ocen un-
dertaken. We, to assure her majesty of our
faithful loyally also in this particular case, siu-
c-rely protest, and by this our puhhek fact
make known to all the" Christian woild, that in
these cases of conspiracies and invasions which
hert after m:»v be made l.v ;mt lorcijin prince
or potentate for the disturbance and subversion
of her majt My's st;,tc ami dominions, under the
aforesaid pr: >!..vs and iute.sdineiits ; we will
according t» the mies of Chilian religion, de-
fend our prince and country from all these vio-
lent assaults aud injuries, And moreover, we
will not only ourselves resist ihvm, as inconve-

ently discouered and scanned ; after such pri-
uate examinations us were thought convenient,
time was appointed for his publique tryall,
which followed as hereafter shall be declared.

On Friday, being the 20th day of February,
in the forenoon e, my lofd mayor, roaister re-
corder, and other of his maiesties justices of
the peace, sitting at the Sessions-House in the
Old-Baily, by vertuc of his highnesse commis-
sion of Oyer and Terminer, for goale deliuerie,
for London, and the county of "Middlesex :
Robert Drewrie* priest, and afryer of the Bene-
dictine order, was brought before the bench.
His emlitcment, according to forme, of lawe in
that case tirade and prouided, was openly read
vnto him ; wheieuuto he pleaded, Not Guilty,
bur, for his tryall, did put hiinselfe vpon God
and his country. Then was a verie sufficient

nient means to introduce Catholick Religion
into our country, but also earnestly per* wade
Lay-Cat hoi icks to do the same.

" Thirdly, If upon any such invasions the
pope should excommunicate every one that
would not forsake the foresaid defence of her
majesty and the realm, and take part with such
conspirators and invaders; in this case we
do think ourselves and the Lay-Catholicks not
bound in conscience to obey tins censure, but
will defend our prince and country. — And lie-
cause nothing is more certain than that whilst
we endeavour to assure her majesty of our du-
tiful affection and allegiai.ee by this our Chris-
tian and sincere protestation ; there will not
want those who will condemn and misconstrue
our lawful fact : Yea, and by many sinister
suggestions aud culumuit •» discredit our doings
with the ( 'hristiun world, but cbieflv with the

f>ope*s holincs«, to the greatest prejudice aud
lurm of our good name? and persons that may
be, unless we maturely prevent their malice
herein. We most humbly beseech her majesty,
th;it in this our rcco£iii/m«!, and yielding Cae-
sar's due unto her, we may also by her gracious
lcu\c be permitted, for avoiding obloquy and
calumnies, to make known by like publick act,
that by yielding htr rijht unto her, we depart
from no bond of that. Christian duty which we
owe to our supreme spiritualPastor. — And there-
fore we acknowledge aud confess the bishop of
Rome to be the successor of St. Peter in that
See ; and to have as ample, and no more au-
thority or jurisdiction over us and o»her Chris-
tians, than had that apostle by the gift and
commission (»( Christ our Saviour. And that
we will obey him so far forth as we are bound
by the laws of God t<» do, and may stand with
performance of our duty to our temporal prince,
in such sort as we have before professed : For
as we are most ready to spend our blood io
dell .ice of her majesty and our emmtrv, so will
we rather lose our lives than infringe the au-
thority of Christ's Catholick Church." 2 Coll.
Ecrl.Ilist. 601, 3 llarl. Misc. 37.

This paper, savs bishop Bancroft under his
own hand, was delivered to ine by tlie priests.
Ex Biblioth. R. Irarlcy Arinig.

361]

STATE TRIALS, 5 James I. 1607 — a Priest, for Tnasan.

[362

Iurie impannelled for him ; to whom, in effect,
these speeches were deliuered.

Hubert Drewrie, the prisoner, standing at
the bar re, had traitorously, wilfully, and in
contempt of the statute made to the contrarie,
departed out of this land, wherein he was
borne, and at Vr a led olid in Spayne, where by
Parsons means,- a seminary for English students
was erected, as the like were at Rome and
Rheiues, hadde bin made a prieste by the bi-
shop of Leon, by authority deriued from the
pope. Sitheuce which time, he had returned
back into this lanct to reconcile, seduce, and
withdraw his maiesties subiectes from their na-
turall dutie, loue, and allegeance, to a forraigne
leruice and obedience.

. Hailing libertie graunted to speake, and aun-
swere for himselfe what be could, Robert
Drewrie very shallowly sought to insinuate,
that, if it were treason in him to be a priest,
theo it was the like in saint Augustine, saint
Bernard, and other reuerend fathers of the
church, who receiued 'their priesthoode by au-
thority from God ; and so did he presume to
bane doone the like, for the saluation of his
owne soule, and many others beside ; which
purposely he came hether to do, according to
his ofiice and function. His sillie suggestion
was presently reprooued, that, notwithstanding
the great difference beetweeiie his priesthoode,
and that of the fathers before named, yet priest-
hoode solie was not imputed to him for treason :
for that profession, though neither liked, nor
allowed by vs, he might vse and exercise in the
parts beyond the seas, keeping himselfe there ;
but not hecre within his maiesties kingdome,
where, both be, and all other of his ranke, did
very well know, and therefore could not plead
any ignorance therein, that sundry good and
Mimcient lawes, heeretofore made, had enacted
it to be treason, for any subiect borne to forsake
his natiue dutie, and, being made priest by au-
thority deriued from the pope, to com home
•gain into this land, and, in meere contempt of
the king and his lawes, to reconcile, seduce,
tud alienate lovall subiects harts from loue,
lost regard, and dutie to their soueruigne, and
nibiecting them in obedience to a forraigne go-
vernment. Drewrie made aunswere, be could
not, neither would he deny, but that be came
hether to exercise the office of a priest, accord-
ing as he had alreadie doone, in winning of
fniles ; but he would not admit, that he had
seduced any, or in any sort diswaded them,
but only for the good of their soules. Being
afterward vrged with his maiesties great mercy,
*ho had, to him and all other of his coat'e,
granted his generall pardon ; and why he did
not, according to the proclamation, depart the
land, when it was so expresly comrnaunded ?
He made aunswere, That be wanted means :
When it was prooued to him, that not only did
the king allow such conuenient transporting,
hot also enabled them with raony ; and there-
fore his stay could not be otherwise, but meere-
K in traytorom contempt of the kings lawes :
W hereto h* could make no reply.

Then diuers traitorous and dangerous papers
were shewen, which had bin taken in his cus-
tody, and whereof he would gladly haue ac-
quitted himselfe, but that they were manifestly
prooued to be his. One of them seemed to be
Parsons opinion concerning the oath in the
late made statute, which lie vtterly disallowed
any catholique to take, appearing to haue vsed
the popes censure therein; whereupon the
bull, or brccfe, to that purpose, sec met h to
take effect. — The others were also of a tray-
torous nature* tending to the abuse and cor-
rupting of poorc sirapfe soules, and stealing all
duty and allegeance from them. There were
likewise two Letters openly read, the one from
certaine priestes, prisoners sometimes in the
Clinke, to the arch-priest, maister Black we II,
requiring bis iudgement in matters, when they
laboured and hoped for tolleration in religion :
The other was maister Blackwells aunswere
therto ; both which though he would haue
cunningly auoyded, yet it appeared what reck-
oning he made of them.

When he had aunswered for himselfe so much
as he could, relying still vpon his priesthoode,
and vrging that to be the cheefest matter of his
offence, though many times the contrary was
deliuered to him, the lurie passed vppon him,
and foundehim Guilty of high-treason, where*
vpon be was sent away til the time of iudge-
ment ; which because it was not til Wednes-
day following, it shall not be much differing
from our purpose to handle, and say somewhat,
in the mean while, concerning the tryall and
conuiction of Humphrey Lloyd, endicted there
vpon wilfull murder, hauing slaine master Tho- -
mas Morris, one of the ordinary yeomen of his
maiesties guarde, not long before, in Chaun-
ccry-lane.

Upon Sunday in the aftcrnoone, being the
18th of January, the forenaincd Humphrey
Lloyd and Thomas Morris meeting together in
Aldersgate-streete, in the conij>unie ot certaine
other of theyr friendes, went into the Haifa
Moone tauerne to drink, where they had no such
plenty of wine, as to cause distemper, or other-
wise, that way, to procure impatience. — But it
was deliuered in euidence, that some speeches
concerning religion passed betweene them ;
wherein Morris touched Lloyd to be a dissem-
bler, as neither hot nor cold, biit, if any thing
at all, it was, indeede, best affected to popery,
as afterwarde it plainely appeared. It hapnea,
that the lie was retorted between them, which
vrged Morris to cast a cuppe of wine in Lloyds
face, and Lloyd therrvpon tiircwe a rowle of
bread at the head of Morris. A further and
more dangerous strife hud presently ensued,
but that honest friendes on both sides, being
present, did so discreetely deale with them,
that they grew friendes a^ainc, drank to one
another, and no hart-binning outwardly per-
ceim-d ; till at length, Uoyde renewing remem-
brance of the former speeches, a more heauier
falling out had thereon hapned, but that the
friendes, as before, pacified them again ; but
yet menacing words passed from eyther, Mor-

303]

STATE TRIALS, b James I. 1 6()7. — Trial of Robert Dravric,

[301

ris threatning to bee euen with Lloyds bald
pate, and Lloyde woulde try acquittance with
the others cods-heade; so that they parted
with teaimes of enmity.

On the Wednesday next ensuing, Lloyd and
a gentleman, in a white coloured cloake,- stand-
ing talking together at Lin coins Inn Gate, it
hapned Morris and a friende of hvs with hun
to passe by ; the friende saluted Lloyd, as
Lloyd did the like by him ; and uery soone
after, the gentleman in the white cloake, that
had stoode talking with Lloyd being sent by
him, as it appeared, followed Morris, as Lloyd
likewise, and, rounding him in the en re, which
the friende then with Morris could not. heare,
hee perceiued an alteration in the countenance
of Morris, and the like iu Lloyd, who by this
time was come to them ; « hich he being desir-
ous to remooue, as standing an equal I friende
to them both, desired them, if any t hinge
were amis^e betweene them, to let him per-
ewade a friendly agreement, and not to grow
into any vnciuill behauiour in the open street,
to the wounding of their crcditeand reputation,
as also, whac danger might otherwise ensue,
was doubtful to be gathered. Lloyd made aun-
swere, that he was good friend es with his cozen
Morris, and loued him as deerly as any in Eng-
land. Whereto Morris instantly replied, Wilt
thou neuer leaue thy dissembling ? X)ost thou
pretend to loue me so deerely, and hast euen
now sent me a challenge by this man ? Lloyd
immediately returned him this aunswere : that,
if he hadde sent him a challenge, he was come
in person to aunswere it, and would performe
it there, or any where els. Thus his malicious
intent very plain ely appeared. What other
words passsed betweene them, I know not,
neither could they bee heard by any standers
by ; but forthwith they drewe out both thcyr
Weapons, notwithstanding all in treaty to the
contrary : and indeede Lloyd did drawe to
soone, to e$presse his* bloody and vnquenche-
able malice, for he soon gaue to Morris his
deaths wound, wherevpon he fell downe pre-
sently, not speaking one word. — And, to wit-
nesse the more bis cruell and bloodie hatred,
he strake twice or thrice at him, when he was
downe, cutting fym ouer the head, and other-
wise wounding him ; yet he pleaded, that he
did all this but in hys own defence. — All this,
which hath bin breefelie reported, being much
more circumstantially deliuered in euidence,
and by oath approued to his face, he sought to
extenuate his offence by verie shallow speeches,
vtterly impertinent, and most against himsclfe,
in due consideration of his friuolous allegations:
for he had bin a man of more dangerous qua-
lity, then was conceiued in his present tryall,
hauing tasted the kings most gracious mercy,
and had beene borne withall beyond his deseru-
ing. — It was also told him, how farre he had
waded in Watsons treason, and was also a par-
taker in the Gunne-powder Plotte, sending
•hot, and powder also, to them in Wales ; in
all which the mercie of his maiesty had looked
more nildly rpon him, then himself* coulde

desire, or any way deserue. But the justice of
heauen very manifestly appeared, that so false
and hollow a hart, sullied with the detested
guilt of treason, must now, in a wilful and ma-
licious act of blood and murder, declare itselfe
to the whole worlde, and the vpright censure
oflawe this way depriue him of life, that had
felte mercie before, in a heauier offence. Here
is also to be noted, that, as the quarrel first
hapned on talk of the popish religion, so now
Lloyd discouers him in his colours. For, though
it was told him, that he had very confidently
deliuered himselfe to be otherwise, and which
himsclfe was not able to denye ; yet nowe
Drewrie the prieste (after his iudgemeut) pass-
ing away by him in the docket, gaue him a
publicke noted absolution, with his hnqd cross-
ing him, and vsing some close speeches ; where-
upon, thinking this sufficient to wash off ins
s.'avne of murder, he forthwith openly confesr,
that he is a Cutholicke, so he had bin alwayes,
and so he woulde die ; as if that very name
should giue fame to his foul fact, and, v» here
he died u murderer, his owne ydlc supposition
of Popish absolution should make him nowe
to die in the case of a martyr, and for his con-
science.

When he was drawne in the carte (with
others) toward execution, and nil the cartes
beeing stayed before St. Sepulchers church,
where the most christian and charitable deed of
Muster Dooue, at euery such time, is worthily
performed, to inoue prayer and compassion in
mens harts, for such so distressed : all the while
that the man spake, Lloyd stopte his eares,
not willing to heare any thing ; but, if any
Rorrraine Catholickes were neere, he desired
such to pray for him. And so at Tyborne he
did' in like manner, calling to Romaine Catho-
lickes to praye w.th him and for him, but no
other prayers would he accept of. But, the
la we hauing censured him, and justice likewise
beeing past vpon him, what else remain es to be
thought, or said of him, let it be so charitably,
as such a case rcquireth, and as becornineth all
honest Christians, euermore remembring, that
flesh and blood is subject to frailty, and he,
that boasteth most of strength, maye soonest
fall and be deceiued : therefore let vs measure
other mens infirmities by a considerate care of
what our owne maye be, and, committing all to
him that is the onely iudge of all, desire his
heauenly help and assistance neuer to suffer vs
to be led into the like temtations. Let va
nowe remember where we lefte before, and
returne to the matter concerning the priest. —
In this time of respit since his condemnation,
bethinking himselfe, belike, of his present dan-
gerous condition, he solicited sundry great per-
sons by his letters, entreating all possible
fauour to bee allowed him. Among trie rest,
he wrote to sir Henry Mountague, recorder of
London, requiring to haue some priuate speech
with him. The gentleman, being of a milde
and mercifull inclination, willing to do good to
any, but much more to ooe at the point of
such perill, vpon Mooday morning, tent for

m]

STATE TRIALS, 5 James L 1607.— a Priest, for Treason.

Drewrie downe into the sessions-bouse garden
to him ; where vrging to know what fauour he
requested, and alleagmg the kings great and
gracious mercy to any that expressed them-
sclues to be his louing subjects, and would take
the oath of duty and obedience to hiiu, Drew-
rie made voluntary tender of himselfe, that he
would take the oath, acknowledging the great-
ncs of his maiesties mercy ; and humbly re-
quired, that the like grace might bee afFoorded
to his brother, William Dauies, the other priest,
that was condemned with liim. Maister Re-
corder concerned very well of this his submis-
sion, and was in his minde perswaded, that, if
he had put him to the oath presently, without
any refusall he would haue taken it. But he,
as an vpright iusticer, very wisely considering,
that, his fact being openly knowne, and the
people acquainted with his dangerous practises,
Lis publike submission, and taking the oath,
would the better witnesse his obedience and
submission, and proue much more pleasing
then any thing done in priuate, deferred it till
the time of more conucniency ; so Drewrie de-
parted vppe to his chamber again, being vsed
with all kind and gentle respect.

The extraordinary great Grace and Mercy,
offered at the Sessions- house to Robert Drexc-
rU and William Davies, Priest es, on
Wednesday, the. 25th of February ,\ and,
lastly, the Sentence of Death pronounced
against them.

According to the custome in such cases ob-
serued, the tryall and condemnation of Robert
Drewrie passing, as hath beene already de-
dared, on the Fryday before ; on Wednesday
following, being the iiue and twentieth day of
February, the prisoner was brought to the barre
againe ; where it being tolde hiin, that he had
been already arraigned vpon high-treason, and
bad pleaded thereto, Not guilty, but, fur his
tryaU, had put hitnselfevpon God and his coun-
trey, the countrey had found and dcliuered him
vppe Guilty ; it now remained to hear what he
could say lor himselfe, why Iudgement of Death
should not be pronounced against him. — He re-
plied, as he had done before, that be took him-
selfe not to be conuicted of treason, but onely
for his priestrhoodc ; which if the law made
treason, he had nothing to say, but appealed
to the kinges grace and mercy.

Ueereupon, his voluntarie offer, to take oath
on the Monday before, was rehearsed to him.
And it was further tolde him, that now it was
apparently perceiued, how collorably he cloaked
his priuate and pernicious dealing, answering
by equiuocation, and setting downe one thing
tnder his owne hand, then afterward speaking
dvrectly against the same. For proofe whereof,
his owne letter, written sithence the time of his
condemnation, to a person of great honor, was
there read; and as much thereof, as concerned
the present occasion then in hand, was the
mire insisted vpon. Wherin (if my memory
bile me not) it appeared, that he had bin re-
auyred to set downe his censure and opinion,

[36(3

according as himselfe did best gather and con-
ceiue therof, concerning the oath of legally and
allegiance mentioned in the late statute ;
n hereunto (as I remember) his an s were waa
thus : ' I freelye confesse, that (in my opinion)
cuery honest and good Catholicke may lawfully
and safely take it/ Immediately, because he
had made such a free confession of the oathes
lawfulnes, and safety in taking, himselfe was
willed to take the oath, which he had thus cen-
sured, to let the world perceiue now publickly,
whether his hand and hart* held true corres-
pondence together, and whether he were so
honest and good a Catholicke, as hut to ex-
presse the loyally 6f a subject, and give Csesar
his due. Now plainly appeared, both what he
and such of his profession inwardly are, for he
plainly refused to take • the oath : hauing the
Booke deliuered into his owne hands, and
willed to take, and alledge what exceptions he
colde against any part or particle of the oath,
bis answero was, that he did but deliuer his
opinion of the oath, what any good or honest
Catholicke might do, excluding himselfe ol-
of any such titles. * Neither (quoth he) can it
be any wayc aduantageable to me, being con-
demned as I, am, and therefore I haue no rea-
son to take it.' But then, to meet Justly with
such cuning dissembling and equiuocating, and
to discouer such apparant falshood, that no less
admired, then most worthy gentleman, sir
Henry Mouutague, knight, recorder of the cittie
of London, as he had many times before, so
still he continued, in displaying the subtil
slights of so dangerous a person, and what hurt
ensued to the state by such as he was. To
driue him nowe from these ydle suggestions,
and to lay open the kings most royall mercy,
though not so much as in truth it deserued, yet
sufficiently able to conuince such impudence,
he told him, that he was a poore minister of
iustice vnder his maiesty, and hadde such true
acquaintance with his euer-royail and mercifull
inclination), that harty sorrow, or repentance,
in an offender, no sooner colde be discerned,
but he was eucn as readic to giue pardon and
ibrgiuenes, and rather did superabound in grace,
then seeke alter blood ; and therefore willed
him to let all the people there perceiue, whe-
ther he would accept of this proffered grace,
or no. Nay, more ; because euery one waa
not acquainted with the oath contained in the
statute, and (perchance) might conceite other-
wise thereof, then in equity it deserued, the
clcarke was comuiaunded to read it there pub-
lickly, and himselfe to except against it what-
soeuer he could alledge. The clearke accord*
ingly began, as follow cth, reading it destinctly,
as u is in the booke.

The Oai n of eucry true and honest Subicct.

" I A. B. do tiuely and sincerely acknowledge,
professe, testifie, and declare in my conscience,
beefore God and the worlde, that our soue-
rafgne Wde king Jume* is law lull and rightfull
king of this real me, and of all other hi* inaies-
ties dominions and countries: Aud that the

367]

STATE TRIALS, 5 James I. J 607 Trial of Robat Drcjiiie,

[36S

pope, neither of himselfe, nor by any authority
of the church or see of J Lome, or by any
other meants, with any other, hath any
power or authority to depose the king, or to
dispose of any of his maiesties kiugdomes
or dominions: or to authorize any forraigne
prince to inuiufe or anov him, or his countries ;
or to discharge any ot his subiectes of their
allegiance and obedience to his maiesty : or to
giue licence, or leaue, to any of them to beare
armes, raise tumult, or to offer violence or
hurte to his majesties royal 1 person, state, or
gouerament, or to any of his maiesties subiectes
within his majesties dominions. — Also I do
tweare from my hart, that, nut withstanding any
declaration, or sentence of excommunication,
or depriuation, made or graunted, or to be
made or graunted, by the pope or his successors,
or by any authority deriucd, or pretended to
bee dcriued, from him or his see, agaiuste the
•aid king, his he ires or succe>sors; or any ab-
solution of the saide subiectes from their obedi-
ence. I will bcare faith and true allegiance to
his maiestie, hi? heires, and successors; and
him and them will defende, to the vttermost of
my power, against al conspiracies and attempts
whatsoeuer, which shal be made against his or
their persons, their crown and dignity, by rea-
son or colour of anie such sentence or declara-
tion, or otherwise; and will doe my best in-
deoour to disclose and make knowne vnto his
maiesty, his heires and successors, all treasons
and traiterous conspiracies, which I shall know,
or hear of, to be against him, or any of them. —
And I doe further sweare, that I doe fioru my
hart abhorre, detest, and abiure, as impious
and heretical, this damnable doctrine and posi-
tion, that prince, which be excommunicated or
depriued by the pope, may he deposed or mur-
dered by their subjects, or anie other whatso-
euer. — And I do belieue, ami in conscience am
resolued, that neither the pope, nor any person
whatsoeuer, hath power to absolue me of this
oath, or any parte thereof, which I acknowledge
by good and faithfull authority to be lawfully
mimstrcd to ine, and do renounce all pardon*
and dispensations to the contrary. And al
thi'se thin lis I do plainly and sincerely acknow-
ledge and swearc, according to these cxprcsse
wordes by me spoken, and according to the
plainc and common sence, and understanding
to the same words, without equivocation, or
mental euasion, or secret rescruation whatso-
euer. And I do make this recognition and
acknowledgment heartily, willingly and truly,
vpon the true faith of a Christian. So heip
me God."

Tins Oath, which no pood subinct will refu«c
to take, hawing bcene very audibly read, well
neiire in the perfect hearing of cuery one there
present, he was required to allead^c or interre
against any part thereof what he colde. Hut
he insist in i; vainelv, as he had done before, that
he hud but giucn hi* opinion thereof for others,
and refusing vtterly to take it himself, gaue eai-
dent and manifest testimony, that such priestes,
as himselle was, were not included in the ranke

of honest or good Cuthohcke?, b-t a pp a rant
travtors to the kins and state, in saii;i£ one
thing, and dooing the contrary; in making an
outward shew of duty and obedience under
hnnd-writiiiL', and reseruing a trawerous inten-
tion in their close bosouic- ; wherein the grr»a?e
decerning and abusing of too jimhv micr-credu-
Ioiis soules, being falsely persuaded of such men,
otherwise then they aie indeed e, is very much
to be pitted and lamented : for iliey do but
judge by tiie exteriour liabit of smooth sanctitie
and holines, and not by the close seducing of
them and their soules. lielijinn is thecloake cast
ouer intended treason, and holy protestations
hide hollow -harted practises, more deuillish then
(in plaine meaning) ean easily be doubted, and
far more daungerous, then weake capacities are
able to disco tier, as, very excellently and ele-
gantly, was there plaincly approued.

Another allegation also (as impertinent) did
Drcwrie make, in saying : That a French pricsr,
or Spanish priest, comming into this land to
exercise their function at either of their lord
ambassadors, or otherwise, they might, in like
manner, be tearmed tray tors : whereas all the
by-stan ders were eueo readv to hisse him,
knowing very well, and, as It was with good
discretion, answered him, that such priestes
neither were or colde be reckoned subiects to
this state, nor were thev enabled to deal in such
daungerous manner with our people, wanting
our language, and credit, in such a case to
countenance them, as (by their she insinuating)
they being borne subiects, and credited more
than beseemed, did too much preuaile by.
And as freely might such ambassadours haue
men of spiritual office about them, being of
their owne countrey, as ours arc allowed the
like, within their inaistcrs dominions. So that
still he wolde haue maintained that priesthoode,
and not the treacherous completing and prac-
tises of priestes, in his understanding, was to
bee held for treason. The same grace and
fiiuour, which had been before extended to
Drew rie, in as ample mausure was offered to
Dauies, the other priest, and he was demaund-
ed whether he would take the oath or no. Hee
replied, that he was a poor simple ignorant
man, and could hardly censure what thereto
belonged. For there were many learned priestes,
whose iudgements, in this case, he would first
know, and then, perhaps, he might be other-'
wise altered. AVherein appeareth, that one
only Romish rule and observation is a lesson
or direction to them all, and the bu!s or breues
of the pope are more regarded and resperted
by theui, ihan the natiue loyalty and obedience,
they owe to their king and countrev. But
mercy hath been ouer-inild too long, and won
no such grace from, as iustly was expected,
but rather hath armed them with more bold-
ness e and insolence, than either is fit in them
to oiler, or standes with the wisdome of so
Sreat a state to endure : For, ' Nunquid colli-
' punt de spinis uvas, ant de tribulis ticus?*
Doo men gather grapes of thorns, or iigs of
thistles?

36D]

STATE TWALS, 5 James I. 1607— a Priest, for Treaton.

[370

When no further good, either by testimonie
of their owne shame, or euen father-like and
most kiade penwasious, could be wrought vpou
either of them : first a inostgraue, learned, and
iudicious admonition was made unto them,
containing breefery the many and extraordinarie
great graces of the kings niaiestie towarde
raeone of their condition, and howc, after
graunting them first bis free and geuerall par-
don, hee ueuer left oil, but pursued them still
with all fauours that could be deuised, as not
desiring the death of any one, but rather to live
quietly, like a godly, peacefnll, and religious
king: not enacting any new or seuere lanes
against such daungerous persons, but ratifieng
and confirming them that he found at his com-
ming, which queen Elizabeth, of euer happy
memory, compulsiuely was compelled and en-
forced to make against them. And Vet the
justice of those lawes', which hud been or seauen
and twenty years continuance before, his nm-
iestie did fbrbeare to execute; and finding
manye, whese liues* lay vuder the forfeit of the
law, not onely did he remitte them in grace, but
likewise gave his free pardon to all • sending so
manie as were in durance away at bis own
cost and charge, and- publishing the like offer
to all other mat wolde except of so kind a
benefit : as loath to meddle with their blond,
that were enemies to his life, and desirous to
win them by mercy, if they were not too mon-
strous. Nor hath he sentenced any priest with
death since his comniing to the erowne, but
such as were men of most daungerous qunlitie,
and had their hands ouer deep in most barbar-
ous and inhumaine treasons. But when neither
perswasions, sufferances, nor proclamations will
ferae, to keep such daungerous men out of the
land, but euen, in spight of the king and his
lawes, they will needs come over, and put in
practice their treacherous deuyies : mercy, of
necessity, must give way to iustice, and pitty
preoaile no longer, when grace is dispised.

The many and excelent parts, contained in
Ifaister Recorders learned and elegant speech,
I am not able to set downc, and, therefore, do
humbly craue fauour, for but glauncing at
these few: which thogh they come farre short
of their iust merit e, yet let my good will ex-
cuse al imperfections. Being come to the ve-
ry iumpe of giuing judgement, Drewrie de-
manded, if, a* yet, he mi<;ht have fauour to
ftpeak, and, most honorably, it was answered
tint be might, for the king's mercy was neuer
too late ; therefore he was willed, not to trifle
the time in friuolous speeches, but, if he wolde
yet take the oath, do it and afterwards speak
wbat runner he wolde ; which made all the
slanders by euen confounded with amaze-
ment, that grace should be so oboundantly of-
fered vnto such froward and wilfull refusers.
Drewrie wolde not yecld to take, the oath,
thereupon the sentence of death was pro-
nounced against them both. To bee conueyed
thence to the place from whence they came,

vou i|.

and there to be laid vpon an hurddle, and so
drawne to the place of execution, where they
shouide haug till they were hall deade ; then to
haue their secrets cut off, and with their in-
trailes throw ne into the fire before their faces,
their heads to be seuered from their bodies,
which seuerully should be deuided into four
quarters, and afterward disposed at his majes-
ties pleasure, in mean while, the Lorde to take
mercie upon their soules: and so they were
sent backe to prison againe.

A brtefe Report of the Execution qf Robert
Drewrie, droune on a hurddle in hit Fryer-
Benedictine hubbet to Tybortie, on Thursday
the tweniy-fifl* °f Februaric.

On the next morning, being Thursday, an
hurddle being broght to Newgate, Robert
Drewrie, hoping yet for life, and not thinking
to die, as by the st quell it plainely appeared,
hauing put on, after the maner of the Bene-
dictine r ryers beyond the s>cas, a newe suit of
nparrell, being made of black stuife, new
shooes, stockings, and garters, and a black new
stuffe priests gown, or cassock, being buttoned
downe before by loops and buttons, two and
two together, to the verye foote, a new cor-
nered cap on his heade, and vnder it a fair
wrought night-cap; was, in this manner,
drawne along to Ty borne, where being by the
executioner prepared for death, he was brought
vp into the cart, and vsingsuchydle speeches,
as he had don often before, that he dyed not
for treason, but for his priest hoode, hee was
willed to deal more iustly, anil not to abuse
the world nowe at his death, in vttering that
which was a manifest lie and uu truth. He
made ans«cre, that, in all bis life-time, be had
not told a lie, and then, after a short pause add-
ed, not willingly. There were certain papers
shewn at Ty borne, which had bin found about
him, of very daungerous and traitorous nature.
And amonge them also wns his Benedictine
faculty vnder seale, expressing what power and
authority he bad from the pope, to make men,
women, and children he ere, of his order; what
indulgences and pardons he colde graunt them,
both in this life, and for multitude of ve ires af-
ter their death, presenting them botn rroni purga-
tory,and warranting their entrance, bv the popes
keyes, into Hcauen. He confessed liimselfe to
be a Romaine Catholick, and a priest, and de-
sired all Romnine Caiholickes to praye with
him, and for him. And often looking about
him, as hopinge there was some mercie for him,
for feare appeared very plainely in him, when he
felt the cart go away under him, and his ex-
pectation to be decerned, lie caught fast holde
with hi* left handc on the halter about hys head,
and very hardly was inforced to let iti;oe, but
held so for a pretty while. If this were not an
apparant hope of life, I refer it to better judge-
ments then mine own. He hung till he was
quite dead, and afterwards his body was quar-
tered.

'J B

37 1] bTATE TRIALS, 4 James 1. It>o0.—vjfc »n:ut Case of Impositions,

S3. The Cask of Imposition's, oh an Information in the E:
quer by the Attorney-General against Mr Johv Bates,
chant. Michaelmas, 4 James I. a.d. 1606* — 1610.

[" This famous Case involved in it n constitu-
tional Question * of the first magnitude ; Mr.
Hates, the Defendant, having been prosecuted
tor refusing to pay a Duty on foreign cur-
r suits impose I by a mere a< t of the crown.
The attempt to enforce a submission to this
duty by legal prove**, was certainly a prin-
cipal .slid early part of that rush and unwar-
rantable scheme to establish in the crown n
right of taxing the subji-tt, which disturbed
the reigns of the two first prince* of t»-e
Stuart line. James the tu>t claimed the
right of iui| osing dut cs on iutportt d ami
exported merchan.h/e l.y pre rotative. Hi*
son and immediate successor, the unfortu-
nate diaries, nut onlv persisted in the claim,
but added lo it the ecpi -illy form da hie pre-
tension of >hip-ir.i»nev. Keal'7ed, these
claim*, with loan-, benevolences, monopo-
lies, and the ■ilher suhsidiary branches of the
same extravagant dos^n, would have com-
prized up uly a ccmpleat system of c xtra-
parluiment ry taxation ; for impos.tion at
the port- wu> calculated to serve the purpose
externa- y, -hip-money to operate internally.
Had they been acquiesced in, parliaments
would soon have became unnecessary assem-
blies; the mildness of a limited monarchy
would gradually Lave degenerated into the
harshness of on absolute one ; a legal govern-
ment would have been corrupted into a ty-
ranny. To the great disgrace of the profo-
fession of the law, some who in oilier iv-
spects were iis brightest ornaments, gave
tneir aid to these aiknipN against the rights
of parliament. Wc make the acknowledg-
ment with concern ; but it is a truth, which
neither caii u.iroii'jht to be concealed. The
great luminary of scirnce, lord Bacon, exer-
cised his eloquence to reconcile parliament
to impositions l)y pivi native. Sir John
Davis, so justly admired for his writings
about Iiel md, composed a treatise to prote
the rigbt of the crown, Both displayed the
gre:i'u\ss of their talents on the occasion,
though they managed :he argument in dif-
ferent ways; the former speciously profc-s-
ijii; to ch'.un the prerogative in question from
and to limit it by law ; the latter boldly ad-
venturing to exalt the same prerogative above
law, and describing it to be like another
£ampson, too strong to be bound. Q. IJuc.
4to ed. 177H. u. '2ll*\. Oav. on lmposit. 131.
Even the judges dcigiitd to be instruments
for subjn.;:ttn'4 tin ir country to an illegal
taxation. Tho.igh it was incontrovertible,
that, by the fundamental policy of our con-
stitution, the legislature consisted of king,
lords, and commons iu parliament

• See 1 Cobb. Pi"1

bred; though the judges had beibr

the strong testimony of lord chancel!

tescue in hit famous book ' De L.

Le-iini Anglia;,' that even in the r

Henry il.e sixth nod Edward the fo

English monarchy stood dUtingui-lii

mi ted from the Trench innnaichy as a

notwitlista oiling their original rest in b

each other; though this iioble-mUic

chancellor had instructed the heir app

the crown, that one of the most cs ei

fereuces between the two muiiarchii

from the prev-ilen* e of the king's d<

of taxation in I ranee, and from pail

having that power in Fnghuul ; thou

could not but ki.ow, that from the

the king should succeed in atiracti

parhamei t the cmmnandi-ig power

tion, pailiurncnt must have perished

the statute- book was full of legisiu

duration* against taxes without co

parliament, though not so much a*

cognition of the claim could be fnui

records of justice, the court of e?

in BateA case unanimously gave j

tor impositions by prerogative on

and exports; and iu Mr. Hampdei

though some very recent admouiti

warnings of duty had inte:\eiied,

. judges of Westminster-hall, two mil}

ed, joined to give the sanction of t

opinion to ship-money. Nor were

lie**, loans, and benevolence*, wh

countenanced hy the courts of justic

during this crisis, the houses of pir

did not forctt their duty. They pui

several devices for illegal taxatioi:

were hunted down, and had yielde

tide of law and constitution. In 1

bouse of commons, alarmed by the j

in Bates's case, formally debated *

of the crown to impose on inerchr

the ports ; and at length by a pctitit

king complained of such hn posit i<

grievance, which in tie subscquer

incuts was followed with frequent

s trances of the like kind. In 1G2J

po!ics were curbed ami regulated b'

■ * «

in 1027, t iiift-, loans, and bene
were pointedly declared contrary I
the Petition of Right, with general
comprehend all sorts of taxes anc
out of parliament. Iu 10 10, J thi
tare crushed ship-money almost in

* For more learning relative to this

see the third part of lord Hale's most

Treatise " concerning the Customs," i

vol. of Mr. Hargrove's Collection of 1

* Pnhb. Pari. Hist. 830, ct m

Pfcri. Hist. 67*.

373] STATE TRIALS, 4 James I. 1 606.— on an Information in the Exchequer. [ 37 4

by declaring the judgment for it contrary to J
law and vacating the record. In the bumc ,
year the final blow was given to taxation by '
prerogative ; an act tor tonnage and pound- j
age being passed, with a declaration against ,
the king's claim to impose such duties. I
Thus the victory over all ihe several in- i
ventions to tax tlie subject by preroga- |
live became complete ; before the civil ,'
wars broke out, before, the contest with the !
•crown degenerated from resistance o( its '
usurped powers into an invasion of its jus>t >:
claims. Fortunately too, when the country j
emerged from the anarchy and misery of the
scene which followed, the extravagance of
joy did not extinguish a due remembrance
of the constitution. One of the first acts,
after the restoration, was a grant of tonnage
and poundage, with words which renewed a
part of the former declarations against tax-
ing by prerogative ; for it anxiously recited,
that * no rates can be imposed on mcrchan-
4 dize imported or exported by subjects or
* aliens, but by common consent in parlia-
4 inent.' 12 (J ha. '1. c. 4. §. 6.— It wus
once our intention to have traced more fully
the history of the long contest* about taxes
out of parliament, from the accession of the
bouse of Stuart, till it was finally decided
against the crown in 1611 ; our plan being
to have minutely and distinctly stated the
proceedings on each specas of device to
elude the constitution, and to have given a
general view of the arguments by which each
was sustained or repelled. But though we
had already made many researches, and col-
lected several materials on the subject, it
was found impossible to do justice to it,
without more time, than was consistent with
present cnnvi nieuce to allow. We theie-
tore reserve the detail of the subject for
some future occasion. As to the attempts
at extra-parliament. i ry taxation in the pre-
vious period, they are fully investigated in
some of the pieces which we now present to
tlie reader.
u So far as respected the general point of taxing
by prerogative, it stems to have been the
strongest of all casts against the crown.
There were such apparent bars to the claim
of prerogative in this respect, that it bccms
surprizing, how lawyers of eminence could
fubmitto the drudgery of being advocates in
such a cause. If king James had found huh-
lelf strong enough by military force to change
the form of our government, and to substi-
tute for it a dt-spotic sovereignty in the
crown, however monstrous such an abuse of
bis public tmst would have been, its mean-
ing could not have been doubted ; for it
would have amounted to saving, " 1 confess
th« present constitution is otlierwiso, but I
chute to make a new one; ' sic voleo, sic ju-
'beOfStct pro ratione voluntas/ However
■sjutthlahle it may be, I will have it so."
Bit whatsoever the inclinations of James
AlinK *nd his son the unfortunate Charles

i

might be, either they were not hi a condition
to risk being thus explicit, or had not the
courage to try their force : and this being so,
the difficulty of accomplishing their design
against the constitution became great in-
deed ; for the great lines of argument both
on the principle and fact of the constitution
w ere in the teeth of prerogative taxation ;
whether the attempt had been made in the
lar^e and short way, by at once insisting,
that tlie power was inherent in the crown
and exerciseable without tlie. two houses of
parliament ; or, as the experiment was
tried, in the detail, by taking advantages of
all the irregular practices of former times,
and by straining certain allowed rights and
prerogatives into abuse, and so giving to
them the colour and pretext of a right of a far
higher class. It could not be denied, that
the legislate power was by our constitution
in the king, lord-, and commons. To argue
then the next moment, thnt, notwithstanding
this, there was latent in the crown a power
of taxing, was an inconsistency in principle;
for it was saying, in the same breath, that
the king was and was nut the legislature;
taxiiur the subnet being undeniably one of
the hiiihe^t exercises of legislative authority.
Nor was the argument on the matter of fact
much better for the crown. As far back as
tlie reigns of Kdward tf.e llrst and Edward
the third, thai is, almost as far back as the
records of parliament, those most autlici.tic
sources of our constitutional history, can be
traced, the king bus joined with the two
houses of parliament iu imst explicitly de-
claring, that to tax in any other manner
than in parliament is contrary to the law of
the land, and that all other forms of taxation
are strains of regal power incapable of being
justified. It also happtnrd, (hat exclusively
of such general legislative declarations
against taxing on: of parliament, their was
scarce any particular mode of illegal and ir-
regular taxation, but what at one tune or
another had bijcn specifically condemned.
It was no wonder therefore, that lord Coke,
when he framed the Petition of Right in the
reign of our fir*t Charles, laid his foundation
against the pn-rogativc of taxing, as well as
against the other excesses of that ill-adv.>cd
prince, ou the code of our aiitient statute
law; for it is observable, that, throughout
that famous declaratory law, every propor-
tion is derixed from that highest ol all
sources for consLtti.tionul knowledge. ILre
one might easily imagine lord Coke, thi n
nearly of the age of eighty years, to address
himself exult ingly to the speaker of the com-
mons to this « ifect. '* I propose to the
hoiiHa, not a th'-ory of the best kind of go-
vernment; not a change of our constitution
in the way of improvement : but the salemii
declaration of an actual and subsisting con-
stitution ; one botiurably derived to us (rom
our b'lnly ancestors, one capable of being
proved by testimony from the eirliest le-

375] STATE TRIALS, 4 James I. 1 606— Tfo? great Case of Impositions, [370

cords of parliament; one, which has sub-
sisted fur centuries, and survived both the
calamity of various and lone; civil wars, aud
the .tyranny of successive ill administrations
of our government, even the sanguinary
reigns of the two first princrs of the Tudor
liny; nay, one, which even they found it
convenient to add new sanctions to, by re-
sorting to its forms to give Currency lo their
despotism and cruelty. Thus strongly fenc-
ed witli the highest possible testimonies for a
mixed and limited monarchy, I wave all in-
ferior proofs. I might perhaps evince from
our antient story, that hi all periods of time
there was a freedom in our constitution ;
that it was free to our llritish, to our Dan-
ish, to our Saxon, nay to our Norman an-
cestors; and that it was beyond the power
of traditionary fable to name t|ie period,
when our monarch* were unshackled by
parliaments. I might perhaps trace the an-
tiquity of our present legislative constitu-
tion, as composed of king, lords and com-
mon*, or at least the substance of it, as far
back as the time when the Roman govern-
ment ceased amongst us. But I will not
travel unnecessarily into such remote periods:
I will not unnecessary waste the precious
time of this hou?e, or even my own time, in
such trnditionirv and dubious investigations.
I will it-wti all :!u>e topicks to the curious
antiq larian *.is i.is proper i nployment; or
reserv'j tbom for t'ue p:tstii::e of private cu-
riosity. " Cohfid: it in thi strength of parlia-
mentti: v :aecoid«» i will appeal •»> them only.
Tf th-.y ;»re not decisive in my favour, or as
I should rather >iv 1:1. favour of the constitu-
tion and s^aiiHt mon-irchical despotism, I
yield the \iitory to the devotees of the
crown: I agree, that the king shall singly
exercise that highest pover of legislation, the
po»ver of t.ixing : I agr-e, th »t from hence-
tonii the king of England shill be a tyrant ;
and that the reality of parliament shall ex-
pire here, as if has expired in almost every
other country in Europe. I will not even
ask f »r aid from the tes'imony of that honest
and gciu runs lawyer, tlu.t high example of
judicial clia>tity, that undented servant of a
court royal, th» i»ieut lord chancellor For-
tescue. Even hi* admirer! printed b'»ok
* De Laudibus Legum AngliaV and the still
more valuable remains of him in the manu-
script treati.se on the dilfi reticc between ab-
solute and limited monarchy, shall be sup-
^rcv-ed. I ask only to put into my scale of
a free coiifiitution, ; ud of a limited monar-
chy, the >tatu'.e roll, and o'her records of
parliament. Saving these only, I consent to
put ii.to the tcr.le v( regal prerogative, all
the fables of LlritMi antiquity, -ill the tradi-
tions of our Ciotliic ancestor*, all the imper-
fect histories of monkish annalists, all the
vague argument 4 fro.n the vai»uc titles of
Saxon and Anglo-Noiman laws, all the de-
ceptive verbal criticism from words no longer
clearly understood, nil the volumes of pre-

cedents of irregular and condemned prac-
tices ; nay even the vain arguments from the
uncertain origin of the representative part
of our English parliaments, with the boasted
argument from the arbitrary administration
of the executive magistrate whilst our throne
was filled with the proud Tudor line. Al-
low to me the benefit of the Magna Charta
of our third Henry as confirmed by our first
Edward, with the long scries of subsequent
statutes and parliamentary records ; especi-
ally the 34th of our first Edward against tal-
liaucs and aids without consent of parlia-
ment, the 25th of Edward the third against
forced loans, and the statutes of the last
mentioned king with those of the second and
third Itichards against henevoleuces and
such like charges. Those on the other side
shall have the full and sole benefit of all
other records and testimonies whatever ;
with the additional weight of the king and
bis whole court ; without excepting his ac-
oomplished but too pliant judges, or those in-
defatigable hunters of precedents for viola-
tions of constitutional government, the groat
law olHcers of the crown. Should the pon-
derous weight of royal charters and parlia-
mentary records fail me against such an ag-
gregate of influences in the opposite scale, I
Uiil agree, that the constitution of parliament
must perish ; and that our kings must in fu-
ture be absolute and despotic sovereigns. —
Though too my scale, in consequence of the
wisdom, integrity, justice, and firmness of
this present bouse of commons, should at
present preponderate ; yet from the increas-
ing degeneracy of those out of this honoura-
ble house, I prophesy, tint the high talents
with the low ambition of future lawyers will
soon again counteract our present solemn
proceedings against the excesses* of royal
prerogative ; and that future judges will
soon arise to countenance those e\ccsscs by
new corruptions of judicial authority. But
should the conflict le once moie revived, I
trust, that the freedom of our constitution
will a<:;dri triumph : aud should that Contest
ever again come, and another victory be
gained over the pretended prerogatives of
the crown, which events from the course of
nature can scarce happen in my time, be it
recorded in the jounuds of this parliament,
for the instruction of our latest posterity,
that such a time, whenever it shall come,
wiil not be the isra of a free government
newly established in resistance of the abuses
of royal power ; but \% ill be the a?ra of mere
salvation of a fraoie of government so an-
tient, that authentic mexuori ds are wanting
to trace its origin with any tlu'mi like accu-
racy."— In the speech thus imagined for lord
Coke, when he prc-eiued the Petition of
Riidita to the house of commons* in the year
1CV27, there is a succession of thoughts
which are the result of oil the now editor's
study of tie ant ten t contests between the
crown and the subject, on the claims of pre-

377] STATE TRIALS, 4 James I. 1606 on an Information in the Exchequer. [37*

»

cess of prerogative ; or at least that it was
never thought fit to produce any opinion of
the judges, or to assert that any such was
ever given by them in that reign.
" Upon this transient view of the attempts
to establish a prerogative power of taxation,
how can it be wondered at, that the rash at-
tempts of James the first and his son the un-
fortunate Charles, which latter really was

. possessed of many pleasing and valuable ac-
complishments, should terminate in the dis-
grace of the former, and the personal de-
struction of the latter ? The father had to
answer for attempting to systemize preroga-
tive taxation. The son, misled by the fa-
ther's ill example, and having had instilled
into his mind the most extravagant notions
of the unbounded extent of regal power, not
only adopted his father's illegal plan ; but
persisted in it, even after giving the royal as-
sent to laws expressly condemning both
generally and particularly all taxes of the
subject except by act of parliament ; and so
at length the more deserving son fell himself
a victim to the adoption of a system, which
the far le*s deserving father had begun to
execute, with no other mischief than one
which his mind probably did not sufficiently
feel, namely, the disgrace of being odious to
and distrusted by his subjects. To the con-
duct of their predecessor, queen Mary, it
was an objection, that she had revived an ill
precedent of prerogative taxation after a
dormancy of centuries. But on the part of
James and Charles, there seems to have
been the aggravation of variously extending
the bad precedent thus received from Mary ;
with the still higher aggravation of influenc-
ing the jndges into a public avowal of judi-
cial opinions, which justified even the prin-
ciple of taxing without parliament. It may
not be useless to add to this long note, that
the present editor is in possession of a vo-
lume, formerly belonging to sir Christopher
Yelverton, father to sir Henry Yelverton ;
which contains, among other valuable law
manuscripts, not only a full report of the ar-
guments of the judges and counsel in the
Case of Imposition*, hut also thq copy of u
most elaborate argument in that case by lord
chief baron Fleming, from original nous
written in hi* book, and in his own hand.*
Decided as the present editor is on this
sort of subject, he wishes not to conceal
an iota of the learning on the contrary
side of the question. So far from it is
he, that should the present Collection of
Tracts be continued, which however is not
vi ry probable, it is bis design to publish the

' very nruument thus mentioned. Nor is he
afraid to m' prize his readers in the mean
time, thui, notwithstanding its great hie-
luishcs, it is so able a performance, as in

rogative to a right of taxation and other
powers of a legislative kind. The same
ideas in substance have often occurred to his
mind, and he has long wished to disburthen
it by an avowal of them ; though till the pre-
sent moment he has not so much as once
made the attempt. True it i*, that xhese
thoughts are very general, arc mere outlines
for argument. To try their force, an in\es-
tigation of innumerable authorities is requi-
site. But loose and general as the reason-
ing is, it may perhaps serve as a preliminary
memento for those, who are curious and
able to pursue the subject in its fullest com-
pass.
* With respect to the particular claim of a
prerogative to tax at the ports, it was more
than liable to the general objections of being
a prerogative taxation ; because there was
the addition of peculiar arguments against
yielding to such a precedent. It was this
very species of regal impositions, which gave
occasion to some of the antient statutes de-
claratory of the illegality of taxing without
the consent of parliament ; as will appear
bj reading the incomparable speeches against
imposition* at the ports, by those profound
constitutional lawyers Yelverton and Hake-
will. It was also an apparent bar to such a
cltim, that it had not only been condemned
in the reign of the fiist and third Edwards ;
hot that from the time of the latter king,
there had been a continual habit of granting
duties of tonnage and poundage at the ports
on ihe commencement of every reign, either
for the lite of the new monarch, or for a
term of years. Nor is it to be forgotten,
that prerogative impositions at the ports ap-
pear to have been dormant, from the reign
of Edward the third, till after the accession
of queen Mary, the elder daughter of our
eghth Henry. That princess indeed did
cause a resurrection of such impositions,
after their having been asleep for near three
centuries, by ordering some duties on cloth
to be levied beyond what was warranted by
the patliameutary grant of tonnage and
poundage to her. But the then merchants
of London were etpmlly awakened by the
measure; and thev loudly complained, in
die first y«"ir of Elizabeth, to that great
queen, to be relieved on the ground, that
such impost by mere power of the crown
•as illegal. Their opposition is thus stated
in lord Oyer's Reports : and it was aidod by
an argument against prerogative duties at
the port* ; for Mr. H.nkewill tells us, th;;t Mr.
1'lowdcn, one of the most consummate law-
yers we have had at any time, composed
such an argument against the du'.ies thus
irregularly imposed by Mary. From the
tame authority also, and from the account
of the case in lord Dyer's Reports, fol. 160. it
i* Hear, that notwithstanding a conference
cf the judces on the occasion, no saiicrim,
fit Iter judicial or extrajudicial, was ever ob-
tained, in the reign of Elizabeth, for this ex-

* It is to he regretted tint the learned gen-
tlrTRtn hiis not made public the contents of
this M<\

370] STATE TRIALS, 4 James I. 1606.— The great Case of Imposition*, [380

many respects to deserve a very serious at-
tention, even from those the most hostile to
the unconstitutional system of taxing without
a parliamentary grant.. Here our readers,
who are curious on subjects of the constitu-
tion, may consult what he has remarked
about benevolences in a note to Mr. Oliver
St. John's Case, (a. d. 16*15, infra.)— The
editor cannot conclude this note without ap-
prizing his readers, that he is possessed of an
imperfect manuscript tract, intitled, " Re-
flections by the Lord Chief Justice Hale on
Mr. Ilobbs*s Dialogue of the Law :" and thut
this performance, though an unfinished one,
contains both a very pointed refutation and
a very severe reprehension of Mr. Hobbs for
his arbitrary notions concerning the extent
of the kings prerogatives. Iu general lord
Hale is the most dispassionate of all writers
upon our law and constitution. But he saw
the pernicious tendency of Mr. llobbs's doc-
trine in so strong a point of view, that in
this instance lord Hale appears to have been
scarce able to restrain his indignation. The
following extract from the manuscript, being
on Taxation, will evince this ; mid at the
same time shew, how pure this exemplary
judge's opinions were on thut high subject.

* It is a thing most certain and unques-
■ tionable, by the law of England, no com-
4 mon aid or tax can be imposed upon the
' subjects, without consent in parliament ;
' and no dispensation or rwn obstante enn
' avail to muke it good or elYeetual ; no not
' for the maintaining of a military force,
' though in case of necessity. And that

* man, that will teach, that iu all these cases
' a tacit condition is implied, to let loose
' laws of this importance) and to subject the
' estates and properties of the subjects to
' arbitrary impositions, notwithstanding the
' solcuinest engagements to the contrary. —
' 1. Takes upon him to be wiser than the

* king himself, who hath not only granted,
' but judged the contrary. — 2. Takes upon
' him to be wiser than all the estates of the
' kingdom, as neither just or prudent ad-
' \isers for the good and safety of the king-
' Join. — H. Goes about to break do* u the
' security of all men's properties and estau-s.

— 4. Doth mischievously insinuate jealou-
sies in the minds of men, as if all the laws
of the kingdom might be abrogated, when
the king pleaseth; and thereby does the
king and his government more mischief
than he can ever recompence.*
u The only state of this important Case, and of
the arguments in it, is in Lane's Reports, and
in a sliort note added to Dyer's Report* by
the learned editor of the improved edition.*
See Lane's Rep. p. 82. and Dy. ed. 1683, to.
l(35-b. in the margin. The report in Lane,
being the fullest, shall be laid before the

**Sec the observations, ou this short note,
of Mr. Vaillant iu his improved edition of
DJtr, 1795.

<

c

t

4

reader ; to which we shall subjoin a Speech
made in parliament by lord Bacon in 1610,
when the Judgment of the Exchequer in the
Case iu question was formally discussed by
the House of Commons. We shall next add
a transcript from an original Manuscript, de-
scribed by Mr. Carte to be in the hand-
writing of the famous sir John Davis ; being
in substance like the latter part of the
printed Treatise on Impositions with his
name, but differing much in the language,
and more likely to be correct. These pieces
together comprize the principal Arguments
for the prerogative of Impositions claimed by
the crown. But, without something more,
it would be a very partial view of the sub-
ject. In justice, therefore, as well to that
excellent constitution, to the injury of which
the claim of Impositions by prerogative ope-
rated, as to those who so honourably for
themselves and so happily for their country
resisted the invasion, we shall add two most
learned and able Arguments on the opposite
side of the question ; one delivered by Mr.
Hakewill in the same Parliament with lord
Bacon's Argument ; the other also contem-
porary, and said to have been composed by
sir Henry Yelverton, afterwards the judge of
that name. Both of these valuable rem-
nants of the Debates in Parliament on Impo-
sitions by the crown are very rare ; having
been printed separately, and not being to be
found in any published collections of toe
time. What is very remarkable, they are
not only unnoticed by Mr. Hume, Mr. Carte,
and the authors of the Parliamentary His-
tory; but have even escaped the observation
of our deservedly celebrated female histo-
rian. That the two former writers should
not be studious to draw the attention of their
readers to two arguments, so (it to counteract
the reception of ihcir particular prejudices,
is easy to be accounted tor ; especially in
the instance of Mr. Carte, whose bias ia
favour of tiie prerogative is more avowed
and apparent than Mr. Hume's. But Mrs.
Macauiay's silence cannot be explained in
the same way ; and therefore we attribute it
to the accident of her not having met with
cither of the arguments. Perhaps our obser-
vation on Mr. Hume and Mr. ("arte may
sound as harsh to some persons. But we can
assure such, that it is not intended to write
disrespectfully of either of those authors-
We feel strongly the merit of Mr. Carte, as a.
most elaborate historian ; as one, to whose
familiar knowledge and skilful use of records^
with the other most am hen tick materials of
the history of his country, all, who follow
him in the same line, are infinitely obliged.
For strength, clearness, and elegance nf »tilcv
for profoundness in remark, for beautiful ar-
rangement and clo*e compression of matter,
we consider Mr. Hume's woik as a model of
historical comport ion. Such bung the cha-
racters ol thc&e co.nunt writers, ii becomes
the more ueceMurv to know, on which side

341] STATE TRIALS, 4 James I. lOOii.-
tbeir prejudices operate. Otherwise the au-
thority uf tueir works might have an im-
proper influence in if tiling the opinions of
their readers on the controverted points of
our internment nnrl constitution, nnd so
lead to the di-se mi nation of dangerous and
pernicious errors. The truth seems to he,
tbiit • general History of England, coin*
posed witii that rij;iH impartiality so essential
to a perfectly jmt idea of our constitution,
if still Knitting. Hitherto the best of our
writer*, who fame engaged in ihut arduous
task, have lieeti betrayed into extremes.
One is swayed by predilection for the Stuart
family; whil«t another I uses Ins temper from
aversion to them. Some write from favor
tu absolute monarchy ; others are votaries
to the paction of republicanism. Too many
have been seduced by zeal for a particular

in the »■

ml h

. the

e practised th
or adopted the severe ant
plage of satire. But the m
to fix (he true point nf our an
in the sr ile »l gon rnment must banish (nun
his wind all such corruptive* of judgment.
" Besides 'he arguments by Hake will a nil Ycl-
vertou, against impositions on merchandize
by pierogulii c, there are some verv forcible
nitons with the saint- view by lord Coke in
his second Institute, where be cocArueats on
the 3Wh chapter of Magna Charta. See S
lust, puge 67 to fi3. Some nhservaiions
also occur on the sulject in the 12th part of
lord Coke's Iteports. But, in this latter
book, he writes with more favor to [he judg-
ment tor imp lotions in BntcVs case; for,
though be disclaims all idea of the crown's
hiring a right to impose duties at the ports,
in form of a tax anil for n revenue, yet be
contends, ttut, for the benefit of the subject,
and in the way of advancement nnd icgu-
latinn of i rude, the crown may charge. This
distinction seems to be of dangerous ten-
dency, and ti'il quite rcconcilcublc with the
wne ureal lawyer's sentiments in his 2d
Imtirute, where he condemns the judgment
in Bates's case without any reserve. How-
erer it should be considered, that lord Coke's
Itch Report cnutniiu only his first thoughts
btlbre t!ie qui-tion bad undergone a parlia-
mentary imestigation ; and further, that the
ltth Report is of small authority, bring not
itmdy p<j?niiiii]'iii!>, tint apparently nothiiiu
•wore than n collection from papers neither
digested nor intended for the press bv the
writer. U Co. If. p. 3:1. Those inclined tn
pursue tlic subject still furihcf in ay consult
4 Inst. 3'1. tlie Cue nf Sheppard against
Gthwrll and other- in VaughiuVs Itep. 159.
the title * Taxis' in Cotton's Abridgment ol
Records, the Case of Customs Dn, Rep. 7.
Former's Dig. of Laws relat. to Custonts, l.'i,
Gilbert's Treatise on the Exchequer, chap.
19. Maddox's History of the Exchequer,
coop. IB.* nnd the tide ' Prerogative' in tht
Law Abridgments." ilsrgrave.t]

i an Information in the Exchequer. [382
Extract Jrom Lant't Heporti, page «2.

AN information was exhibited against Bates, n
me rebuilt of the Levant; and it was recited,
that the king by his letters patents under the
great seal bad commanded his treasurer, that
be command the customers and receivers, that
they should ask nnd receive of every merchant
denizen, who brings within any port within his
dominions, uny currants, 5l. a hundred for ira-

Cosi, above 'i t, Gil., which was I lie poundage
Vt'je statute of every hundred; and it was
allc-dged, that li.uo had notice thereof, and
that he hnd brought in currants into the port
of London, and refused to pay the said is. iu
contempt of the king. Wheretintn B.ites came,
and said, tbat he is an English merchant, and
adventurer and a denizen, and that he made n
voyage tn Venice, and there bought tun ants,
and imported them into England ; and be re-
cited tlie statute of the first of king James
cap. 33. which grants lii. 6<l. for poundage,
and he said, that he bad paid that, nnd there-
fore he had refused to pay the 5i. because it
wits imposed unjustly, and unduly against tha
lawtsof the land; whereupon the king's attor-
ney demurred in law.

This matter bath been divers times argued
at the bar, nnd at the bench, by Snignnd.Savil,
baron*, and now by Clark and Fleiniuiii', chief
baron, whose arguments only I heard.

And Clark, who argued lirst this day, said,
Tlmt tliis case being of so great consequence,
great respect nnd consideration is t> be hod,
nnd it seemeth to me itmuge, ttuu. any subjects
would contend with the king, in ihis biyli point
of prerogative ; but such is the kin^s grace,
that he iiud slicked his inteia to be, that this
matter shall be disputed and adjudged by us
according to the nncirnt. law and customs of
the realm; and because that the judgment of
ibis mutter cannot be well directed by uny
learning delivered in our books of law, the best
ilinaidiis herein sire preti.deii^ of unliquitic,
uud tht course of this couit, wherein all actions
of this nature are to be judg< d, and the acts of
parliament recited in arguments of tliis cose
prove nothing to this purpose. Tlic beat cose
in law is the Case of Mine., in .Mr. Plowdun
Com. where this ground is put, that the prece-
dents of every court ought to be a direction to
that cpurt, to judge of mailers which are aptly
determinable therein, as in the Kings Bench
for matters of the crown, iu lilt- Common Pleas

for m

nd c

men,

• The case of the king's prerogative in Salt
Petri-, 4 .Inc. it. Co. Hep. 13, may also ba
looked into, though nut strictly in point.

t This nota is not printed ns it stood in the
last edition of the State Ti ials ; but the additional
matter in the leirued uimolatnr'l preface to
bis 1st vol. of " A Collection of Tracts, ore*
ha* heen berg iuterworeu.

383] STATE TRIALS, 4 James I. 1606.-7%: great Cose of Impoiitions, [3£ t

weal of the king is the public weal of the peo-
ple, and be for his pleasure may aforrcst the
wood of any .subject, and he thereby shall be
subject to the law ot the Ion est; and he may
take the provision of any man by his purveyor
for his own use, but at reasonable prices, and
without abuse, the abuse of which officer hath
been restrained by divers statutes; and the
king may take wines for his provision, and also
timber for his ships, castles, or houses in the
wood of any man, and this is for public benefit ;
and the king amy allay or inhauuee coyne at
his pleasure, for the plentie of the king is the
peoples peace.- And these imposts are not
only for the I -encfit of the people, and for the
king's profit, but arc also imposed many times
for the increase of merchandise and commerce,
as the statute of Aulnaueors made in the 2 K. 3.
cap. 1-1. which was made principally to make
cloathes more vendible. And so corporations
granted by the kins; with immunities and privi-
lege*, ami to seclude other subjects from than,
are well limited ami yood : for it is for the in-
crease of the peoples wealth, and thereby the
kings revenue is increased. And sometimes
there is contained in gi;:iits a prohibition to
other suljeivs, that they usurp not upon the
privileges of »uch corporations upon a paiu, as
in the cu&tome of forraign bought and foi raign
sold in London, and York ; and divers customes
are permitted to si<ch corporations, as in the
chanihcrlniu of London* case, Cook 5. and the
breach or violation of these customes is a
decay of the corporations, and so an impairing
of the re\cnucs of the crown; und therefore
the king may make them, and also give them
priviledges, and make inhibit ious to others, not
to usurp upon them. King Edward the tliird
in the sixteenth year of his raign proclaimed,
that no man should sell vtool-fels, or leather,
under such a price, so that these staple com-
modities iniuht not be debused, and this at no
place hut at Northampton and Anuick; and
this proclamation was the cause, wherefore the
merchant in 43 assise 38. was punished for
using deceit to aLatc the prices. And for pre-
cedents in this matter of impost, there are many
of antiquitie. And first for wines. In Id £. 1.
the custom for a tun of wine was 4f. and in 21

and 24 K. 3 it was increased to , and

12, 13, Cv 14, of II. 8. it was iu creased to 17*.

as it is not a kingdome without subjects and
government, so lie is uot a king without reve-
nues, for without them he cannot preserve* his
dominions in pence, he cannot maintain war,
nor reward his servants, according to the state
and honour of a king ; and the revenue of the
crown is the very essential part of the crow'n,
and he who rendeth that from the king pulleth
nlso his crown from his head, for it cannot be
separated from the crown. And such great
prerogatives of the crown, without which it
cannot be, ought not to be disputed ; and in
these cases of prerogative the judgment shall
not be according to the roles of the common
Jaw, but according to the precedents of this
court, wherein these matters are disputable and
determinable. As for example, an action of
accompt lies not by the common law against
him, who had the land of the accomptant by
mean conveyance. But if one be an accompt-
nut to the king, and had land in fee, and alien
it unto A. who alien it unto 13., B. by reason
t)\ tuis land, shall be charged with this accompt.
In 1 1 £. 3, a coroner was elected by the king's
v rit as he ought to be, by the countie, and
oftf r lie was amerced, and because he was not
sufficient to answer the amercement the coun-
tie was charged therewith, and that appears of
record here. And in 3ft E. 3. Rot. 0*. as ap-
pears also of record, in this court, one William
Porter was wagister woncl<ry and had received
bullion of divers merchant*, and coyned it in
the kings mint, and did not restore the coyne
to the merchants, but was insufficient, and the
king paid the merchants, and inquired of the
sureties for the coyne, and it was found that he
had none; then it was inquired who recom-
mended him unto the king, and it was found by
whom he was recommended ; and they, who
only recommended him as friends, were charged
v ith the debt. And if one be outlawed in a
personal action, and debt is due to him upon a
contract, this shall be forfeited to the king, and
this is ordinary by the precedents of this court ;
and yet this seems to be contrary to law, and
is against our books. And the king's 'debtor
shall have a quo ti.inus against executors upon
n simple contract, and therein he cannot re-
lease, nor be non-suited. And 1 put these cases
to prove, that the precedents of this court ought
to be pursued and oliserved, although they
seem to cross the common law, and the hooks
thereof. A case was here betwixt the kiii£ and
Jourden. Jourden was receiver, and sold his
office to one D. and lie not being able to pay
Jourden for his office at the day limited, it was
agreed, that Jourden should come to the next
receipt, and when D. received the king's money,
that Jourden should take it for his office,
which was done accordingly. After D. was
indebted to the king, and this matter appearing
as above, &c. Jourden' was charged w it.1i the
money which he had received. Aud as Stam-
ford in his hrst cap. ot* prerogative suith, that
the king is the most worthy part of a common-
wealth, so is he tlie preserver, nourisher, aud
defender of the people ; and true it is, Uiat tlie

the tun. And alter in the 4th of Mary it was
increased to 4 marks ; and as it appears by the
records of this court, it was answered upon ac-
compt for all this time according to tliat rate.
Ami it is apparent, that no act of parliament
gave this to the king, but that it was imposed
by his absolute power ; and shall it now be
doubted if it be lawful? God defend. Primage,
that the king shall have one hogshead before
the matt, and another hogshead kehinde, is not
cinm to the king by any statute, but was ouly
an impost by the kings power. The impost
upon cl oaths in 31-E. 1. was two shillings for
a scarlet, aud 18J. for other cloaths in grain,
aud after in the 37th year of E. 3. it was raised
again, and in the 37 £. 3. an act was njade

I

3,s5] STATE TRIALS, 4 James I. HKX5.— on an Information in the Exchequer: [360

fur the lenztli of cloathes; in the S3 H. 8. it
was raised a;jain ; and in the time of queen
Murv, because that the making of so many
cloathes made the impost of wool to he of so
stuuH vshie, therefore- the impost of every
cioath was raised by her to a noble : and in the
first of Khz. an import was imposed, for the
werlength of cloathes: and it op peare in 30
K. 3. that the impost of the c loath was for a
Granger 2*. Qtl. and for a Umifrn 1«. and all for
cloathes. Another import whs for woolfcls,'
and leather. The 31 E. 1. it was for wool half
a mark, fur a sack, and after that to 105. and in
the tune oi' E. y. to 20;. and after to 405. and
after to 3/. and so of woolfels and leather ;
and as the benefit and price of commodities did
rise, so was the impesc raised, and no act of
parliament for the lirst iiupOMug, and increase
thereof. And so much for wool ft Is and !ea-
iher. Now for all-nn. I* pun every kintal of
allom was imposed 35. Ad. which was answered
apon accompt ; and in the case < f Smith, it
was not doubted, if it shall be p-.iid, as here it
is, but if it were contained in -S:n»tiis patent or
not. The imposition imposed u) on colts. Now
the If. increase is paid. The impnsiihm up m
tobacco was never doubted to hcimjurtasthiais.
And so much lor precedent >. And now fur
statutes. The statute of Mu;:i:u Chart a, cap.
30. which was objected, tf.ot thereby all
merchants rnav have sale, <kc. to buv and sell,
without ill tol nets ; bur thcic is a savin;?, \\v.
'•T the ancient and old customs. The statute
of Articuli super churtas, cap. 2. hath a saving
in the end of it, that the king or his couiicci
diil not intend thereby to increase the antient
prices due and accustomed. .So . are all the
other statutes of purveyors. The statute of the
■15 E. 3. cap. -1. which hath been so much
urged, that no new imposition shall be imposed
upon woolfrls, wooll, or leather, but only the
custom e and subsidic granted to the king; this
extends only to the king hhutelf, and shall not
linde his successors ; tor it is a principid part
of the crown of England, which the king cannot
diminish. And the same king 21th of his
rjign granted divers exemptions to certain per-
sons ; and hecanse that it was in derogation of
Lis state imperial, he himself recalled and an-
nulled the same. As to that which was ob-
jected, that the defendant had paid poundage
S runted by the statute of the first of the kint»,
:at is nothing to this purpose ; for that is a
?ub»idie, and not a cuMwnc ; for when any im-
position is granted by parliament, it is only a
tnbsidie, and not a custome, for the nature
thereof is changed, and the impost of winci<>
paid over and above the poundage, and so
«hould it bo here. And whereas it was ol>-
jected, that if it were in the time of war, it is
•uftVrablf, but in peace not, this seems no
reason; for the king cannot be furnished i>
make defence in war, if he provide not in
p^ace, and tlie provision is too late made, when
it ought to be used. And as to that which vu?
said, that the subject ought to have recompute e,
und valuable satisfaction, it gecrncth to me that

VOL. If.

he hath; for he hath the kings protection
within his ports, and his safe conduct upon the
land, and his defence upon the sea. And all
the ports of the realm belong to the king, and
in this court there is a precedeut where one in
the time of queen Eliz. claimed to have a port
to himself, as his own, and it was adjudged
that he could not, for it belonged to the qaeen,
and it could not be severed ; and the king only
shall have the curtomes, for landing throughout
all the land. And in the 17th of E. 3. there
is a notable precedent, where he reciteth all
the benefit* which the subject had in his for-
raiyi traffick, by the kings power and protec-
tion, and thei afore he imposed a new impost.
The v.rit of ne exeat regnum compreheuds a
prohibition to him to whom it is directed, that
he sh:.'l not go beyond the teas ; and this may
be directed at the king's pleasure to any man
who is hi» subject; and so couM.,jucntiy may
he prohibite a!l mcrchn:K;; and as he may
pruhibllc the pert >ns, so may he the coeds oi
any man, \ iz. that he shall c\pjit or import at
bis pleasure. And if the King may generally
iuhibiu that such goods shall u A be imp >rted,
then bv the same reason may he prohibite
them, upon condition or sub tnoda, \i/.. that if
thry iir,:ort such good?, that then they si tall
pay, &c. And if the general he lawful, the
particular cannot bo unjust: and the words in
the writ ofwt' extut regnutn, viz. • et quam-
' plurima nobis, et corona* nostra* pr;»judicinlia
' ibidem prosequi intendis* are net traversable
bv the subject, but he ought dutifully to obey
his sovereign. As to that which is said, that this
command to the treasurer is not sutlicicnt under
the great seal, that is otherwise; for before the
statute of 11. 2. for matter of custoraes no com-
mand was directed to the treasurer, but always
the king signified his pleasure to his customers
under his privy seal, and this gave authoritie to «
them to collect customes, and the same authority
is given now to the treasurer, and derived front
him to the customers. As to that which is said,
that the conclusion is evil, because it is in con-
tempt of the king ; w ithout doubt it is a contempt,
for the king may inhibit trailic into any part of
the world, if he will, or intlict a pain upon any
who shall trade into such place inhibited. So
may he do upon any commoditie, either inhibit
it generally, or upon a pain or impost; and if a
subject use the trade after such inhibition, or im-
port his wan'«, and pay not the impost, it is a
contempt, and the kinij shall punish him for it
at hi j pleasure. And as to that which is said,
that it is a burthen to the merchant, that is not
so; for the burthen lavelh it only upon the
bettor part of the subjects ; and if it were a
burthen, it is no mm-i'th'tu t he y themselves im-
pi-M-d, which -.ias in their hands by commission
m the time of quern Kli/. and they have raised
the prices to subjects more than the value of
the import; and it is not to be intended, that
the king by any import will prejudice the cause
of merchant", for the tiade in general is to him
more beneficial, than any particular impost.
The cast of the 11 and 14 II. 1. of Aulnageor

387] STATE TRIALS, 4 James I. 1606 The great Cast of Imposition*, _ [388

is not to be compared to this case ; for there
the king had made a grunt to a subject, and it
was also of a thing which was granted before to
a maior, and also of a comrnoditie within the
land, and not transported. And for the case of
Darcy, for the monopoly of cards, it is not like ;
for that is of a comrnoditie within the land, and
betwixt the 'patentee and the king, and not be-
tween the king and the subject. And as to the
exception taken to the information, that it is
us> tat. and doth not prescribe, this needeth
not ; for it is a prerogative wherein lietb no
prescription, for every prerogative is as antient
as the crown. And as to the conclusion of the
information it was objected, that it is not good,
for the informer ought to pray the forfeiture;
but this belongs to the couit to judge of what
shall be lost or forfeited, the offence being a
contempt, and therefore the conclusion good
enough. And so for all those reasons judge-
ment shall he given for the king.

Flemming, chief baron. Touching the ex-
ceptions to the information, they are of no
force. For the first usitat. &c. it hath been
well said, that the king needs not prescribe in
any prerogative, for it is as antient as his crown
is, 2 £. 3. and for the conclusion, viz. that he
in contempt, &c. that deserves no other answer,
but that which hath been given before, for it is
enough, without doubt warranted by infinite pre-
cedents. But for the bar, it is an increase
of the defendant's contempt, and no sufficient
matter to answer, an indigested and con/ased
tale, with an improper and disobedient con-
clusion, and there is in it multa non multum ;
but the conclusion is without precedent, or
example, for he saith, that the imposition,
which the king had laid, is ' indebite, injustc,
1 et contra leges Anglian imposita,' and therefore
be refused, &c. In the Case of Smith for A 1 loin,
the conclusion was moderate, and beseeming a
subject, judgment if he shall have impost by his

frant; and in the Case of Mines, the defendant,
eing a great peer of the realm, concluded upon
his grant and interest in the soyl, and that he
took the metal, as it was lawful for him, and
did not confront lira sovereign with terms of
injuste indebite, and the like. And the king, as
it is commonly said in our books, cannot do
wrong ; and if the king seise my land without
cause, I ought to sue to him in humble manner,
humif/iwc supplicant, &c. and not with such
terms of opposition in the information; and all
his matter had been saved to him then as well as
now, or he might have pleaded his matter, and
said wherefore fie refused, as it was lawful for
him. But for the matter, it is of great conse-
quence, and hath two powerful objects, which
it principally respecteth. The one is the king,
his power, and prerogative, his treasure, and
the revenues of his crown ; and to impair and
derogate from any of these was a part most
undutiful in any subject. The other is the
trade and traffick of merchantdise, transporta-
tion in and out of the land of commodities,
which further poblick benefit ought much to
h% respected, and nourished as much as may

be. The state of the question is touching a
new custom. The impositions or customs arc
duties or sums of money newly imposed bj
the king without parliament upon merchan-
dise,, for the augmentation of his revenues. All
the questions arising in the case are, * aut de
personis, de rehus, vel de actionibus,' viz. form
and proceeding. The persons are, 6rst the
king, his power, and autnoritie ; secondly, not
Bates the defendant, nor the Venetians, but all
men who import currants. The imposition is
properly , upon currants, and for them, and is
not upon the defendant, nor his goods, who is
a merchant ; for upon him no imposition shall
be, but by parliament. The things are cur-
rants, a forraign comrnoditie, and a victual ;
the 5*. for impost, which is said to be great*
The action formed or process is the command
by the great seal, and the words therein are
peterc et recipere, if they' be sufficient, and if
good without proclamation or other notice, and
how notice shall be given, and if it he good
without an ad quod damnum. And the Case of
Mines in Plowden, which is the sole case in the
printed books of law, to this purpose, hath in
foure reasons of the judgement. First, the ex-
cellency of the king, or his person. Secondly,
the necessitie of coyn for his state. Thirdly,
the utillitie of coyn for commerce. Fourthly,
the inconvenience, if the subject should have
such royal possessions. And these reasons are
not extracted out of the books of law, but are
only reasons of policy ; for ' rex est legalis et
' politicus,' and reasons pollitick are sufficient
guides to judges in their arguments, and such
cases and precedents are good directions in
cases of judgement, for they are demonstra-
tions ot' the course of antiquitie. Whereupon
my judgement shall consist upon reasons polli-
tick, and precedents. The case in Dyer 1.
Bliz. fo. 165. was not like to the case in ques-
tion, but only a conference; and the case there
was for an impost upon cloath, a doincstick
comrnoditie. In this case, are recited their
grievances, but it was paid, and it is denied
here ; but there was no resolution thereof. At
the same time, was the impost of wines in-
creased, and paid, no petition or complaint
thereof. And the customs for England* commo-
dities were at the first imposed by the king's will,
for no statute giveth them, viz. for wool, woolfels
and leather, and it was called the great custom ;
and that it was paid, it will not be denied ; and
yet now it is doubted, if the kine can impose it
upon forraign commodities. The king may
restrain the person, as it is in Fitz. Nat. Br. a
fortiori he may restrain the goods. There was
no custom for home commodities, but the great
custome aforesaid, which was ailer increased
by parliament, which was called the Petit Cus-
tome. It is a great grace in the king to the
merchants, that he will command, and permit
\ tliis matter to be disputed between him and
; his subject, and die most fit place is in this
I court, and the best rales herein are the pre-
!' cedents thereof, and pollitick reasons, which I
shall give, and apply them to the particulars

589] STATE TRIALS, 4 James I. 1606.— on an Irformation in the Exchequer. [390

before racked. And 6rst, for the person of the
king, ' omnis pote^tas a Deo, et non est potes-
4 tas nisi pro bono.' To the king is committed
the government of the realm and bis people ;
and Brae ton saitb, thut for his discharge if his
office, God had given to him power, the act of
government, and the power to govern. The
kings power is double, ordinary and absolute,
mod they have several lawes and ends. That
of the ordinary is for the profit of particular sub-
jects, for the execution of civil justice, the de-
termining of mtum ; and this is exercised by
equitie and justice in ordinary courts, and by
the civilians is nominated jus privatum and
with us, common law : and these laws cannot
bechanced, without parliament; and although
Chat their form and course may be changed,
and interrupted, y<. t they can never be changed
io> substance. The a I -solute power of the king
is not that which is comerted or executed to»
private Use, to the benefit of any particular
person, but i* only that which is applied to the
general benefit or' the people, and is saint po-
jmli ; as the people is the body, and the king
the head ; and this power is guided by the
rules, which direct only at the common law,
and is most properly named Pollicy and Govern-
ment; and as the constitution of this body
varieth with the time, so varieth this absolute
law, according to the wisdome of the king, for
the common good ; and these being general
rales and true as tbey are, all things done
within these rules are lawful. The matter in
question is material matter of state, and ought
to be ruled by the rules of pollicy ; and if it be
so, the king hath done well to execute his ex-
traordinary power. All customes, be they old
or new, are no other but the effects and issues
of trades and commerce with fo'rraigu nations ;
but all commerce and affairs with forrainers,
all wars and peace, nil acceptance and admit-
ting for current forrain coyn, all parties and
treaties whatsoever, are made by the absolute
power of the king ; and he who hath power of
causes, hath power also of effects. No expor-
tation or importation can be, but at the kings
ports. They are the gates of the king, and he
kath absolute power by them to include or ex-
clude whom he shall please ; and ports to mer-
chants are their harbours, and repose ; and for
their better securitie he is compelled to provide
bulwarks, and fortresses, and to maintain, for
the collection of his customs and duties, col-
lectors and customers ; and for that charge it
is reason, that he should have this benefit. He
as also to defend the merchants from pirates
at sea in their passage. Also, by the power of
the king they are to be relieved, if they are op-
pressed by lorruign princes, for they shall have
Lis treaty, and embassage ; and if he be not
remedied thereby, then lex talionis shall be
executed, goods lor goods, and tax for tax.; and
if this will not redress the matter, then war is
to be attempted for the cause of merchants.
In all the kings courts, and of other princes,
the judges in them are paid by the king, ami
' by him to do justice to the subjects,

and therefore he hath the profits of the said
courts. It is reasonable that the king should
have as much power over tbrraigners and their
goods, as over his own subjects ; and if the
king cannot impose upou to i rain commodities
a^custome, as wel as forrainers may upon their
own commodities, and upon the commodities of
this land when they come to them, then forrain
states shall be enriched, and the king impover-
ished, and he shall not have equal profit with
them; and yet it will not be denied, but his
power herein is equal with other states. And
so much for the person of Bate* the subject. It
is said, that an imposition may not be upon a
subject without parliament. ' That the king
mny impose upon a subject, I omit; lor it is
not here the question, if the king may impose
upon the subject or his goods ; but the impost
here is not upon a subject, bnt here it i> upon
Bates, as upon a nit reliant, who imports goods
within this land, charged before by the king ;
and at the time when the impost was imposed
upon them, they were the goods of the Vene-
tians, and not the goods of a subject, nor
within the land, but only upon those which
shall be alter imported ; and so all the argu-
ments, which were made for the subject, fail.
And where it is said, that he is a merchant, and
that he ought to have the sea open and. free
for him, and that trades of merchants and mer-
chandise are necessary to export the surplus of
our commodities, and then to import other
necessaries, and so is favourably to be respect-
ed ; as to that it is well known, that the end
of every private merchant is not the common
good, but his particular profit, which is only
the means which induceth him to trade and
traffick. And the impost to him Is nothing,
for he rateth his merchandise according to
that. The impost is imposed upon currants ;
and he, who will buy them, shall have them
subject to that charge; and. it is a great con-
tempt to 4denie the payment. And so much
for the person. I will give a brief answer to
all the statutes alledged ou the contrary part,
with this exposition, that the subjects and mer-
chants are to be freed of Maletolt ; and this
was toll unjustly exacted by 1/jndon, South-
ampton, and other ports within this realm ;
but they are with this saving, that they pay the
duties and customes, due, or which hereafter
shall be due to the king ; which is a full an-
swer to all the statutes. The commoditie of
currants is no commoditie of this land, but for-
rain. And wherea* it i* said, that it is victual
and*necessary food, it is no more necessary
than wine, and impost for that hath been al-
ways paid, without contradiction ; and without
doubt, there are many drinkers of wine, who
are also eaters of currants. That which should
be said victual for the coinmmi-wealth is that,
which ariseth from agriculture, and of the
earth within this land, and not nice and deli-
cate thincs imported by merchants, such as
these currants are. Tliey are nit her delicacy
or medicine than a victual ; and it is no reason
that so raauy of our good and staple coniiuodi-

39 J ] STATE TRIAI3, 4 James I. 1 (306.— The great Case of Impositions, [392

tics should be exported to Venice for such a
slight delicacy, find that all the impost shall be
paid to the Venetians for them, and the king
should have none for their commoditic : and
although that the price be thereby raised, this
hurteth not the merchant, nor no other, but
only a snoal number of delicate persons, and
those also who are of most able and best

which will not be denied but that he may. So
it may be said, that the' queen may grant a
safe conduct to a stranger ; for if she may do
that, then she may grant to all, w|iich would be
burtheusome to the inhabitants; and yet it
will not be denied but that she may grant to
any or all, as in her wisdome shall seem con-
venient. And the wisdome and providence of

e>tate, for their pleasure. But when the king ! the king is not to be disputed by the subject;
is in want, he is to be relieved by a gcueral i tor by intendment they cannot be severed
imposition or suhsidie upon all the subjects. ; from his person, and to argue apotse ad actum
The iinpoMi ion, which is here, i- said ;o be so to retrain the king and his power, because
great and intolerable us an evil prccedcut. : for, that by his power he may do ill, is no argument
if he may do so much, he may do it in injiniiin.t, lor a subject. To prove the power of the king
and upon all other merchandise, lor the. impo- , by precedents of antiqui'.ie in a case of this
sitiou I say, that it is reasonable, for it i-> no nature may easily be done, and if it were
more than fourc times so mm h than was ' 'lawful in antient times it is lawful now; for the
before; and that there hath I ten as much ' authoritic of the king is not diminished, and
done in antient time in other imposts, a? iu the crown hath the s>ime attributes, that then
that of wooll, which was at first but a uoble a it had. And in antient time such imposts
sack, and is now at 50**. The impo>t of wine were never denied ; and that which is given by
was in antient time 3*. -id. a tun, and n>w '. parliament is not an impost but a Mibbidie.
is foure marks. The lessening of custome and . In antient time small trnilick or intercourse
impost is much to be guided by in tell. pence ! was betwixt the inhabitants of ibis land and
from furrain nations; for the usage and beba- 1 form in nation-, so that the principal custom
viourofa forraiu prince may impose a necis- j was of the commodities of this land, which
sitie of raiding custome of those commodities. ! were wooltVis und leather; and that the cus-
And so it was in the particular of currants. ' tome for wools, which was a noble for a sack,

The duke of Venice imposed upon them a
ducket by the hundred, which by the wisdom
of the state was foreseen to Ik? a mcaus, that

was an imposition, appears by the statute of
the 14th Ed. 3. stat. 1. cap. 21. It is objected!
Unit merchants cannot be restrained, but only

in time will warfe und consume the treasure of j persons suspected, as the writ of ue exeat rcg-
the land; whereupon the queen writ to the j nu.n i»! Hut as it is said in Dyer be lore cited,

duke, that he would abate his custome, which
he refused. Wherefore' to prevent, that so
great a quantitie of this couimoditie. should not
Iks imported into the land, the queen granted

it is without doubt, that the cause is not tra-
versable, and that the king may inhibit any
man ; for if it be not traversable, it is not mate-
rial. And the reason, wl.i refore any man may

to the company of merchants of the levant be restrained, is for the defence of the realm;
that none should bring in currants, but by and it may be done by prii;e seal, privie signet,
tlu'ir licence; and those merchants imposed urea: seal, or proclamati m ; and that appears

upon them who did import, which were not of
their company, if he were denizen b$. if he
were a stranger 10s. And this uus paid by the
merchants without contradiction. But there
was a clause in the patent, that when the duke
of Venice abated Ids impost, that the patent
should be void, and after tin- duke was solicited
again, that Isc would abate the impost, but he
refused, and the first commission wim recalled,
and after a new grant was made, wliich was ex-
ecuted all the queen's life time, whi.-h was as

by the writ of licaicia li-ansportandi in the
register, which contained! licence for one to
travail, r.nd limits him to what place he shall
go. and when he shall return, and with what
goods, so thai the kin^ may prohibit body and
UimkU. And when a man is beyond the seas,
the km;: mav command him to return ; and if
h? doth not obey such command, he shall for-
feit his goods. Now- for icstraiut of commodi-
ties many prcccdcits are to prove it. In the
rime of 11. '>. and E. 1. it was forbidden,

aforesaid. And whereas it is said, that if the j that the wos.ll should be transported into Flun-
king may impose, he may impose any qusiuiuic ■ dcrs; and in E. 1. a commission was awarded
wlnt he pleases, true it is, that this is to be re- to enquire, who had fioac against this onli-
1 erred to the wisdom of the king, who guidctli nance, and the pood* of one Frees ton were
all under God by his wisdome, and this is not i seized: and thc-i -lore an attachment awarded
to be/lisputed by a subject; and many liiiu^s- i H»;aiu-t the ships of Hull, for transporting con-
are left to his witdomu for the or:hrin^ of hi** ; ti;«ry to die ordinance. In the 'i'l E. 1. itwnt
power, radar than his power sh.dl be re- train- Un hidden, that no merchant should trade with
cd. The kinz m.'v pardon any iV Hon; but it ! IVa.io: !or trade widi forraiuers is a forr.iin
inriy be objected, tint if ho pardon one. fvllon J thi;-.', whHi i*. only uii rrcd to the kim*. In
he may pardon all, to the damage of the com- th.- 1? ii. e. ail men bants were forbidden to
ni'*n-\vca!rh; and vcr none w ill doubt, but that import wares from Flanders into this hind ;
is Id!, in h:s v.i*ii,.|,.c. A.id a«i the king may and the citiizens of 1/mdon complained of
grant ;: proteedou for one year, to it may be certain merchants, which had done contrary to
fcidd. that he tuny grautit for many ycurs, which this onlinance to the lords of the privie councel,
is a mischief, and so ouyht to" grant none, which I have here ready ; for the record men-

tions it, and the kings attorney was commanded
to exhibit an information against the mer-
chants, which he did : and they pleaded that
die proclamation was made here upon Easter
ere, and that they were then at Bruges, and
upon the Wednesday after Bruges market they
bought the wares before notice ef the proclama-
tion, and before it were possible that they
could have notice of it, and pray judgement,
&c And so much for restraint of the person
aid goods. • By the statute of 31 £. 3. cap. 8.
times were appointed in which wools sliould be
transported ; and also cap. 9. authoritie was
given to the chancellor and treasurer, to defer
the passage at their pleasure. But that this
was the common law, and thai the king by his
supream authoritie might do it, it seems to me
it is apparent 'by the statute of the 26 H. 8.
cap. 10. which gives power to tfce king by liis
letters patents, to limit the time for importing
of wines against the statute of 93 H. 8. can. 7.
which was no more but a restoring or his
power abridged before ; and to was die statute
of 31 £. 3. tor otherwise the parliament would
never have given him authoritie to contradict
ao act of parliament by his letters patents, or
to revive these acts. Impositions are merely
a new cusjoine. And so are they stiled in the
margent of the roll of the 3 E. 1. in this court,
where it is recorded, that the king had assigned
merchants to receive (using the same words
which are used here) half a mark for every
sack* of wool, and a mark of every last of
leather, and that if the mercliant, who is so
appointed, transport any after, it shall be for-
feited ; and out of this record I observe, that
three hundred pelts make a sack of wool. From
the 21 Ed. 1. unto the 28 E. 1. the customs
for wools was 40f. a sack, and in 25 E. 1. the
imposition of Maletolt was repealed by act of
parliament, which Maletolt was an increase of
impo>t upon staple commodities; and therefore
was given to the king a great subsidie with this
cause, that it should never be drawn into pre-
cedent ; which shews, that this Maletolt was
rightly imposed, otherwise the parliament would
never have given him so great a recoiupence for
the abrogation of it. But after in the 13 of E.
3. because it was a thing of so great conse-
quence to the crown, it was revived and made
40*. for wool, and woolfels, and 3/. for lea-
tatr for denizens, and double for strangers. In
rhe 14 Ed. 3. a petition in parliament to abate
tf ; and for a great subsidie it was rclenM'd ; and
io the 18. of Ed. 3. it was again revived, and a
new petition was made in parliament, and this
petition was continued until the 36 Ed. 3. and
then it was abated ; and also by the 45 E. 3. it
was igain abated ; so that it seems, that be-
tween these times it was revived; huiul'ttr it did
uot continue long, for in 48 E. 3. it was again
retired, and for wool the impost was 50*. vt sic
He nuftmtis, and in 1 R. S. after it was unswer-
rd to the king, as it appears in the accompt?
here, and in 5 ft. 2. it was again suppressed bv
parliament for a subsidie ci anted to the king
with a saving of antient rights. All these sta-

-0R an htformat'um in the Exchequer. [394

tutes prove expresly, that the king had power
to increase the impost, and that upon commo-
dities of the land, and that he continually used
this power notwithstanding all acts of parlia-
ment against it. And so much for commodities
of this land. But for forrain commodities it
appears by no act of parliament, or other pre-
cedent, that ever any petition or suit was made
to abate the impost of forrain commodities, but
of them the impost was paid without denial.
As for example, for wines in the 16 E. 1. as
appears in this court upon record, it was com-
manded to the bailiff of Dover to levie and col-
lect of every tun of wine of a stranger 4*. and
io the 99 E. 1. 2f. thereof waa released, at
the suit of the French ambassador. In the 26
of E. 3. the king granted priviledges to mer-
chants strangers; but there was given for it an
tucrease of custome ; and this was answered as
it appears upon accompt in the times of E. 1.
and E. 9. The case of Allom was as it hath
been recited by my brother Clark. It is ob-
jected, that the merchants ought to have free
passage upon the sea ; hot that doth not con-
clude the king, but that he shall have his im-
post if he Cometh into his ports, and here the
question is for merchandise after that they are
brought into the port. But it is said, that they
cannot come into the port but by the sea. That
is true ; but if this reason should hold, then the
king could not grant murage, pontage, and the
like, because the common channel to them is
free, and average is for securitie as wel as ports.
Another objection, that the defendant here is
not restrained ; but that is answered, for if a
pain be inflicted upon them who import, this is
an inhibition upon a pain to all. Another ob-
jection was, that there was no consideration of
the imposition ; and if it be demanded what
differences between the cases, I answer, as
much as is between the king and a subject ; and
it is not reasonable, thut the king should ex-
press the cause and consideration of his r.ctions,
for they are arcana regit, und no satisfaction
needeth, for if the profits to the merchant r'ail-
eth he will not trade, and it is for the bene (it of
every subject, that the kings treasure should be
increased. An objection was made against the
form of proceeding; because it was by the
great seal to the treasurer, and that he by the
customers pit fret et rciiperct ; and this could
not be better, o.s it was answered before. It
was oV.jected that it should be by proclamation;
and thntneedsnot, for ft totichr'h not all l he sub-
ject?, but only those who are traders in merchan-
dising, aiui the l>cst and nptct means to pive
them notice is by the customer*, and it isalledped
by the information exprc?ly. that lie had notice.
It was lastly objected, that there ought to he a
qh-oil damnum in the case before the grant. That
is not so; for that shall be only when the king
granteth any thine; which appertained to his
prerogative, and not when he makelh charters
to his servants to levy his duties due to his
crown. Wherefore I think, that the king ought
to Im vp judgment: which waa after given ac-
cordingly.

395] STATE TRIALS, \ Jambs I. If306\— The great Case qf Impositions, [396

Argument of Sir Francis Bacon, the King's Soil ici tor, in the Lower House of Parlia-
ment, in 1610, for Impositions by the Crown ; from volume ii. of the last 4to
edition of his Works, p. 223.

And it please you, Mr. Speaker, this ques-
tion touching the right of Impositions is very
great ; extending to the prerogative of the king
on the one part, and the liberty of the subject
on the other ; and that in a pbint of profit and
value, and not of conceit or fancy. And there-
fore, as weight in all motions increaseth force,
so I do not marvel to see men gather the great-
est strength of argument they can to make good
their opinions. And so you will give me leave
likewise, being strong in mine own persuasion,
that it is the king's right, to shew my voice as
free as my thought. And for my part, I mean
to observe the true course to give strength to
this cause, which is, by yielding those things
which are not tenable, and keeping the ques-
tion within the true state and compass ; which
will discharge many popular arguments, and
contract the debate into a less room. »

Wherefore I do deliver the question, and ex-
clude or set by, as not in question, five things.
First, the question is de portorio, and not de
tributo, to use the Roman words for explana-
tion sake ; it is not, I say, touching any taxes
within the land, but of payments at the ports.
Secondly, it is not touching any impost from
port to port, but where clave* regni, the keys of
the kingdom, are turned to let in from foreign
parts, or to send forth to foreign parts ; in a
word, matter of commerce and intercourse, not
simply of carriage or vecture. Thirdly, the
question is, as the distinction was used above
in another case, de vcro etfalso, and not de bono
et maloy of the legal point, and not of the in-
convenience, otherwise than as it serves to de-
cide the law. Fourthly, I do set apart three
commodities, wools, wool fells, and leather, as
being in different case from the rest ; because
the custom upon them is antiqua cuttumu.
Lastly, the question is not, whether in matter
of Imposing the king may alter the law by his
prerogative, but whether the king have not such
a prerogative by law.

The state of the question being thus cleared
and freed, my proposition is, that the king by
the fundamental laws of this kingdom hnth a
power to impose upon merchandise and com-
modities both native and foreign. In my proof
of this proposition all that I shall say, be it to
confirm or confute, I will draw into certain
distinct heads or considerations which move me,
and may move you.

The first is an universal .negative. There
appeureth not in any of the king's courts any
one record, wherein an imposition laid at the
ports hath been overthrown by judgment ; nny
more, where it hath been questioned by plead-
ing. This plea, ' quod summa praedicta roi-
• nus juste im[>osita fuit, et contra leges et con-
' suetudines regni hujus Anglhe, unde idem
1 Bates illani solvere rccusavit, prout ei bene

' licuit,' is prim* impression** Bates was the
first man no origine mundi, for any thing that
appeareth, that ministered that plea ; where-
upon [ offer this to consideration. The king's
acts that grieve the subject are either against
law, and so void ; or according to strictness of
law, and yet grievous. And according to these
several natures of grievance, there be several
remedies. Be they against law ? Overthrow
them by judgment. Be they too straight and
extreme, though legal ? Propound them in
parliament. Forasmuch then as impositions at
the ports, havtofe been so often laid, were never
brought into the king's courts of justice, but still
brought to parliament, I may most certainly
conclude, that they were conceived not to be
against law. • And if any man shall think that
it was too high a point to question by law
before the judges, or that there should want
fortitude in them to aid the subject ; no, it
shall appeare from time to time, in cases of
equal reach, where 'the king's acts have been
indeed against law, the course of law hath run,
and the judges have worthily done their duty.

As in the case of an imposition upon linen
cloth for the alnage ; overthrown by judgment.

The case of a commission of arrest and com-
mitting of subjects upon examination without
conviction by jury, disallowed by the judges.

A commission to determine the right of the
exigenter's place, secundum sanam ditcretioncm,
disallowed by the judges.

The case of the monopoly of cards overthrown
and condemned by judgment.

I might make mention of the jurisdiction of
some courts of discretion, wherein the judges
did not decline to give opinion. Therefore,
had this been against law, there would not
have been altum silentium in the king's courts.
Of the contrary judgments I will not yet speak ;
thus much now, that there is no judgment, no
nor plea against it. Though I said no more,
it were enough, in my opinion, to induce you
to a non liquet, to leave it a doubt.

The second consideration is, the force and
continuance of payments made by grunts of
merchants, both strangers and English, without
consent of parliament. Herein I lay tins
ground, that such grants considered in them-
selves arc void in law : for merchants, either
strangers or subjects, they are no body corpo-
rate, but singular and dispersed persons ; ihey
cannot hind succession, neither can the major
part bind the residue : how then should their
grants have force? No otherwise but thus;
that the king's power of imposing was only the
legal virtue and strength of those grants ; and
that the consent of a merchant is but a con-
currence, the king is principal e agens, and they
are but as the patient, and so it becomes •
binding act out of the king's power.

397] STATE TRIALS, 4 James I. 1606.— on an Information in the Exchequer. [39$

Now if any man doubt that such grants of
merchauts should not be of force, I will alledge
but two memorable records, the 6ne for the
merchants strangers, the other for the mer-
chants English. That for the strangers is upon
the grant of Chart. Mercator. of three pence in
value ultra antiques custumas ; which grant is
in use and practice at this day. For it is well
known to the merchants, that that which they
call stranger's custom, and erroneously double
custom, is but three pence in the pound more
than English. Now look into the statutes of
subsidy of tonnage and poundage, and you
shall find, a few merchandise only excepted,
the poundage equal upon alien and subject ;
so that this difference or excess of three

rce hath no other ground than that grant,
failed) to be the same in quantity ; there
is no statute for it, and therefore it can
hare no strength but from the merchants
grants; and the merchants grants can have
no strength but from the king's power to
impose.

For the merchants English, take the notable
record in 17 E. 3. where the commons com-
plained of the 40s. upon the sack of wool as a
mal-toll set by the assent of the merchants
without conseut of parliament ; nay, they disr
pate and say it Were hard that the merchants
consent should be in damage of the commons.
What saith the king to them ? Doth he grant
it or give way to it? No; but replies upon
them, and saith, it cannot be rightly construed
to be in prejudice of the commons, the rather
because provision was made, that the mer-
chants should not work upon them, by colour
of that payment to increase their price ; in that
there was a price certain set upon the wools.
And there was an end of thut matter : which
plaioly arfirmcth the force of the merchants
grants. So then the force of the grants of
merchants both English and strangers ap-
peared) ; and their grants, being not corporate,
are but noun adjectives without the king's
power to impose.

The third consideration is of the first and
most ancient commencement of customs ;
wherein 1 am somewhat to seek ; for, as the
poet saith, ' iugrediturque solo, et caput inter
' nubila condit,'. the beginning of it is obscure :
but I rather conceive that it is by common law,
than by grant in parliament. For, first, Mr.
Dyer's opinion was, that the ancient custom for
exportation was by the common laws; and
goeth further, that that ancient custom was the
custom upon wools, woolfells, and leather. He
was deceived in the particular, and the dili-
gence of your search hath revealed it ; for that
custom upon these three merchandises grew by
grant of parliament 3 E. 1. But the opinion in
general was sound ; for there was a custom
before that : for the records themselves, which
speak of that custom, do term it a new custom,
• alentour del novel custome,' as concerning the
new custom granted, ore. This is pregnant
there was yet a more ancient. So for the
Strangers, the grant in 31 E. 1. Chart. Merca-

tor. is, that the 3d. granted by the strangers
should be ultra antiquas custumas, which hath
no affinity with that custom upon the three
species, but presupposeth more ancient cus-
toms in general. Now if any man think,
that those more ancient customs were like-
wise by act of parliament, it is but a con-
jecture. It is never recited ultra antiquas
custumas prius concessus, and acts of parlia*-
ment were not much stirring before the Great
Charter, which was 9 H. 3. And therefore
I conceive with Mr. Dyer, that whatsoever
was the ancient custom was by the common
law. And if by the common law, then what
other means can be imagined of the commence-
ment of it but by the kingvs imposing ?

The fourth consideration is of the manner
that was held in parliament in the abolishing of
impositions laid : wherein I will consider, first,
the manner of the petitions exhibited in parlia-
ment ; and more specially the nature of the
king's answers.

For the petitions I note two things'; first,
that to my remembrance there was never any
petition made for the revoking of any impo-
sition upon foreign merchants only. It pleased
the Decemviri in 5 E. 2. to deface Chart. Mer-
cator. and so the imposition upon strangers, a*
against law. But the opinion of these reformers
I do not much trust, for they of their gentle-
ness did likewise bring iu doubt the demy-mark,
which it is manifest was granted by parliament,
and pronounced by them the king should have
it, s'il avoit It droit : but this is declared void
by 1 E. 3. which reneweth Chart. Mercator.
and void most it needs be, because it was an
ordinance by commission only, and that in the
time of a weak king, said, never either
warranted or confirmed by parliament. Se-
condly, I note that petitions were made pro-»
miscuously for taking away impositions set by
parliament as well as without parliament ; nay,
that very tax of the neufiesme, the ninth sheaf
or fleece, which is recited to be against the
king's oath and in blemishment of his crown,
was an act of parliament, 14 E. 3. So then to
infer that impositions were against law, because
they are taken away by succeeding parliaments,
it is no argument at all ; because the impo-
sitions set by the parliaments themselves, which
no man will say were against law, were never-
theless afterwards pulled down by parliament.
But indeed the argument holdeth rather the
other way, that because th^y took not their
remedy in the king's courts of justice, but did
fly to the parliament, therefore they were
thought to stand with law.

Now for the king's answers. If the impo-
sitions complained of had been against law,
then the king's answer ought to have been
simple, tanquam rcsponsio categorica, non hypo-
thetica ; as, let them be repealed, or, let the
law run. But contrariwise, they admit all
manner of diversities and Qualifications : for,
Sometimes the king disputetn the matter and
doth nothing ; as 17 E. 3. Sometimes the king
distinguished! of reasonable and not reejpu*

309} STATE TRIALS, 4 James I. 1 6<>G\— The great Case of Impositions, [400

mont of custom by giving the money to the in-
former, and the like.

Now in special tor the statntes of subsidies of
tonnage and poundage, I note three things.
First, that the coi^ideratiun of the grant is not
laid to be for the restraining of imposition, hue
expressly for the guarding"©!* the sea. Second-
ly, that it is true, that the ancient form is
more peremptory, and the modem more sub-
miss, for in the ancient form sometimes
they insert a flat condition that the lung
shall nut further impose; in the latter they
humbly pray, that the merchants may be de-
meaned without oppression, paying those
rates. But whether it be supplication, «r whe-
ther it be condition, it rather implieth the king
hath a power ; for else both were needless, for
' conditio annectitur ubi libertas pnesumiter/
and the word oppression seemeth to refer to
excessive impositions. And thirdly, that the
statutes of tonnage and poundage are but cunnt-
lativt and not privative of the king's power
precedent appcareth notably in die three-
pence overplus, which is paid by the merchants
strangers, which should be taken away quite,
if those statutes were taken to be limitations ;
for in that, ns wa9 touched before the rates arc
equal in the generality between subjects and
strangers; and yet that imposition, notwith-
standing any supposed restriction of these acts
of subsidies of tonnage and poundage, reniain-
eth at this day.

The sixth consideration is likewise to an ob-
jection, which ismatter of practice, viz. that from
R. 2. 's time to Mary, which is almost 200 years,
there was an intermission of impositions, as ap-
pcareth both by records and the custom-books.

To which I answer; both that wc have in
effect an equal number of years to countervail
them, namely, 100 years in the time of the
three kings Edwards added to 60 of our last
years ; and cxtrcma obruunt media ; for we
have both the reverence of antiquity and the
possession of the present times, and they but
the middle times. And besides, in all true
judgment there is a very great difference be-
tween an usage to prove a thing lawful, and
a non-usage to prove it unlawful : for the prac-
tice plainly implieth consent ; but the discon-
tinuance may be, either because it was not
needful, though lawful; or because then* was
found a better means, as I think it was indeed
in respect of the double customs by means of
the staple at Calais.

able, as 38 E.3. Sometimes he abolisheth them
in part, und letteth them stand in part, as 1 1
E. 2. the record of the mutuum, and 14 E.
3. the printed statute, whereof I shall speak
more anon. Sometimes thut no* imposition
shall be set during the time that the grants
made of subsidies by parliament shall conti-
nue, as 47 E. 3. Sometimes that they shall
cease ad voiuntatem nostrum. And sometimes
that they shall hold over their term prefixed
or asseissed.

All which sheweth, that the king did not
disclaim them as unlawful, for acttts legitimvs
non rceipit tempus out cdnditioncm. ' If it had
been a disaffirmance by law, they must have
gone down in solido ; but now you see they
have been tempered aud Qualified as the king
saw convenient.

The fifth consideration is of that which is
offered by way of objection ; which is, first,
that such grants have been usunlly made by
consent of parliament ; and secondly, that the
statutes of subsidies of tonnage and poundage
have been made as a kind of stint and limi-
tation, that the king should bold himself unto
the proportion so granted and not imposed fur-
ther; the rather because it is expressed in
some of these statutes of tonnage and pound-
age, sometimes by way of protestation, and
sometimes by way of condition, that they shall
not be taken in precedent, or that the king
shall not impose any further rates or novelties,
as 6H.2.9 It. 2. 13 H. 4. 1 II. 5. which sub-
sidies of tonnnge and poundage have such
clauses and cautions.

To- this objection I give this answer. First,
that it is not strange with kings, for their own
better strength, and the better contentment or"
their people, to do those things by parliament,
which nevertheless have perfection enough
without parliament. We see their own rights
to the crown which are inherent ; yet they
take recognition of them by parliament. And
there was a special reason why they should (\o
it in this case ; for they had found by ex|>eri-
ehce, that, if they had :i«»t consent in parliament
to the setting of them up, they could not have
avoided suit in parliament for the taking of
them down. Besides, there were some things
requisite in the maimer of tin- levy for the
better strengthening of the same, whirl) pcrcasc
could not be done without parliament ; as the
taking the oath of the party touching the
value, the inviting oft lie discovery of conceal-

Transcript of part of Sir John Davis's Manuscript Argument for Impositions by the
Crown, from Carta's History, vnl. ir. p. 1<)I. — [Fiom the Title to the printed
Treatise by Sir John Davis on the same Subject, it appears to have been written
the latter end of the reign of James the Tirol.]

The king is the. fountain of all justir?, as I s-inal within the land, but to his merchants
well commutative as distributive. The first is ] aUo, who trade with foreign nations, and to
exercised chiefly in the ordering and govern- -rr.nrj^rp v ho trailick in his dominions. For
inent of trade and commerce; wherein he is to the administration of commutative justice
do justice, or procure it to be done, not only to within (he Lmd, the king receives various pro-
hii subjects who make contracts real or per- fits, which grew first by way of imposition ; as

401] STATE TRIALS, 4 James I. 1606— on an Information in the Exchequer. [402

fines for original process to recover debts, fines
for passing lands from one to another in his
courts, and in common recoveries, and the sil-
ver pro liccntia concordajtdi, the profits of the
seals in his courts tor ail manner of writs, &c.
nor is the taking of these and the like duties
any breach of Magna Charta; haying been
it i. posed by the king long .Before that charter
was made, and taken as a recom pence for the
charge of the crown in maintaining the courts
r>f justice. There is the same reason for his
charge in doing justice, and procuring justice
to be done abroad to merchants, whose com-
merce is for the must part out of the land, be-
ing re compcti ced out of the merchandizes ex-
ported and imported, not according to the will
of the merchant, or the pleasure of the people,
but in proportion to the king's charge, which
being best known to himself, it is fit that the
recom pence shoold be fixed by himself. All
leagues, truces, and treaties of state, with fo-
reign princes, in which the public trade and
commerce* of merchants is ever included, are
made and concluded at his charge ; he main-
tains a court of admiralty for deciding all ma-
rine causes, which generally concern mer-
chants ; his council of state is applied to, in
case of injuries contrary to the 6ense of trea-
ties ; he is at vast expence in keeping resident
embassadors in different courts, chiefly for pro-
curing justice to be done our merchants ; and
in case of their being wronged and denied jus-
tice abroad, the king, by his prerogative, grants
them letters of marque or reprisal, to right
themselves; and if those injuries are multiplied
w continued with an high hand, it is his office
directly to denounce and make war on iuch
prince or state, as refuses to do justice to his
merchants. So king Charles had lately done
■gainst France. It was for this cause, as Ap-
pian says, the Romans began the first Punic
war ; and Cicero (a) affirms, that they fre-
quently waged war for the injurious treat-
ment of their merchants. The making of
war and peace is an undisputed preroga-
tive, of* the crown: he maintains a fleet, to
protect merchants from spoil and piracy (b)
(which the Romans thought a just reason for
customs) at a charge too great to be defrayed
by the poundage laid by Edward 1. at the rate
of three-pence, though silver being then at
twenty pence an ounce, the groat was intrinsi-
cally worth near a shilling, and it .being levied
at this last rate, in the time of Edward 4. (c)
was found insufficient for the maintenance of
his navy. The flow of money from the East
and West Indies vastly enhanced the price of
merchandize, and the charges of the crown, as
well in all other articles as in that of the royal
navy. Hence arose a necessity of new impo-
sitions, it not being fit, that the king's charges,
in supporting the trade of merchants, should
be unlimited and infinite, and the duty on

(a) Orat. pro lege Manilla.

(b) Pliny's N. JI. lib. xix. c. 4.
(e) Stat. 12 Ed. 4. c. 5.

VOL. II.

merchandize be stinted and restrained to such
a proportion only as the subject shall he pleas-
ed to grant him. Subjects may live as privately
as they please ; but a king, by reason of the
majesty of his estate, cannot well abridge his
charge, and would be in a poor situation, if he
had no power of himself, without their leave,
to improve his rcveuue.

As he protects the merchants, and gives them
convoys at sen, he grants them sate- conducts
atr.land (no other being allowed by the law of
nation*, or acknowledged by Magna Charta)
and receives their ships into his harbours. The
king is the cuttos, or guardian, of the whole
realm, but he is more particularly lord of the
ports, not only of the Cincjne ports, where he
appoints a warden to exercise uis jurisdiction,
but of all the rest in the kingdom; and our
kings have ever enjoyed the prerogative of
opening and shutting them at their (pleasure.
In the reign of Edward 3. great part whereof
was spent in war, there are several petitions in
the rolls of parliament for opening the sen,
when it was shut by his prerogative: yet he
never opened it again, without laying an extra-
ordinary imposition upon merchandize. This
prerogative was founded on excellent reason ;
for commerce is not to be held with all persons.
Else enemies might discover the secrets of the
realm, and corrupt religion or rlie manners of
the people. Nor are all things fit to be ex-
ported, particularly such as the kingdom cannot
spare, or may be of advantage to the enemy,as
corn in a time of dearth, warlike stores in war,
&c. Embargos are of the same nature with the
stopping of port?, and equally appropriated to the
king, being an incident annexed to his prero-
gative of making war and peace. When war
is denounced, all trade is stopped between the
nations engaged therein ; and if a king can
stop it, he mu9t of course have a power to open
it, and lay reasonable impositions on merchants
for doing so. It is a rule in law, he that may
do more may do less ; and he, that can forbid
people to trade or pas* at all, may dispense with
the prohibition, and give them leave to traffick
under certain conditions. Our kings have for-
bid (d) trade, sometimes generally, sometimes
between us and particidar nations, sometimes
■for particular merchandizes only; of all which
there arc examples enough in our records and
histories. All compauies of merchants are in-
stituted by the king; and hethatgiv.es their
privilege* may likewise prescribe the terms,
on which they are to enjoy them, exclusive of
others. The king is lord of the sea about this
island, not only as to jurisdiction and protec-
tion, but as to property (e). Hence all laud

(d) See Rot. Pari. 2 Ed. <l. m. 18. Rot.
Fin. '2 E. 3. in. 17. Cluus. 10 Ed. 3. in. 3. d.
17 II. 6. in Scacc.

(e) So Bald us affirms, ' Do jure gentium,
' distincta esse dominia in mari, sicut in term
« aridn — mare attrihuitur terra? circumstauti. —
*- Pedagium in mari debet solvi, sicut in terra.

si ^it impositQin per dominuin mari*;' and
2 n

403] STATE TRIALS, 1 James I. 1 006.— The great Case qf Impotitions, [40*

drained from the sea belongs, by the common
law, to the crown (as Stanford (f) says) de
jure gentium ; and all seas belong to the next
potentate, at least so long as they arc formid-
able, and all navigable rivers, being like arms,
of the sea, so far as the tide rlowcth. Hence,
antecedent to any statute, the king (») might
restrain all his subjects, of what quality soever,
from going beyond sea, as Edward 1. did in the
22d year of his reign; and the like prohibi-
tions were (h) nlade in those of his successors.
If he allows merchants to pass to and fro, to
come in and out of his streams and potts, he
may certainly prescribe the conditions, and
what duties they shall pay. Trade was carried
on by the English many hundreds of years,
before there was such a thing known as an
bouse of commons : it was carried on with so
great profit, that our riche3 served for admira-
tion to other nations, even to the Normans at
the time of lite conquest: but if our kings had
not the same authority as other princes, both
in commerce, and in Impositions, it could never
have been carried on with advantage. They
could not without it have held the balance of
trade upright, or have preserved an equality
between their own subjects and foreigners.
Our neighbours might otherwise drain off all
our w ealth, and ruin our trade at their plea-
sure : and their princes, having the sole right
to lay impositions, might manage the market
so, that their subjects should sell dear, and buy
cheap, unless our kings had the same powers
fo prevent the ill effects of their measures, and
the ruin of our commerce. Thus when the
state of Venice laid a ducat upon every hun-
dred weight of currants carried out of their
dominions by the English merchants, queen
Elizabeth, by a special I patent, in the K'th
year of her reign, enabled her merchants trad-
ing to the Levant, to levy a noble upon every
hundred weight of currants brought into Eng-
land by any merchant stranger. Thus when
the Hanse Towns had got the emperor to banish
all English merchants out of Germany, the
same queen caused their house called the Steel-
yard to be seized, forbade them to trathek with
any of her subjects, and ordered their mer-
chants to quit England, the same day that the
English were to depart out of the empire^
Nothing is more evident, than the necessity of
our kings having the same power, in imposi-
tions as well as commerce, as other princes;
they always exercised it well, and there was no
danger of their abusing it, whilst the best part
of their revenue depended thereon : and who-
ever will consider, how light, easy, reasonable,
and calculated for the benefit of trade, the im-

other learned civilians assert, that the lordship
of the sea contains in it, ' Jul navigandi, jus
* piscandi, et jus impoueudi vectigalia pro
4 utroque.*

(f) Book of Prerogative of the Crown.

(g) 2'Z Assis. p. 93. Dier. 119. a. See
Writs.

(h) 4 £. S. ftl £. 3. 10 R. 9. 17 H. 6.

positions of our kings were, must be allowed an
uncommon measure of public spirit, if he is
very fond of the cliange into heavier, because
they are parliamentary impositions.

These are some of the reasons that may be
assigned for the royal prerogative in point of
laying impositions, which all monarchs enjoyed
by the law of Nations, and which the civd law
considered as so inherent in the scepter, that it
could not be taken away without the.destruc-
tion of fhe scepter. In hict, it had been always
exercised in this island ; the British princes,
whose territories were situated on the sea, laid
(as Strabo says) heavy duties on the native
commodities, which the Gaulic merchants
transported hence to their own country ; and
some pieces of the tribute money paid to
Cunobeline, with his image and superscription,
are still preserved. The Romans laid the like
impositions; the power of laying them was
incident to the imperial authority; and when
the empire was over-run by the Goths and other
northern nations, the princes thereof succeeded
to, and exercised the same right, in all the
countries which they conquered. The Saxon
kings did the same here: and even Magna
Charta attests, that there were ancient and
right customs paid by merchants, before the
making of that charter, and before an house of
commons was in being. These customs were
indeed but small; such as half a mark on a
sack of wool, or 300 woolfclls, a mark on a last
of leather, those on tin and lead -were propor-
' tionably easy : and when king John laid 8^. a
ton on wine; and Edward 1. in his Carta Mer-
catoria, laid 3d. in the pound upon merchan-
dize imported by strangers, generally called the
petit custom, with an increase of all other
duties on them : the one was as much a ton-
nage, and the other a poundage, as if higher
rates had been imposed : and the question is
only about the king's right in the thing itself,
not about the quantum of the imposition. Nor
was the difference in point of the rate or quan-
tity any tiling considerable, fur a poundage of
3d. in those days was more worth to the crown,
than that of a shilling now ; and the duty of two
shillings a tun upon all wine imported by
strangers (which Edward 1. imposed by the
same charter) was, each shilling weighing then
as much as three now, double the value of the
present tonnage. Those who were for stripping
the crown of this branch of its authority, ob-
jected to Edward's charter in this point, that it
was suspended by his successor's writ (i) in
the 3d year of his re ign, and in the 5tb repeal-
ed (k) by ordinance: but this was done not
by the king and parliament, but by certain
rebellious barons, who assumed the government
of the realm, and called themselves Ordainers.
It is well known, how turbulent a reign this
w:w, and how weak a prince sate upon the
throne, scarce ever master of liimself, and so
distressed by this \ iolence of the barons (several

(i) Claus. 3. E. «. m. 83.
(k) Hot. Ordinal. 5 E. 2.

405] STATE TRIALS, 4 James I. 1606.— on an Information in the Exchequer. ' [406

of whose ordinances were treasonable) that he
was forced to take by large sums of money by
way of loan (I) from the merchants, which being
never repaid, the merchants received thence
greater detriment, than they would have done by
paving double the poundage imposed by his
father. But no sooner did Edward 3rd get pos-
session of the crown, than (m) he revived his
grandfather's charter, and ordered by his writs,
the poundage and other customs therein con-
tained to be levied to his use, notwithstanding
the ordinances made, not by the king his Father,
but per quosdam magnates.

Edward 3. was a great prince ; and being
embarked in expensive wars during the most
part of his reign, he put extraordinary duties,
sometimes of 4*. sometimes 5s. upon wool, and
the like upon other commodities. This gave
occasion to several petitions of the commons
in parliament, upon which a greater stress hath
been laid than they deserve. It doth not ap-
pear, that these petitions were of right, but ra-
ther of grace and favour; they are far frdm in-
ferring, either that the people had received
wrong, or that the king had no right to lay im-
positions. It never behoved any prince more,
than Edward, to be well with his people, to
whom be was obliged to apply every year for
the support of his wars ; he was infinitely care-
ful in this respect : and his answers to their
petitions were generally gracious, but wary and
circumspect. On some heads he was silent;
on others, his answers were general or doubt-
ful ; sometimes he granted them in part, for a
certain time, and on condition he received a
greater recom pence ; nor did he ever remit any
imposition, without receiving a subsidy of more
considerable value. In his 14th year, (n) the
Commons prayed him not to take above the
half mark on a sack of wool, nor more than the
old customs on lead, tin, and leather. In his
answer, he granted their request, not for tin or
lead, but only for wool and leather ; yet this
pace was not to take place, till after the Whit-
tootide to come twelvemonth; it was granted
hot in part, to Englishmen only, not to foreign
merchants : and yet though all these new im-
positions were to continue for above a year, he
got a parliamentary grant, not only of 20,000
sacks of wool, but of the 9th lamb, the 9th
ieece of wool, and the 9th sheaf of corn, of all
persons, both clergy and laity, throughout the
kingdom. In his 29th year, (o) the commons
wanting to get the 40s. duty, laid on a sack of
wool, to be taken off, it was agreed in parlia-
ment, that the king should have a greater sub-
sidy out of wool and leather for six years, * so
is, daring that time, he laid no other imposi-
tion or charge upon the commons.9 This is
evidently a conditional agreement, (p) and the

(I) Rot. Fin. 11 E. 2. m. 12.
(m) Rot. Fin. 2 E. X m. SO.
(n) Rot. Pari. 14 E. 3. c. SI.
(a) Rot. Pari. 29 E. 3. n. 11.
(p) The like conditional agceements were
mde in 0 £. 3. Rot. Perl. n. 4. 13 £. 3. Rot.

people would scarce have bought it so dear, if
the king had not a right to lay them; and if he
suspended his power of imposing for six years,
it was in consideration of a recom pence of
greater value. The punishments of lord La-
timer, John Pechy, and Richard Lions, in the
50th of this king, when through age and grief
at the Black Prince's death, he was become
weak, sickly, languid, melancholy, and almost
stupid, made as little to the purpose of those
who urge them against the royal power in im-
positions. Pechy had got a patent, that none
should sell sweet wines in the city of London,
but himself, his deputies, and assigns; and
under colour thereof, extorted ten groats for
every pipe of sweet wines sold by others within
the city- it doth not appear that he had any
warrant for it from his patent, and his beiiig
punished for abusing it, and doing the things
of his own head, is no argument against the
king's right of laying the like imposition. La-
timer had, of his own authority, laid several
impositions on merchandize at Calais, to the
great decay of the staple there. lie had like-
wise played the stock-jobber in buying the
debentures, tallies, and ticqueis, due from the '
king to his soldiers and pensioners, at a great
discoinpt, giving very little to the parties, and

{ret, in deceit of his majesty, had an entire al-
owance for them in* the Exchequer. He had
also defrauded the king of the pay sent to his.
forces in Bretagne, bad sold a large quantity
of provisions for his army there, converting the
money to his own use ; and had delivered up
the towns of S. Sauveur in Xorm&ndie, and
Becherel in Bretagne, to the enemy, not with-
out the suspicion of corruption and treason.
He was censured for all these crimes in the
gross, so that nothing can be drawn thence t
against the right of the crown in laying impo-
sitions on merchandize ; especially since La-
timer was charged with laying the impost at
Calais, without any warrant, and purely of his
own authority. Lions, a farmer of the cus-
toms, was accused (q) of setting on wool and

Pari. n. 5. 18 E. 3. Rot. Pari. n. 20. 36 E. 3.
Rot. Pari. n. 26. In 25 E. 3. Rot. Pari. n.
25, 26, 27, the commons petition against
an excessive imposition on woolfeils, and de-
sire that only the old custom be paid : the
king's answer was, ' Ancient customs ought
not to be withdrawn.' In 38 E. 4. (Rot. Pari,
n. 26.) they petitioned for the repeal of an
imposition of ten groats on every sack of
wool at Ciilais, and of all unreasonable impo- ;
sitions; an answer was given to the last of
these points, but none at all to the former. In
/> E. 3. (Rot. Pari. n. 4.) on a petition for the
remitting of impositions, the king said, ' He
would assess no such talliages for the future,
but such as had been in the time of his an-
cestors, and as it ought to be by reason.* In
13 E. 3. (Rot. Pari. u. 13.) there was a peti-
tion against a maletolt of wool : but no answer
was given.

(q) Rot. Pari. 50 E. S. n. 17, 18, 19, 20.

407] STATE TRIALS, \ James I. 1(306.— The great Case qf Intpositum, £405

'in laying impositions;' which intimate suffi-
ciently, that a king might do it, but not a sub*
ject. " This is still more plain in the bill exhi-

othcr merchandize, certain new impositions
without assent of parliament, converting them
to his own use without controu!, the lord trea-
surer not being acquainted therewith; and of
assuming to himself in divers other things, as a
king. He pleaded, indeed, that he laid them
by the king's c jinmand, but he produced no
warrant, nor could he have any without the
treasurer's knowledge: and he was justly pun-
ished by fine, ransorac, and imprisonment.
The king's right could not be any ways affected
by this sentence on a man, who had acted of
his own head; especially since his charge was,
' that being but a subject, he had taken upon
' him, as a kiug, in divers things, particularly

bited by the commons in this parliament, (r)
praying, ' that those who should set new im-
' positions by their own authority, accroaching
* to themselves royal power, might have judg-
' ment of life and member ;' than which there
cannot be desired a plainer acknowledgment,
by parliament, that the setting'of im positions
belonged to the crown, and was a mark of so-
vereignty and royal power.

(r) Hot. Pari. 50 E. 3. n. 192.

Mr. HaKewill's Argument* in the Lower

positions by

Mr. Speaker;

The Question now in Debate amongst us is,
Whether his Majesty may, by his Prero-
gative Roy all, without Assent of Parlia-
ment, at his own Will and Pleasure, lay a
t new Charge or Imposition upon Mer-
chandizes, to be brought into, ov out of
this kingdome of England ; and enforce
Merchants to pay the same ?

I must confesse, that when this point was
first stirred mougst us, and that wee, not con-
tented to beeko redressc for the excesse of the
present Impositions, resolved to proceed far-

* Thi* argument in MS. is in the library of
Lincoln's Inn.

f Tlus argument was printed in 16*41, with"
this title, * The Libertie ot the Subject : against

* the pretended Power of Impositions. Main-

* taincd by an Argument in Parliament an. 7.
' Jacobi Regis. By William llakewill, of Lin-
€ coins Inne, esq.' — It was preceded with the
following address from Mr. llakewill to the
reader. ' .Being very sensible of a great injury

* lately done ince, by the extreme false priming
€ of a smal treatise of my composing, stoln out

* without my consent, and hearing accidentally
' that some part of this also had passed the

* prcsse, I thought good for the preventing of

* the like wrong to stay the forwardnesse of the
' nrinttr untill 1 had reviewed utid corrected it
' by mine owuv note*. For my pa»t, I should

* ln\e been route: uoil :ilt »gcthcr to have re-

* air.iined it, it* I mi^hc; bur now seeing it must

* abroad, I *!:.dl w.\ boo ashamed to let it Lcarc

* mv na» .e, and owuc the errors of it ray self

* (tho^e .»i i hi* prewe excepted) though hercto-

* f<>rc it hao £.» y ned so much reputation by some,
' ;ts it was Attributed to a worthier author.

* Some theri are yet sun King that hoard this

* argument about thirty yecrcs since in the
' commons home of parliament ; but it hath
' now extended itselfe beyond the probable pro*
' portion of a speech or argument, by the inser-
1 tion of many records and acts of parliament
' more at large, which, at the delivery uf it,

House of Parliament, in 1 010, against loa-
the Crown, f

ther, by culling his majesty's right of imposing
into questions, I was very sorry: for I saw we
were then in a faire way to have obtained a
very great abatement of the impositions that
now are ; and besides, we had his' majesties
promise never to lay any more but in parlia-
ment time, by the advice and free consent of
hid subjects, repairing hither from all parts of
the realmc. "rbis hope of a present ease, and
gracious promise for the time to come, gate
me, I confcsse, a full satisfaction ; especially,
seeing I was confidently perswaded, that his
majesties right to impose was very cleere and
not to be disputed ; and .that therefore by

' were but meerely quoted. — The endeavour of
' it is to prove, that the just prerogative of our
' kings never warranted them to raise monies
' at their pleasure, by laying a charge on mer-
' chandize to bee exported or imported, witb-
' out assent of parliament. But, on the con-
' trary, the setled lawes of the land, the presi-
1 dents of former ages, the acts of our most ne-
' cessitous and powerfull princes, and indeed

* every thing requisite to make the truth appa-

* rent, doe as it were unanimously consent to
' discharge us of this unjust and heavy burthen.
' — And you shall see herein, how the policy of
' active princes hath by many waies attempted
' to undermine those fortifications, which the
' w isdom of our ancestors hath raysed to main*.
6 taine themselves from this kinde of assault.
' You shall see with how great difficulty their
' pre\ ailing was withstood. And (which is the

* glory of truth) you -hall tinde those designes,
' which were laid to <>verthrow our right, mainly
' to make for the evidence and confirmation of
4 it. For, whate\er unjust impositions were
' either exacted by a pretended lawfuinessc, or
' set up by a commanding power, were by com*
' plaint in parliaments presently following taken
' down, and remaiu on record as (witnesses
' against themselves) unlaw full, and against our
' libertie. — These reasons and arguments of
' mine (how meane soever) those times, wherein
' I urged tbtm, accepted favorably ; and since,
' in their private passage in manuscripts,

409] STATE TRIALS, 4 James I. 1606,

drawing into question the right, wee might
give his majesty just occasion to withdraw from
us his gracious purpose of the present abate-
ment, as also his promise for the time to come.
For, syr, when the case of Bates, who as you
know was called into question for refusing to
pay the Imposition laid upon currants, was
argued in the Exchequer, in which case his
majesties right to impose was solemnly dis-
puted, and there resolved for his majesty, I was
then present at all the arguments both at the
bar and at the bench ; and I doe confesse that
by the weighty and unanswerable reasons, as I

1 entertained in many judicious hands, which
' made mee somewhat enlarge the conceit that

* before I had of them. And now seeing neces-

* side enforceth mee to make them more pub-
1 lique, 1 must adveutuie them to the censure

* of these nice times, Benchciall (happily) they

* may !*> to some, prejudicial! I hope to none.

* Id which confidence (having the leave of au-
4 thority) they have likewise my leave to goe
•abroad.— Vale— W. 11/

There are also prefixed the following heads
of the Argument : * 1. That there was ever

* some custome due to the king by the common
'law. — 2. That it was a sum certaine by the
1 common law. — 3. That all the revenues which
' the common law giveth to the king, out of the

* inUrcst of the subject, are certaine, or reduce-
' able to a certainty by some legatl course, and
' none left to the kings pleasure.— 4. The rea-

* sons why the law requireth such certainty in
' those revenues which the king hath out of the
1 interest of the subject. — 5. Examples of reve-
' nucs given by the common law to the king,
1 out of the interest of the subject, and tliat they
' are all certaine. — 0. Answer to an objection,
' that the king may lay impositions upon extra-
ordinary occasions. — 7. Arguments drawn
1 from the actions of our kings, that they had no

* power to impose. — 8. Arguments c|rawn from
' the forbearance of our kings to lay impositions,
' notwithstanding their urgent occasions. — 9.
'The difference between the presidents urged,
' of impositions laid by the antient kings, and
' those which are now laid. — 10. A particular
( answer to the imposition of 3d. in the pound
' laid upon merchant strangers by Charta Mcr-
'catona, 31 Ed. 1. — 11. The urgent occasions
1 which Ed. 2. had to lay impositions, and yet
'bow be forbore. — 12. The severall policies
1 .used by Ed. 3. for the introducing of the power
' of imposing : 1. Impositions taken by colour
'of a voluntary grant from merchants: 2. By
1 way of dispensation with pen all lawes : 3. By
1 way of ordinance in parliament : 4. By colour
'of a loaue by merchants: 5. By grants of
4 Merchants for liberties granted to them : 6.
1 By ex prcsse and direct commandement; with
1 tevtrall answeres to all those severall wayes. —
' 13. In what statutes impositions are mention-
1 ed after Edw. 3rd's time, untill queen Maries;
1 and upon what occasions, and how to be inter-
' prated. — 14. The signification of the words
' imposition, toil, maletolt, cuttuma tt comue-

— ©w an Information m the Exchequer. [410

then conceived them, of those grave and re*
verend judges, [Fleming, Ch. Bar. Clarke,
Savil,] sitting in their seate of justice, I was
much perswaded. But by those many records
vouched by them, I was altogether overcome,
and as it were vanquish't to yceld to them ; for
syr, ratio suadct, author it an vincit. But though
r were then, and when the question was first
moved in this house, very confident, yet as you
shall perceive anon, I was not very constant
in that opinion; for being, amongst others, im-
ployed by this house to make search in the Ex-
chequer for records, which, by the practise of

tudo magna ft parva. — 15. No imposition laid
from Ed. 3rd'* time till queen Maries. — 16.
What urgent occasions all the kings from Ed. 3.
till queen Maries time, had to lay impositions,
and yet did it not. liich. 2. Hen. 4. Hen. 5.
Hen. 6. Edw. 4. Hen. ?. Hen. 8. Edw. 6. with
a corollary of all those times and occasions. —
17. The impositions laid by queen Mary, and
how answered. — 18. Admitting the kings had
power by the common law to lay impositions,
yet how they are barred by statutes. — 19. Mag-
na Charta, cap. 30, urged against impositions,
and the objection made against it, answered :
1 Objection, That it extendeth onely to mer-
chant strangers : 2. That it was made onely
against taxes within the land : 3. That by the
exception in the end of the statute, the kings
prerogative is salved. — 20. The statute de
tullagio non concedtndo urged, with the an*
swers to the objections made thereunto. The
exposition of the words tallage, ayde, subsidie.
— 21. The statute of 25 Ed. 1. cap. 7. urged
against impositions, and cleered from objec-
tions : 1. That it is against the excesse ot im-
positions, and not against the right : 2. That
it is onely against impositions on woolls. — '22.
The statute of 14 Ed. 3. cap. 21. urged against
impositions, and cleered from objections.
That it extendeth onely to impositions
within the land, and not upon merchandizes,
answered, with an exposition of the word
charge. — 23. Answers to the reasons urged in
maintenance of impositions : 1. That because
it cannot nppecire that the ancient customes
were set by parliament, therefore they were
imposed by the king. The antiquity of par-
liaments.— 2-1. Answer to the second reason
urged for impositions, that the king may to-
tally restraiue importation and exportation,
and therefore may restraiue sub modo by laying
impositions. — 25. Answer to the third reason,
that the port* are the kiups, and that he may
open and shut them on what conditions he
pleaseth. — 26. Answer to the fourth reason,
that the kin*; is bound to protect merchants,
and safeguard the sea*, and that therefore he
may lay moderate impositions, for raising of
money to defray his charges. — 27. Answer to
the fifth objection, that all forreigu princes
have power to impose ; and if our king should
not have the like, it might be very inconve-
nient to this state. — 28. A summary conclu-
sion of the whole argument.9

411] STATE TRIALS, 4 James I. 1600.— The great Case of Impositions, [41*

former ages, might guide oar Judgments in this
weighty point, and having diligently collected
the arguments made in the Exchequer, and not
only so, but compared my owne collections
with reports thereof made by divers other of
my friends, and finding that some of the records
urged in those arguments were untruly vouch-
ed, and many misaplyed, I then began to
stagger in xny opinion, and presently fell to ex-
amine the weight of the reasons which had been
alledged, which in my poore censure, I found
not of strength sufficient, without the full con-
currence of deere presidents of former times,
to maintaine the judgement given, or my opi-
nion grounded thereupon. And therefore, syr,
in leve to the truth I did forsake my former
opinion as erroneous, and do now embrace the
contrary, that is, That his majestie bath no
right to impose, and so am now become a con-
vert. Those reasons that moved mee thus to
change, and the weakenesse which I discovered
in the reasons alledged against the opinion
which I now hold, I will, with your patience,
open unto you, and will therein follow the
com man dement of Christ to Peter, beeing con-
verted, seeke to convert niy brethren.

As touching the judgement in the Exchequer
standing yet in force, so often cast as a block
in our way, though I much reverence the per-
sons of those yet living, and the memory of
those that are with God, who gave the judge-
ment : vet seeing, as I hope I shall bee able
evidently to prove, the same to bee against the
Great Charter of our liberties, I can esteeme no
otherwise of it than the statute of 25 Ed. 1.
cap. 10. pronounceth of all such judgements;
that is, that it is void and to be held for nought.
Thus much I thought good to say by way of
preamble or introduction to the matter. Now,
by your favours, I will enter into the debate of
the auestion ; in handling of which I will pur-
posely avoid the repetition of any thing that
hath been spoken by airy man that hath argued
before, as knowing in what presence I speake.
That I may the better convey my selfe through
my argument, and be the better conceived of
you that are to heare me, I will divide that
which I have to say into certain parts, which I
will prosecute in order.

First, I hold it necessary to consider, whe-
ther Custom were due to the king by the com-
mon law.

Secondly, admitting it to bee due by the
common law, whether it were a summe cer-
tain, not to be increased at the kings pleasure
or otherwise.

Thirdly, supposing that by the common law
the king might, by way of Imposition, have in-
creased his Custom at his own will, by his ab-
solute power, without assent in parliament,
whether or no hee bee not bound to the con-
trary by acts of parliament. In the handling
of which part, I will consider the strength of
every act of ^parliament hitherto vouched to
this purpose, answering, as I goe, such objec-
tions as have been made against those statutes
by such as have maintained that the king is

not bound by them. I will also add a statute
or two as yet not remembered by any.

Lastly, I will discover unto you the weak-
nesse of such reasons as have been made in
maintenance of the kings right to impose.

In the prosecuting of which parts I will, as
occasion is offered, give some answere to that
which hath been last spoken, (by sir Robert
Hitcham]; as knowing it to be expected at my
hands.

First then to consider, ' Whether there
were by the Common-Law any Duty belonging
to the King upon Merchandize to be carried
into or out of the Kingdom, known by the name
of Custom?' — Though the maintenance of cus-
tome to be due by the common-law be a point
of such consequence to them that mainteined
the kings right to impose, as without the up-
holding of which, their opinion, as I conceive,
is not so much as colourably to be mainteined,
and that to maintain the same, it he not at all
necessary to induce my conclusion ; and al-
though to admit it, it may seem perhaps no
good policy of argument, but rather a s*teat
disadvantage to me to admit that, without
which the contrary part cannot uphold their
opinion, and which being admitted cannot make
any thing for me ; yet because we are here not
as arguers at the bar, but as judges in a high-
court, and that all our ends tend to the disco-
very of the truth : I will therefore not only
admit it, but will maintein it as well as I can.

That Custome is due by the common-law I
collect, first by the name thereof, for though at
this day it bee (and so hath been for more then
350 yeeres, as I shall have occasion more fully
anon to open unto you) called in our law-Latin
Custuma, yet in ancient time it had no other
name here amongst us (for I meane not to
wander into forreign-learning) then consuetudo,
as may appeare by the statute of Magna Charta
cap. 30. * Per rectos ct antiquas consuetudines;'
for I shall anon directly prove unto you, that
consuetudo in that place is not to be understood
an usage, as hath been said, but in that sense
which I take it. The name consuetudo in the
same sense is also found in many ancient re-
cords brought into this house upon the late
search. That this name then consuetudo,
which implies an approved continuance without
a known beginning, should by the common law
be given to this revenue more then to any other
revenue belonging to tlie king ; nay, that this
terme, which is the common and general name
to all common and approved usages of what
nature or kind soever, should be applied to this
dutie rather then to any other amongst all the
ancient usages and customes which the com-
mon-law imbraceth, cannot but denote the
great antiquity thereof, and more then so, the
allowance and approbation thereof by the
common-law ; for doubtlessc, if, beside the an-
tiquity of this dutie, the common-law had not
also ulowed the reasonableness of it, and in a
manner the necessity of it, it would never have
denoted it unto us by this name of -excellency'
above all other customes which require reason-

413] STATE TRIALS, 4 James I. 1006 — on an Information in the Exchequer. [414

•

ableness as well as antiquity. Therfore doubt-
less*, this duty, thus favored, is a childe of the
common-law. Nay farther, it is of the very
essence of a Custome to have his only begin-
ing by allowance of the common-law ; for that,
which beginneth by private contract of partie,
or by act of parliament, and dependeth not
wholly upon the alowance of die common-law,
by one of which three waies all things consi-
derable in law have their commencements,
cannot bee called or bee a custome, in name
or deede. Moreover, considering that this
custome is not limited to any one place within
the realme, wee shall so little neede to be cu-
rious in affirming it to bee due by the com-
mon-law, as wee may boldly pronounce it to
be part of the common-law itselfe. Thus you
see, that the very name consuetudo proves Cus-
tome to bee a dutie by common-law. To this
may bee added, that Magna Cliarta, cap. 301
which statute was made little more then 150
yeeres after the Conquest, termed* this not only
Consuetudo, which, as I have said, implies an-
tiquity beyond all rememberence of a beginning,
but antiqua consuetudo; not onely custome, but
old and ancient custome. And in comparison
to this old custome, due at common-law, the
custome upon staple commodities, given or in-
creased by act of parliament 3 E. 1. not printed,
was called Nova Consuetudo : before the mak-
ing of which ^statute of 3 E. 1. you may fur-
ther see, that custome was due ; for an. 52 H.
3. in the statute of the Exchequer, printed,
you may read, that the collectors of the Cus-
tome of Wools were to yeeld their accompt
twice every yeere into the Exchequer. But
that, which most of all moveth me to beleeve
that this duty was and is due by the common-
law, is this ; that in all cuaes where the com-
mon-law putteth the king to sustaine charge
for the protection of the subject, it nl waves
yeeldeth him out of the tiling protected some
gaine towards tbc maintenance of the charge :
as, forjthe protection of Wards, Lunatiques and
Ideots, the profits of their lands; for the main- j
tenance of the courts of justice, it giveth him |
fines for purchase of originall writs, and fines
pro lieentia concordandi, which in supposition
of law are no other then fines paid for not pro-
ceeding according to the surety by pledges put
in upon purchase of the original], and for trou-
bling without cause the kings justices, who are
maintained in their places at the kings charge.
There are many the like profits of court, given
by the common-law to the king for the mainte-
nance of his charge in the administering of jus-
tice.— This observation, which might be further
proved by divers other instances in things of
other-nature, roaketh me to think, that because
the common-law expecteth that the king thould
protect merchants in their trades, by maintain-
ing, repairing, and fortifying the havens at
home ; by clearing the sea ot pirates and ene-
mies in their passage: and by maintaining am-
bassadors abroad to treate with forreigne princes
upon all sock occasions ; that it also giveth him
out of merchandizes exported and imported,

some profit for the sustentation of this publique
charge. Otherwise were the law very unrea-
sonable and unjust. So as to prove, that by
the common-law Custome is due to the king, I
shall need to say no more: especially consi-
dering it hath not onely been yeelded to, hot
proved by those, which maintain a contrary
conclusion. , I will therefore proceed to my
Second Consideration ' Whether that pro-
fit upon Merchandizes, which the Common-law
for these respects gave unto the King, were a
Duty certaine, not to be increased or inbaunced
at the Kings Will and Pleasure, without «
common Assent in .Parliament; or otherwise,
whether the Common-law hath left an absolute
power in the King, to demand in this case more
or lesse at his owne Pleasure, and to compell
his Subjects to pay it?' — The resolving of which
question will, as I conceive, make an end of
this controversie between us ; for what are these
impositions which wee complaine of other than
the enhauncing of the Custome by the king's
absolute pleasure ?

That this duty given by the common-law, as
I have proved, unto the king, was and is a Duty
Certain, not to be enhaunced by the king at
his owne pleasure, without assent in parliament,
I hope I shall be able cleerly to prove unto
you : in mainteinance of which, I will use
some arguments of direct proofe, and others of
great presumption and probability. And first,
I lay this as a ground, which will not be de-
nied me by any man ; That the common-law
of England, as also all other wise lawes in the
world, delight in certainty, and abandon un-
certainty, as the mother of all debate and con-
fusion, than which nothing is more odious in
law : — and therefore the rule is, quod certum
est retinendum est, quod incertum est d writ ten-
dum ; nay further, quod incertum est nihil est.
This is the censure of law upon all the acts of
men, which fall under the judgment of the law.
If then the law so judge of the acts of men,
holding them for nought and voyde, that are
in certaine ; how much more then doth the
law require certainty in her own acts, which
are to binde all men ? And ^f in any of the acts
of law certainty be to be specially expected,
most of all is it requisite that bounds of limita-
tion and certainty be set between the king
aud his poor subject, between the mighty and
the weak, between the lion and the lamb.
And if in any case between the king and his
subject more than other this certainty be re-
quired, most of all it is requisite in cases where
the common law giveth the king a perpetuall
profit or revenue to be raised out of the in-
terest and property of his poor subjects
estate, either in lands or goods. If in all
other things the law, as I have said, and where-
in I suppose you have yeelded to me, doe re-
quire certainty and limitation, and onely in
this case where it is most requisite, it hath
omitted and neglected it, we must conclude
the law to be most unreasonable, improvident,
and contrary to it selfe ; which to say, were
to conclude it to be no law. Out of thet*

415] STATE TRIALS, 4 James I. 1606.— Tltc great Case qf Impositions, [416

grounds, I may then in my opinion safely and
with some confidence deduce arid maintain this
position ; That the common-law of England
giveth to the king, as to the head of the com*
mon- wealth, no perpetuall revenue or matter
of profit out of the interest or property of the
subject, but it either limiteth a certainty there-
in at the first ; or otherwise hath so provided,
that if it be uncertaine in it selfe, it is reduce-
able to a certainty onely by a legal course,
that is to say, either by parliament, by judges,
orJury> an(i not by the kings own absolute
will and pleasure. — Though this position be
grounded upon those sure foundations, out of
which I have, as you perceive, drawn if, and
needs no farther proof; yet because you shal
see how plentiful the truth is in reasons to
maintain it selfe, I will further open unto you
the particular reasons of this position, which
are these :

First, the law rcquireth certainty in matter
of profit, between the king and the poor sub-
ject ; because to make any man judge in his
own case, especially the mighty over the wcake,
and that in a point of profit to him that judg-
eth, were to leave a way open to oppression
and bondage. — Secondly, Because by reducing
it to a certainty, the king may know what cer-
tainty to expect ; that so he may order his
charge accordingly. — Thirdly, That the subject
may know likewise what he is to pay, that so
he may know certainly what shall remaine to
him as his own. — Finally, That the king may
lint depend upon the good will of his subject
for his revenue, seeing the law expecteth he
should beare the charge, but may know in cer-
tainty what to claime as due to him, and may
accordingly compell the subject to pay it ; and
that the subject may not be under the kings
absolute power to pay what the king pleaseth,
which may perhaps extend to the whole value
of the merchandize.

You see in general I, how the law, by requir-
ing certainty in matter of profit between the
king and the suhject, preventeth many mi~-
cheifes, which would fall out if the law were
otherwise ; and therefore without more savins,
1 might here conclude, tha» custouic, hcing duc-
hy the common law, was and is a sum certain,
not to he increased at the kinjrs pleasure bv
way of imposition. But because there aie
many other revenues due to the king by the
common law, us well a? cusimne ; if they all,
or as many as we can cull to minde shall foil
out t> bee, as I have said, summes certainc
and not subject to bc»* increased at the king3
will, this will bee a forcible argument, that
tustoine is likewise certain and not to be in-
hamiced at the kings pleasure ; for, this argu-
ment drawne d sun Hi is of «reai force, and the

decide that which is in question, by the same
rule and measure, by which other things of the
same nature have been decided and ordered.
The commou-law giveth the king a fine for the
purchase of an original writ. Is it certainc ?
it is, and ever hath been. If the debt or
damages demanded amount to above 40/. the
fine ix, and c\er hath been, 6s. 8d. and no
more; if to 100/. then 105. and no more.
May the king increase this fine at his pleasure 1
Then? is no man that will say he may. 1 htre
is a fine due by the common-law, pro (iccntia
concordandi. Is it not certainly known, and
so hath alwayes been, to be the tenth part of
the land comprised in the writ of covenant ?
And is not also the post-fine thereupon due
certainly known to be once and a halfe as
much more as the fine pro Uctntia concordandi,
or pre- line ; as for example, when the pre-hne*
is 10s. the post-fine to be 15;. And can the
king demand any more of the subject? So
likewise, when, in a writ of right, the demand-
ant, alleadging the seisin of his ancestor, will
not be compelled to prove the seisin aileadged,
is he not to tender the king a summe certain of
demy-mark, to have this benefit ? Was it ever
more or lesse ? Or can it now be mure, if the
king would ? These, amongst many others,
arc duties belonging to the king by (he
common-law from the subject, for the main-
tenance of his charge in the administration
of justice, which the civilians -call vectigal
judiciarintn. There are also in divers other
cases duties certain, belonging to the king by
the common. law : as for example, the reliete
for an earldome is certainly knowne to be
1007., for a barony 100 m:\rkes, for a knights
fee 100s.; all which in the statute of Magna
Chartn, cap. 2. arc called old and ancient
duties. This is vectigal patriwoniaii ;. of which
sort I could produce many others, all which
have like certainty. Nay, there is one duty
well known to us all, which the common-law
givctii to the king ; and i> in his nature a cus-
toinc (our very c,;»se) in which the king is bound
to a certainty which he cannot exceed ; and
that is pristiLf, a duty given by the comn.on-
iaw to the kin£, upon eicry ship-loading of
wine brought into the kingdom by English
merchants; and is one tun of wine before the
mast, and another behinde. I am unwilling to
trouble you with any more particulars of this
kinde. Hut let any man shew me one particu-
lar to the contrary, and I will then yceld, that
my position, being fake in one, may be in
more: hut till my position hath been in
this point infringed, this general concordance
of the law in all these particulars is argument
Miou'jh for me, without having aileadged other
reasons, to conclude, thai costume being, as all

mo>t u>uul! of any other in debate of things j these are, a revenue due to the king by the
doubtfull in law. »« Qua* logibus drcisa non : common-law, arisin-j out of the property and
u sunt, judex ex his qua: decisa sunt statnet, et ! interest of the Mibjcct, is, as all these are, li-
" du sitnihbus ad siimlia procedaL." Muv it initcd and bounded bv the common-law t6 a

proce

please you to consider in this respect other re-
venues, which the common-law of this laud
fiveib tfce king ; and according to the rule, to

certainty, which the king hath not power loin-
crease. Ubi eadem ratio, eadem lex. It may
perhaps be here objected, that the ayd paid to

417] STATE TRIALS, 4 James I. 1G06.— <m an Information in the Exchequer. [418

the king upon the knighting of his eldest sonne, ,
or marriage of his eldest daughter, was by the i
common-law uncertain* ; and Unit the king did
take more or lease nt his pleasure, untill he was
bound to the contrary by statute. To this I
make divers answers. Though it were indeed

r^

a surnme unccrtaine, yet the common-law did
in some sort give it a limitation ; for it is by a
spec ia 11 name culled Reasonable A yd : so, as
if the summe demanded doc exceed reason, it
became from a Reasonable A yd an Unjust Ex-
action. Beside?, this revenue was a thing
happening very rarely, and therefore the cer-
tainty thereof not so much regarded by the
law. And yet it is to be observed, how the
frame of this common-wealth co.ild not long
indure incertainty even in this casuall revenue;
hut it was reduced to a certainty of -20.?. upon
a knights fee, and 20 s. upon every 20/. soc-
cagelund, by the stat. of WVt. 1. cup. 35.
3 Ed. 1. if in this casual! revenue they were
so careful I to be at n certainty, to avoid uurea-
tollable exactions, as the words of the statute
are, how much more carefull would they have
been, for the same cause, to haic reduced the
great and annuall revenue of the custotne to a
certainty, if they had not thought it to have
been ccrtaine by the common-law, or limited
by statute law before that time made? But,
sir, that, which I rely upon for answer to this
objection, is this. Reasonable ayd was and
is by tlie common-law due as well to mcanc
lords as lo the king ; but mcam* lords were not
limited to a certainty, otliwrwise than in gene-
ral!, that it mu-t be reasonable, as I have said.
Therefore to limit the king any further, was no
reason: and this answer may be given Tor oil
uncertain revenues belonging to the kins, the
like of which mean- lords have of their tenants;
for the incertainty of which there may also be
given speciull reason ; because these duties first
begun by speciall contract and agreement be-
tween the lord and the tenant, and nut directly
by operation of the common-law, and so were
certain and uncertain us thev did nt first agree.
Aud therefore you may be pleased to remem-
ber, how in laying my position 1 was wary to
*ay, That »»uch revenues, a-, are due to the king
a * to the head of the common- wealth, (by
which I puiposely excluded such revenues as
arc common to hiin with other mcane lords)
me always ccrtnine.

I ain now according to promise, and in main-
tenance of a j-eroud part of my Position, to
*hrw v«»u. That where the common* law jriveth
thv king a ie\c>:iic not certainc at the lirst,
th.it is ;ilwu\is n.iuccable to a certainty by a
Jwd c-:i:r»e, a-* by net of parliament, judges,
or jury, and inn at the king's* pleasure. — Every
in mi, ih.'l bv his tenure is bound to serve the
kin*; in his narro, and faileth, is to pay, ac-
<ordin:» to tlie niiiiuiitv ot'hife tenure, a fine hv
tl:»- u me of < M-tiuge. This cannot be assessed
hi-i in uartiiinifiit. I'pou i'orfeuures (or Trea-
son, ur olhc-iui-'-, to t!ie kiug, though it be a
ki.ule ol u certainty tout thj law giveth, in
pMiv* hirii ad tliv estate of the party con via,
VOL. II.

both in goods and lauds, or in iroods onely, as
the case is; vet fur reducing it id a more e\-
prcsse certainty, the law requireth, that it be
found by office. Wavfe, Striv, Wreck, Trea-
sure-Trove, and such like, are no less o name ;
for the king hath tlie thing-* themselves in
kinde. lines for Misdemeanors arc ;>!w: yes
assessed . bv the judges. Amercement in all
cases aie to be aiV» rred by the country, and
not be assessed bv the king; though the forme
of the judgement lie, rt $il in wiV* icordiu demi-
rti regis, in the king's mercy, pro contempt a
predict. Nay, though for puiii-hiiient of an
offence it be by *tnttitc-law enacted, that an
offendor shall make line and ransnme at the
king* pleasure, the law even in thisc-.-se, which
is as strong a case us may he, will not leave
the assessing of the tirie to the kinns pleasme,
to be by him rated private* y in his chamht r ;
but it iiiiM be solemnly and It ir:tll v dime in an
open cv»urt of justice by' the judges, who in all
other cases arc to judge between the king and
his people, where the interest or property of
the subject, or any charge or burden upon iliem
doth c .me in question, as may be proved by
the booke of 2 It. 3. fo. 11. Insomuch that I
am of opinion, that if a statute were made,
that the king might raise the cust nines at his
pleasure, yet might it not be done us now it is,
by the kings absolute power, but by fome other
legn 11 course, of whirl) the coinuion-hiw doth
take notice ; as in the case of the line and run-
some. .Much le^sp then will the cominon-l.iw
peunit, that it should depend upon the kind's
absolute pleasure, there bciug no such statute
in tlie c.isc.

You have henrd out of what ground* I fVst
deuurcd tins my Position, That the law re-
quireth certainty in matter of prolit between
the king and his people. — You h:ne heard
likewise the particular reasons of that Position.
You have also heard what proofc I have ma Ie
by particular cases of like nature to this in
question ; and how I have applyed them to the
point. And so lea\ing the judgement of the
whole to your wisedomes, who can best dis-
cerne whether the argument lie of weight, 1
proceed to my Second Reason, which is drawee
from the policy and frame of this common-
wealth, and the providence of the counuou-
law : the which, as it requires at the sitbjt cts
hands loyalty and oliedience to their soveroi ne,
so doth it likewise require, nt the hiiiids uf the
sovernigne, protection and defence of the mi!»-
jet t againtt all wrongs and injuries w hat-net c,
offered either by one subject to another, or hv
the common enemy to them :ill, or any of them.
This protection, the la%v cotisidcrrth, cannot he
I without, a ure:H charge to (licking; and Ik-
. cause .:is(Tiri«t smth. "nomannoeth t<> warm on
! h>s own charge," the common-law* therefore
hiith nol only en en the king great prerogatives
and favours touching his own putimouv, m< re
i (1 l.eletve) than any other prince in the w«u!d
' hath; but also hath, for the sustciita'ion of les
' gre.it and nccc^arv e\ peaces in the protection
of h s subjects, !:ucii him, out of the interest

•J i;

41<»] STATE TRIALS, 4 James I. I6u6.— Tlie great Case qf LirposUions, [420

error hatli draw ne you. But for a full answer
to tiic objection, I say, that the providence of the
common-law U^uch, and so excellent, as that
for the defraying of the kings charge upon any
occasions of a sudden warre, it hath, oyer and
above all the ordinary revenues which it giveth
the king, which in the time of wane cannot in-
deed but full short, made an excellent provi-
sion; for, sir, the warre must needs be either
offensive or defensive. Offensive must cither
be upon some nation beyond the. seas, or
against the Scots, or Welsh, or other borderers
within the iland. If it be an offensive warre
upon some nation beyond the seas, it cannot be
a sudden accident; lor it is the kings own act;
and he may, aud it is fitting he should take de-
liberation ; and if it be a just and necessary
warre, he may crave, and easily obtaine assis-
tance of his subjects, by grant of ayd in patlia-
ment. If an offensive warre upon some of his
neighbours within the continent of this iland, as
the Scots, or the Welsh, which also cannot be
sudden or unexpected to the king, being his
own act; you know, how politicly the kings
of this realmc have provided, by reserving te-
nures, by which many of their subjects are
bound to serve them in those war res in person,
at their o\\ n charge. Only a defensive warre,
by invasion of foreign enemies, may be sodain :
in which case the law hath not left the king to
warre upon his owne expence, or to rely upon
his ordinary revenue, but hath notably provid-
ed, that every suiject within the land, high and
low, \\ hc-ther he hold of the king or not, in case
of fornigu invasion, may he compelled at his
own charge to serve the king in person, as it
appeals by the opinion of ji slice Thinning, in
7 11. 4. The reason of which, in my opinion,
was to no other end, than that the king might
have no pretence whatsoever for the raising of
money upon hi* subjects at his owne pleasure,
without their common assent in parliament. I
doe then conclude this argument, that seeing
the common law, for maintenance of the kings
ordinary charge, hath given him such an ample
revenue out of the inttiest and property of the
subject, aud provided also for sodaine occa-
sions; in so d»iug it hath secluded and secured
the rest of the subjects estate from the kings
power and pleasure; and consequently, that the
kin? hath not power upon any occasion at his
pleasure to charge the estate of hi* subjects by
all impositions, tallages, or taxis, for I hold them
in one decree, or anv other burden whatsoever,
without the subjects free aud voluntary assent,
and that in parliament. If it were otherwise,
you see how it were to the utter dissolution and
destruction of that politike fiame and constitu-
tion of this commonwealth, which I have open-
ed unto you, and of that excellent wise provi-
dence of the common-law , for the preserving or*
property, and the avoydauce of oppression. —
These two arguments used by me, that of cer-
tainty, and this of the provision made by the
common-law, ure in my poor opinion, argu-
ments of direct proofe, that the king cannot im-
pose.— 1 wid now, according to my division, urge

nnd property of the subject,nn ample and very
honorable revenue in very many particular
cases, some of which I will call to your remem-
brance.— He receiver h out of the subjects purse
for Wardships and the dependences thereupon,
as we have of tare accounted, about 4.rj,000/.
by the yeatc. This is a revenue which no other
king of the world hatli : and as it appearcs by
the statute of 14 £. 3. c. 1. * It ought to be
imployed in maintenance of the warre .s.' And
vj doubtlcsse was the fust institution of the
com.nonluw; for the lord hath the profit of
the wards lands to* no other end, than to main-
tain a man in the warre during the infancy of
him, who otherwise should serve iu person. —
lie hath likewise all forfeitures upon treason
and outlawry, and upon penall lawes, fines and
amerciaments, prolits of courts, treasure-trove,
prisage, butlerage, wreck, and so many more,
as the very enumeration of the particulars would
take up long tinve. To what other end hath
the common-law thus provided for the mainte-
nance of the kings charge, by all these wavs
and meanes of raising profit out of the interest
and property of the subjects estate in lands and
goods, but onely to this end, that, after these
duties paid, the poore subject might hold nnd
enjoy i he rest of his estate to his owne use, free
and ch-r.rc from all other burdens whatsoever ?
To what end hath the law given a part to the
kin«ji and left the rest to the subject, if that
whic h is left be also at the kings will, to make
his profit thereof as he pleascth ? To gite a
small portion to him, that may at his pleasure
take more or all, is a vain and an idle act;
which shall never be imputed to a wise law. But
it may be objected that us the revenues are ordi-
nary, so are they by the law provided onely for
the su.tieyning of the kings ordinary charge ; aud
thot if the law have not taken further consider-
ation, nnd limited some certain course, how
upon sudden and extraordinary occasions the
kings charge may bee susteined, there is yet no
reason shewed to the contrary, why the kiu^
• may not upon such occasion take some extra-
ordinary course for the rays nig of money, as by
the laying of impositions upon merchandi/i s, or
by a tax within the reahne, i at her than the
common-wealth, for want thereof, should perish
or be indnngcrcd.

And hereupon by the knight that last spake,
(Sir Itobcrt liitcham) it was held, that, t'pon
<)CcuM"ii of a sudden and unexpected war, the
kin- may not only lay Impositions, but levy a
tax within the rcaline, without Assent of i'ar-
li-'imc ut, which Position in my opinion is very
dangerous ; for to admit this were by conse-
quence to brine us into bondage. You say,
that npon occasion of suddaine warre the kiii£
limy lew a tax. Who shall be judge between
the king and his people of the occasion ? Can
it be tivcd by anv Wall course iu our law? It
cannot. If then the king himseltc must be the
suleiud;;e in this case, will it not follow, that the
king in. iv levie a tnxe at his owne pleasure, see-
ing hi* pleasure cannot be bounded by law? You
see into what a mjschietc the admittance of one

421] STATE TRIALS, 4 James L 1606.— on an Information in the Exchequer. [422

an Argument or two of inference and presump-
tion; (he rather, because arguments of this na-
ture iiave been much enforced by those, who
have maintained the contrary opinion, espe-
cially by Mr. Solicitor, (Sir Francis Bacon.)
I call them Arguments of Inference; and yet
in my opinion, those which I shall urge, are
also of good proofe. Such as they are, you
shall judge of them. They are drawn, either
from the actions or forbearances of the kings of
this realme, or from the actions and forbear-
ances of the people.

First, in the actions and forbearances of the
kings, 1 observe, that all the kings of this realm
since lien. 3. have sought and obtained an
increase of Custumc, more or lesse, by the
name of Subsidie, of the giti of their subjects in
parliament. Nay, some of them, and those
not the weakest in spirit, or power, but the
most couragious and potent in that whole
ranke, even that mighty and victorious prince,
king Ed. 3, being to undertake a just and ho-
nourable warre, than which there could not
happen a better or juster occasion to have
made use of his prerogative of imposing, did
net ertbelesse at that time stoope so low in this
point, that he did, in full ussembly of the
three states, pray his subjects to grant him a
reliefe in this kinde for the maintenance of bis
warre, and that to endure but for a short time ;
and further, was well content to suffer his
prayer in that bebalfe to be entred of record to
Che memory of all posterity. And the succeed-
ing kings have also suffered the same to be
printed, as may appeare by the printed statutes
at large, an. 14. Ed. 3. cap. 21. Is it Likely,
that if auy or all these kings had thought they
had had in them any lawfull power by just pre-
rogative to have laid impositions* at their
pleasure, they would not rather have made
use of that, than have taken this course by
act of parliament, so full of delay, so pre-
judicial] to their right, so subject to the
pleasure of their people, who never under-
goe burdens but with murmuring and much
unwillingness ? Can there be any thing more
hatefull to the high spirit of a king, than to
subject hiinselfe to the pleasure of his people,
especially formatter of reliefe, and that by way
of prayer, having lawfull power in his hands to
relieve himselie without being beholding to
them?

If perhaps the kings themselves were igno-
rant of this great prerogative, which cannot
be imagined ; had they not alwaies about them
wise counsellors to assist them, and such as
fur the procuring of favor to themselves would
not have failed to have put them jn minde of
it? Nay, if they had known any such law full
prerogative, had they not been bound in con-
science so to have done ? What an oversight
was it of king Edw. 3, and all his council, so
much to prejudice his right in. so henchciall a
prerogative, as to suffer him upon record, nnd
that in parliament, to pray for th;it, which he
might have taken out of his absolute power ?
Can there almost be a more direct disclaim -ng

in the right ? To compare great things with
lesse, if the lord bv matter of record claime
any thing of his villaine, it is a disclaimer of
the vtllenage.

The kings of England hnve other noble and
high Prerogatives. I will only name two of
them, the making of warre and peace, and the
raising and abasing of coyne at their pleasure.
Did they ever crave the assent of their subjects
in parliament to make a warre ? Their advice
indeed they have sometimes sought, and their
ayd for treasure to maintaine it. The preroga-
tive of raising and abasing the value ot money
hath been oftentimes put in practice by tliem,
and sometimes stray ned to such a height, that
the king might well suppose the subjects could
not bat be much discontent therewith. And
yet never any king of this realme did it by ab-
sent of parliament, which perhaps some one
milde king among so many would have done,
and it may be, would also have prayed his
subjects to yield thereto, only to avoid the
grudging of the people, if the seeking of assent,
in parliament had not been thought to have
been prejudicial! to the absolute power of their
successors : and yet, as for so'ue of these kings,
it may be supposed, they made little conscience
to prejudice a successor in one point, that made
no scruple totally to depose a predecessor from
his throne, and all his regalities, and to usurp
it to themselves.

And so I proceed to my next Argument of
Inference drawn from the actions of our kings.
Some of the kings of England, as namely Edw.
2, in the yeerc of his reigne, and Edw. :j,
in the 1st and 24th yeere of his reignc, as may
appeare by the records here amongst us, were
contented to accept an increase of their Cus-
tome " by way of loanc" from the merchants,
and solemnly binde themselves to repay it
agaiue. Would any wise man in the world,
that thought he had but a colour of right, so
much prejudice himself, as to borrow that
which he might take without leave, und biudt;
hiinselfe to repay it ? If a poore man perhaps
through fcare might be enforced so farrc to
yeeld to a mighty adversary, yet that a power-
full man should stoope so low to one much
weaker than he ; nay, that a kinp, in a point
of such consequence, should so lurrc diacend
from his greatness, as to borrow of his poore
subject that, which without being behohliug to
him he might ohtein »s his right, and binde
hiinselfe to repay it ugaine: 1 say, it cannot
v. ilh any reason bo imagined; 1 ut with.ill it
must he concluded, that ti kin", that j-l.all so
doe, doth not thinke tli::t he hath m) much h>
colour of right to impose. — I will imt much
pre**-e or enforce the action* of i"dw. ?, who (i
confess.-.*) was but a weake prince ; but n* for
his soniic and slice c^or, Kdw. 3, there was
not, as I have said, a stouter, a wiser, a more
noble and rournginus prince th:m he, and none
more careful to prtscivc the rifihts of his pre-
rogative, as mav e\i«!« ntiv appeare l:v i*!l hi*
answer* m parliament, on any complaint or
the subjtct. llchides, never h:A Ling of this

r.

S I. \ IT. TRIALS, I- James I. KiOO.— The great Case of Impositions,

[424.

.e .•»'.; « ion than In? to strainc

1 iv, iif napo^ing to iiiC Utmo«t.

< •«

t!:i>
r *>r

li i \rr-» nc txpeU"C ill I lit' wants ot
'» . , .in | ; ,• -itl-iml, lie had also a < 'mtiuiiali
». m of in-iiiy f'Ni'-'iiaivc ctiild.'i'ii. \\\* wife
.^.d.ir i lnlippa hud al»o ibr her maintenance
n i »rgc allowance out of Ins revenue. Hut the
i iwrv «f ijikvii Isabel hi*, mother, who lived
nil about the 27 ih vceie of his icignc. was so
£•'« .it, n» it is tepurud liy some writers, that
Im.'r more than the third part of the ceitaine
re-ieuite ef the kingriomc was If ft to him. In-
samiuii, as through these occasions of extraor-
daiaiy i\|*cnce, and the diminution of his re-
i «■•»•.♦ . he was driven to such necessity, us his
qi;«.e.i in the yeere of his reigne, was en-
Mi;vi d to piwne her crownc and jewels to pro-
cure money for hiin, as may appcare hy the rc-
iv. d of il at \i ere iu the ollice of the clerk e of
the y\ I>. Nay, the king hansel fr, in th-se ex-
tremities was oliciiiimes driven to I iy his
jtwtU to pawue lor money : and in an. 1?,
did also pledge his crown for -1 (XX)'. to ceitaine
merchants of Florence, as hy the rcfunli of : hat
\i- re, iu the ullicc of tire lotil insurers re-
membrancir iu the K\chcij-.ier, is manifc-t.
U\ thii you may sec, that this powerful! kiu^
wanted not urgent and just occasion, if any
i-. i .:«n>ii may hejusi, to have put iu practice
i-i* ah.- .-late power or* imposing; and vet, as
*•■•.■ ■ t , it sij perns of record, that, in tiu* midst
oi i.i i !-ic.it want- he* took ft an increase of cu«*-
t u;u: •* hy v\ay of iuanc/' and bound himsclfc
to r.,-.-ay it.

it may he lure objected, that he did lay
luipoMtaiiis. — What impositions they were,
ami how to he coin pared with t\\c Impositions
now in (pa ktii>!i, I purpose to Tell you. when T
fume to answer objection^, v.hirh I have rc-
iirred to the cud of my speech. In the meane
tune I will goc on witii my course, and urge
one argument more, draw n*e from Hie actions
of our kiii-s, touching the increase of Custome.

A man would thinkc, that the taking of the
increase of Custome hy all the kings, both one
ami other, with the assent of their subjects in
parliament, and sometimes by way of prayer
and in treaty, fur a short time ; nay, the rik"in«!
of il by way of loane, and binding thcmsi .ive's
to repay it; and that to have- been done by the
most powerfull kings in their greatest uccssi-
lies ; were argument enough, that they did w\
hclerve they might justly claiine it as th'-ir
right by their absolute power. — And yet is not
this all ; lor, {foine of them, by name, Kdw. I,
did not oiivly take it by assent in parliament,
iir •• by way of lannc,'* but (as out I bar bnve*
lor Ir.s iiiom-y in the market; d.d »iw f »r it a
reidl and vahuble consideration, and that to
iu»-rrh i nt-st rangers, <»f whom thcie. ww more
colour to demand it us a duty, lii m of hi* na-
tm.ul Mihjt-i t*. In procfe of which I ptoduce
I 'Inn U Mercniorin, made anno '61 Kdw. I,
whereby ir ii reciie.l, that, iu lieu of certamc
l-berties and inmiun;iics granted by the king to
Jit uitMch.uit-sir.iiigt in as uls>> f ir the release
«■! pii».u,e, tij«\ ^jitii'Lil iu the kieg an incitaac

of custome. What were all the special liber-
ties that v. ere granted them, 1 know not, nor
whether they continue. But sure I am, that
by virtue of that grant they are at this day
free of piisage, paying oncly 2s. upon a tun of
wine, by the name of butleragc, which they
granted by the same charter ; whereas English-
men pay prisage in specie, viz. one tun before
the must, and one tun bchinde.

And it is very worthy the observation, how
the same kinsi Kdw. 1, in the same veer ol In*
reign did command his customers throughout
England, th.it, whereas certain Knglish mer-
chants were, as he was informed, of their own
accords willing to pay him the like increase of
ciiMome which the merchant strangers bad
granted unto him, s ) :;s t!uy might enjoy the
like liberties and benefits: nevertheless'.' they
should not compt'U such l.n^iish mcrcliunta,
against their wib, to pay it. The words are
worth the he.irirg. * Cum (piidani merca tores
' de ivgno et putesiate nostri, ut ipsi tlictia ii-

* bertat. (having before recited Ctiaita Merca-
1 toiia) uti et gauilerc. el de jirisis nostris quiebi
' esse possint, pritst.iliones et custmnas hujus-

* moui^de bonis et mercandi/is sui?, nobis dare
el fiolvero »elint, ut accepimns; a*sigiiavimus
vi is ad prav tntioiies et cestuinas pr.pdictas, de
his <iui j»r; .-t.aiioiies et c.-iumas ilias gratnn-
tcr it :il siji; .» coht rcio'.e solvere vohierint,
coihticii i::n:,e! ad r>piL- iio.-trum recipiendum;
ita tameu (imo:1 ahquem ne ic.Uorcni tie <licto
regno nosim a<l hujusiiKjdi pra'Stationes et

' custmnas iiohi^ unite >< -K <_*n<l inn millatenus
' distriiigati«j.' — What stronger inference can
there almost pos^il>Iy he agiimst the kings ab-
solute power of Imposing, tlian this: tint he
was (outdated, and so specified to all his ofti-
ccrs ol il.e pons, that il the merchants did of
their o.\n ii'-c^rd^ |>ay more than their ancient
cus; mr.es, they should have consideration for
it; hut if thev themselves were not vvillinn to
pay more, tlu-n they should not be compelled
thereunto P

One ether Observation I draw from the
actions nf t!ie kin<:s touc'hing the increase of
ths-ir CitMome. which is this, that those kings,
which did l.iy f !iip>«>itions (which as I will
she.v \t)u bv and bv, was verv rarclv) though it
were never but in tunc of ureal necessitv, mid
but to indnre l "■ » *" a short time; yet they al-
wayes <lid it, \\o\ with the advice alone of the
merchant-, as at this day, hut the merchants
did alw<tic*> ^'ilcmnlv g:a;it an increase of Cus-
ti nn< • ; a i s . I t i ic V i , i ■• v w c re a I \v ay es wary, f< »r
the he;U'r j'.-tdi.'ati ;ii oi their actions io the
peojde, ia their conmnss.iM!.-* for cull- cfing
oi' cu-«lon:e, t'inrite ie.i n:a-ly the great ne-
cessity which iu.)iei| them t i t\kc an increa*e
of costi.!!!!1. hut aUothe( ir.'iil of the Menhants,
as iiiiiv aj'neare bv \\\? roc«)r«fs, of which v\e
have thtrcopu-s amongst \\*. J dare confidently
say, there is not iibovi- on • or two at the mo>t
that are otherwise, if the jnr Motions be ol that
uatun*, which these are of whuh we ciip^daine;
and ye( thee impositions a!->, by tleOrant
nf Merchants, though iai>-«..l upon i.ever so

425] STATE TRIALS, 4 James I. 1606.— on an Information in the Exchequer. [420

great a necessity of state, and to indure but
fur a short time, were always complained of by
the commons, when they met in parliament, as
may uppearc amount other records, by the
parliament roll of 27 Edw. 3, No. 27, where in
u petition of the commons, exhibited to the
Ling in parliament, are these words: i Les
' Commons monstrent, coment que les mar-
4 chants ayent train t per eu\, suns assent de
' parliament, un subsidie de xK de sacc. de
' layn, outre lc droiturcl mnletout de deniy

* iii.irLe ; et prion que soit amend a ccst par-

* lament ; ear est encounter reason, que le

* roruinnltie de lour bicus soient per marcrnnts
f charges.* Which I Enirlrdi thus : ' Tiie

* commons shew, how the merchants have
' si ranted by themselves, without absent of par-

* i lament, a stihsidie oi' 40*. upon a sack of
4 wool I, over and above the rightful custome of
4 Jialfe a mnrkc ; and pray that it may be re-
' dressed at this parliament ; for it is against
' reason that the commonalty should be charged

* in their goods by merchants/ With this
aireeth the printed statute of 36 Edw,. 3, cap.
11, in the Statutes at Large, where you shall
fade an expresse provision against the ray si up
of Impubitiuns upon Wools, by Grant of Mer-
chants ; in which petition I doe observe, that
the parliament in those da ye? did distinguish,
even as we now doe, between Impositions laid
by act of parliament, and Impositions laid
only hy the grant of merchants, acknowledging
that Impositions laid by parliament only are
lawful!, aud condemning all other as unlaw full;
for otherwise whv should they tearme the de-
my-m:irkc, which was laid by act of parlia-
ment, 3 Edw. 1, (Droitural maletout) a lawful
Imposition, but with relation to the unlawful-
nesse of these Impositions granted by mer-
chants, which they then did complaine of? Be-
sides I observe that they say, that it is against
reason, that merchants should by their crant,
without absent in parliament, charge the whole
commonaltie ; by which it plainly appears,
that they complained not so much of the ex-
cesse or grcatnc-*e of the impositions, as of
die unlaw full manner of the raising of it by
grant of merchants, without assent in parlia-
ment.*

Hitherto I have, according to my division,
drawn arguments from that which our kings
have dime, i\n<\ put in practise for the increase
of t^rir custome.— I will now make some ob-
st nations of their forbearance to put riiir* pre-
tended jmwer in practice, considering the s**-
verull occasions of the time*, which I will pro-
w:;te in order.

* Ast'> Voluntary Subscriptions lor I defence
of tin* Stair, sre Jjird IJardwickr's speech in
puling wnteiKC on Lord Kilmarnock and
othem. Jyird" Journals, Aug. 1, 17-16 ; Omim.
J num. Ap. *i, 1778; Kind's Speech and l)e-
bijfes thereon in Pari. HiMorv, Dec. ;», 178V,
3 Hats. Prec. 7J, 72 ; See also H. 13. Car. it.
e. f. $ $. and Kex r. llcndlev and others,
1719.

First therefore in gene rail, I observe, that
from the Conquest, untill ilie reign of queen
Mary, being no lesse then 480 yeeres space,
whatsoever the occasions were, whatsoever thu
disposition of the kings were, yet in the prac-
tise of this pretended prerogative of imposing
the kings have been so >pa»ing, as, notwith-
standing this curious search that hath been
made, wherein I suppose nothing that might
make for the electing of the question hath es-
caped us, it cannot be found or proved by
matter of record, that six impositions, such as
we now complaine of, were laid by all those
kings, who were in numher 2'2. And those
sixe, if they were so many, though they were
unlawful], yet were they in some sort to be
born withall. First, by reason they were very
moderate. Secondly, that they were laid in
the times of great and apparent necessitie, and
that they were to endure but for a yeer or two ;
tor none of them, except onely that upon wine,
laid 10 E. 1, lasted longer. They were, I say,
notwithstanding their unlawfulnesse, yet in
these other respects so farre to be borne with-
all, as, if the impositions which are now laid
had been so qualified, we should, 1 suppose,
never have complained of them. And yet not
one of these few impositions laid in former
times, but was complained of, and upon com-
plaint taken away, as may appear by the re-
cords here amongst us. How much more rea-
son is there then, that we should expect the
like justice now ; considering that not one
merchandise alone, as then, but very neerc all
the sorts and se vera 11 k hides of merchandises
that are, are charged ; that not a moderate
and easy charge is laid upon them, but such, as
though we should confess his majesties abso-
lute power to lay what he list, jet we had just
cause to complain of the excessivenes*c of the
burden ? For tirst, the rates of merchandise?,
for the subsidies of poundage and tonnage, are
extrcamly raysed, a thing also though lawfully
yet bath been rarely put in practise. Then
comes the impost upon the back of that, and is
as much as the subsidie it selfe is. In some
few merchandises, 'tis true,, the impost is per-
haps lease then the subsidy : but 'tis as true,
that in divers others the impost is farre more.
Besides, these impositions were not laid in the
time of warre, but even then when we were at
peace with all the world, except perhaps there
wen; some sparks of rebellion in Ireland, then
not fully quenched. Lrstly, these impositions
are not, as those in former times were, limited
to endure for a yeere or two, but are to come
to his majestic, his heirs and successors for ever,
as may appeare by his majesties letter-* patents
I in print, prefixed before ihe new book of rates.
. So as if those few imposition* laid in former
tunes had been lawful!, \ct can thpy not by
any means be a warrant or president for our
present impositions, differing so far from them
in all these points of consequence. Hut if
I even those few, so qualified us they were,
i were complained of and taken away, what
! *h;dl we then say of ours sj furre i

427] STATE TRIALS, 4 James I. 1606— TV great Case qf Impositions, [428

them in all the degrees of irregularitie ? Be-
sides, if so few presidents, as Ave or six in so
many yeeres space, and those in time* of so
great necessitie, without any express? judgment
m law, or good uurhoritie iti approbation of
them, but accompanied with as runny com-
plaints against them, be argument enough to
prove the lawfulness of the acr, I dare under-
take, that as well taxes within the land, as im-
positions upon merchandizes, may be proved
to be lawfull. But to ulledge the acts of kings,
in raysing a profit to themselves upon their
subjects, to prove thereby their right, is of all
other arguments, that are, the weakest. And
so I leave it, and call to minde, that when I
told you, it could not be proved by the records
amongst us, that from the Conquest to queen
Maries time, there had been any more than
sixe impositions laid ; I did in that number
limit my selfe to such impositions as those are
which wc now complain of; for I must con-
fesse, tliat in that space, many more imposi-
tions were laid, but they were of a farre differ-
ing nature from ours ; differing, I say, not only
in those circumstances by which I did even
now compare the impositions of these times to
those five or six of former ages, but in ffrjr es-
sence and propertie, insomuch as they mny
not properly "be called impositions. And yet
the frequent practise of them hath been ob-
jected and relyed upon, as so many presidents,
to prove the iawfulnesse of the impositions
now complayned of. It behoveth me there-
fore, that in maintenance of my assertion, that
so lew impositions have been laid, as 1 have
affirmed, that I open unto you the difference
betweene the one and the other, which being
dune, your selves will easily judge, that the
greater part make nothing towards the defence
of these present impositions. For these impo-
sitions, which now are in question, are no other
then an increase of custoine at the kings plea-
sure, and commanded by him to be taken, the
passage being free anil open to all men.
Those other, which make such a great shew in
number, and are produced as so many presi-
dents in maintenance of these, are no other
then so many dispensations or licences for
money, to passe with merchandizes prohibited
by act of parliament to be exported ; as will
evidently appear© by comparing the times, and
examining the statutes. 1 will therefore in
this place, us shortly as I can, riuiiie over those
presidents, that have been, or may be alledged
by the contrary part, out of those records
which are here amongst us, and leave it to
vour judgement, whether I maintain e mv as-
tertion, or be not rather better then my word
for the number.

The first Imposition by them alledged,
[Flem. Clark, Doderidjrel it, that of 16 F.dw. 1,
which, as it appears by the record, was 4 shill-
ings upon a tun of wine. This indeed, for
uutjht 1 know to the contrary, was a meerc im-
position, such as arc now in question. And
vet if I did deny it, and say that it was iayd
by assent of parliament, I know not how the

contrary could be proved ; for though indeed
the words of the record are, ' cum rex prece-
' pisset, ut de singulis doliis vioi caperentur 4
' solidi,' it follows not that it was laid therefore
only by the kings commandment ; for we see
that even some acts of parliament, in those
auncient times, though they were made by the
full assent of all the three estates, yet they
have these words in their preambles, rejr/jrerc-
pity rex vult. But as for rccitalls of acts of
parliament by the king, in his commissions,
and otherwise, it was iu those times usuall to
say, cum nupcr ordinavcrimus ; and therefore
notwithstanding the recitaJl be, cum nuptr re*
precepisset, it is no cleere proof, that therefore
it was done onely by the kings commandment.
Neverthelesse 1 will, I say, admit this to be a
raeere imposition, and to be one of the num-
ber ; and indeed, as this is the first they pro-
duce, so is it their best. Only this, amongst
all the rest, is not limited to indure for a time
certain. But give me leave, I beseech you, to
open unto you, with what circumstances this
imposition was accompanied, and what follow-
ed of it ; and then I will leave you to judge,
who best are able, how far the present imposi-
tions may be justifyed by this.

The first circumstance to be observed in t|u§
Imposition is, that it was laid immediately after
the wnrre against Wales was ended, and at the
time, when tor the selling of the estate of Gas-
coigne, the king himself was in person enforced
to undertake a voyage thither, as may appeare
by our histories of those times, which also may
bee collected by the very words of the record,
which are these, ' cum rex ante ultiroura re*
* cessum sutim ab Anglia prece pisset, &c.9
That ns these times were troublesome, they
were also very chargeable to the king, and did
put him to try all means for the levying of
money, I shall not need to urge it: it cannot
be otherwise. — One other circumstance is this,
that this Imposition laid iu this time of great
necessity was not, as now, upon all merchan-
dizes, nor so much o& in geuerall upon one
kind of merchandize, comming from all the
parts of the world, but oncly upon such wines
as were brought hither from two towns in Gaa-
coigne, Hergcrac and St. Emilians, as may ap-
pear by the records ; [16 E. 1. '22 E. 1, in
Scaccario.] and it is probable that these towns
were then in revolt, and that the sooner to re-
duce them to obedience, the king laid this
burden upon their commodities, thereby to
hinder the vent of them. — Another circum-
stance is this, that though that this imposition
were indeed laid without limitation of any
time, as touching the continuance thereof, yet
within six years following, viz. 5 Dec. a. 22,
upon complaint of the merchants the king re-
leased two shillings of the foure shillings, as
may appear by the records of U'2 E. 1, with
which the merchants not holding themselves
contented, the very same year* within eight or
nine months following, viz. 23 Julii an. U2, the
whole imposition was released, as may appeare
by a recitull in the accompt of one YVillii

429] STATE TRIALS, 4 Jambs I. 1606.— on an Information in the Exchequer, [430

Randall, receiver of the impost money, entred
an. 26 E. 1. And within three years after the
release, viz. an. 25, there followed an act of
parliament against all impositions in general!,
as when I come to shew you what statutes
there are, in the point, I shall I hope cleerly
prove unto you. In the nieane time I will
proceed to ei amine the rest.

The next precedent urged is an imposition
of 40 shillings upon a sack of wooll laid by £.
1. an. 21. For the proofe of which, a record
of the Exchequer of that year hath been
vouched. I mutt confesse 1 have not seen
that record. But by anodic r record of the
same court, an. 26 K. 1, it is evident, that the
said imposition was not raised by the kings ab-
solute power, but by grant, and that also the
same was in the time of warrc, and to endure
but two or three years, if the warre should so
long continue, as will best appear by the words
of the record. ' Cum custuma 40*. nobis, in

• suhsidium guerre nostra contra regem Fran-

• ciss, de quolibet sacco lanse exeunte regnum

• nostrum, percipiendum per biennium vel tri-
' ennium si tantum duvasset guerra ilia, nuper
' concess. fuit, &c.'

By this you perceive, by what means, upon
what occasion, and with what limitation this
Imposition was laid. If you will further know,
what followed of it, may it please you to read
the printed statute of 21 E/.l, c. 7, where it is
said, that the more part of the commonality
found themselves sore agreeved then, withal f;
and by the same statute, not only that impo-
sition of 40 shillings upon a sack of wooll,
which was the occasion of the great grief and
complaint, was taken away ; but upon occasion
thereof, there was ut the tame time provision
also made against all other impositions whatso-
ever, as, I say, 1 hope I shall anon cleerly prove
nolo you. Insomuch as this imposition of 40
shilling* uj on a sack of wooll ought to be so
farre from being urged as a president for the
present imposition, and consequently of the
grievance of the commonwealth which followes
thereupon, as that rather on the contrary part
it may be thought to be the happiest accident
in the consequence thereof, that ever befell the
commonwealth in this kinde. For it was the
occasion of the making of the first law that
ever was made against impositions, and other
charges and burdens of that nature to be im-
posed by the kings absolute power without
ustnt of parliament.

And so I leave their second precedent, and
come to the third, which in time was 31 of the
tame king E. 1. [Vouched by Fleming, Clark,
Dodderi<1gc, Bacon, Attorney Hobnrt.] Ft is
no other tuen that incrcuse of Custome, which
by the merchant strangers was granted to king
fcd. 1. by that charter now familiarly known
anu> us bv the name of Charta Mercntoria,
which, hy all that have maintained his majesties
right tij impose, hath been stood upon and
■rged, as an imposition by the kings absolute
power ; but more especially by master Solici-
tor bath been strongly iutorced with all the

advantage possible for the maintenance of hie
opinion. Nevertheless I doubt not but 1
shall give it a very full answer, such as yet this
objection hath not received, though divers,
that have spoken before, and some this day,
have undertaken to cleere it ; wherein I will
arrogate nothing to my selfe, but leave it
wholly to your censure. It hath been said by
master Solicitor, that though this increase of
custome may seem to some, to proceed from
the grant of merchants, yet that this grant of
theirs was to no other purpose, nor had other
effect, then only thereby to d tela re their assent;
for that, those which did grant were no corpo-
ration or body in tin? estimation of law, and so
could not binde any but themselves alone, and
not such as should succeed them ; and that it
was only the authority of the kings pleasure to
accept and take this increase of custome, that
gave it life at the first, and strength to continue
as an imposition till this very duy. For ' even
' at this day, saith he, the three-pence upon
' the pound, granted by the said charter, is
' paid by the merchant strangers, and they
* likewise enjoy some privileges granted by
' the said charter/ And it was further by him
observed ; that notwithstanding all the statutes
that have been urged against impositions, yet
this imposition hath continually stood, and hath
never been denyed to be paid by any man ;
and that therefore it is likely that no man till
now ever conceived, that these statutes were
made against impositions upon merchandizes,
but were rather to he understood to extend
onely to impositions within the real me.

To this Objection 1 uiako this answer, that
it is indeed true, that the grant of merchants in
thin case, cannot binde tlic whole common-
wealth ; as I have heretofore proved by the
petition exhibited in parliament by the com-
mons '11 Ed. 3. No. 27. and by a Mntute of
36 Ed. 3. c. 11. And therefore 1 cannot but
confesse, that this increase of custome may
very tniely t>c called an imposition ; for that
indeed it did at first take strength, onely by the
kings pleasure to accept it, as hath been said,
and not by the grant of the mercliants. Ad-
mitting it therefore to be a meer imposition;
let us consider with what extraordinary circum-
stances it f* accompanied. — First, as you may
perceive by the Record itself, and as it hath
partly been said already, the king took it not
without yeelding ifcompeiice for it; fur the
merchants strangers, by submitting themselves
unto this chnrgi*, obtained divers liberties and
immunities from the king, hy the same chnitcr,
amongst which freedome from prisage is one
which at this day they enjoy, in which respect
this imposition is in some sort tnllorahlc, thouch
not at all luwt'ull. — Another considerable cir-
cumstance, and dilVerence from our present
Impositions, is this, that it was a composition
made by the king with merchant strangers,
which, though it be by strictnes^e of our com-
mon law, not of force to binde in pcrpctnitie ;
yet how farre by the civil law this doth binde
strangers, which are governed by the*e lawes,

43 1 J STATE TRIALS, 4. James I. 1 606.— The great Case of Impositions, [432

is not so easily decided ; aud this ma\ be si
good colour to uphold it.

The*c speciall reasons, though they may well
serve the turne, to make an evident difference
betwixt tin* and our present imposition*, and
so consequently to avoid the conclusion drawn
from the president, and may ul-o seem colour-
able, and particular icasons to uphold the im-
position it -elf; yet is not this that, which 1
mean to relie upon for answer. Tor even this
imposition, in recompcncc of which the kinu;
parted with so large priviledgcs aud bench 1 9,
mid which, because it concerned only merchant
strangers, did neither in the burden thereof,
nor in the president, 90 directly touch the Eng-
lish ; yet in the detestation, as it seems, of all
imposition*, of what nature or kinde soever,
and upon what pretext or colour soever they
were grounded, 1 s*ay, even this imposition also
was complained of in parliament within feu
yeeres following; and upon complaint; taken
away, as may appearc by the Close Hull of
3 Kd. 2, mem. '23, where you shall finde in rolled
a Supersedeas, commanding, that the new cus-
tom c, granted by t!:e merchant strangers, re-
citing the paiticid.irs as they are contained in
Chnrtn Mercatoria, shall cease at the king'?*
plcu&ure; and this is there said to he yccldeil
to at the request of the commons, which cannot
be but in parliament. But because the re-
newing of it again rested at the kings pleasure,
therelorc, within two yeeres after, by u pub-
licke ordinance made by the principal! prelates,
eaibs, and barons and other great men of the
kingdoiur, authorised by the king*s commission,
dated tin: 16th of Alav, the same third vecre
ot hii rcignc, the charter itsclfe was declared
to Le utterly void; for that it was hurtfull to
the commonwealth, agaiust Magna Charta, and
made without assent in parliament. And not
only that charter, hut all other new customer
or impositions whatsoever, imposed since the
coronation of Kd. 1. till that time, were also
taken away, saving onely the old custome upon
wool, woolfels, and leather. And further it wa>
ordained, that if any man should presume to
take any more then the auuclent custom right-
fully due, and should be thereof convict, ho
*h nil'.l answerc to the panie greeved his t o*u
and damages, be imprisoned according to the
quant it ie of hi" offence, aurl be fu it Iter pj-
nidit d a an oileirler agains: Mugun C'harta,
a<-e >:■ Iiii - to the discretion of the jiMii/e*.
K'i. oi'iiin.ilionum b Kd. '2, in the Tower.

Tiiou-_.'i the fi/ive and aullw itie of thi> Or-
dinance may perhaps I e doubled aud blcini-h-
id ; hu.au-c it was made by the barons, at tin
time uh."-:i thry hud (he biiur hand of (in
king, as hit h been in part objected r yet yon

jsee.llv.it thev deliver not their cei>-t!i< s, with- i \\«jm1» the ».'re:."nf-
ouf •lUi-l^iu^ aNti tltcir 1'c.iviiii ; and (hi* their | the imiim-i li.cieo'

this day paid by the merchant strangers, and
that therefore in iikclyhood the ordinance pre-
vailed not against it. Tis true, that at this
day the mi -reliant stranger doth pay three
pence more in the pound fur subsidie of pound-
age, then the Kngli*li doth, and that by vertue
of Clnrtu Mercatoria. But let me tell you,
that Charta Mercatoria in it selfe bad nut
strength and vertue sulV.c>ent to subsist for so
long a time. It was, as I have said, suspend-
ed by the king himself an. 3, condemned by
the ordinance of 5 K. '2. and had at this day
been of no more force, then it was all the time
after 3 Kd. '2. that is, of none at all, had
it not been confirmed by act of parliament an.
36 Kd. 3. cap. . This was onely that which
protected Charta Mercatoria against all those
statutes made against impositions, and that
hath kept it in lite till this day ; and this in-
deed, 1 mean an act of parliament, is the only
means, that our law acknowledged!, for the
laying or establishing of impositions, and with-
out which they cannot long last.

Von have now heard opened three of those
six presidents, wh'ch are most rc(ied upon for
maintenance of these y. resent impositions,
which arc all thai have been urged, or can be
found to have been practiced bom the conquest
till the reigne of Kd. 3, during which time
there are, as you -ev, as many puhlique acts in
opposition of them, which are of so much tbe
more force, in that they arc the legall regular
acts of gre.it counsells; whereas, on tin.* con-
trary part, tho?e three impositions were the
acts of powcrfu II kings wills, in the times of
c\trcaiu necessity. As for Kd. '2, his succe_-?or,
there htith not been one imposition allcdned to
hive been laid by him of one kinde or other.
Xav, all the records touching this businesse
found in hi> time, being onely foure, make di-
rectly airainst them. — 'I he first is anno 3. which
was "fas you have heard) a release? at the kim»*»
will, i::mn complaint of the commons, of the
iuipoo.iioiis raised by Charta Mercatoria. —
The v.roiul wu* the ( jrdinancc made an. 5. de-
chiiing Clnm Mercatoria aud all other impa-
ction*, to be void, and iiiihcting punishment
upon sm h as should demand any. — The third
wa- mi. It, which is a iu;.e;\-edea* to discharge
certain mnmmlitics tr-jin yielding nn increase
of customc «j ranted bv merchants bv way of
|o.:ne( which in nre:«t probability t!ie king
wni!d ii'. ■. er h ive released, but upon complaint.
Tin1 rn*!.i-f 1 think s.>. because, us the recoid
rr.-.i:ei, n v.is granted in a time of great ne-
ce-i:v. The fourth :» an. 1?, mid is much of
the sear; nature, the iv ita'.l of which contain*
- une very observable thing**, which I will open
liSi'n you. It shews lird in very clVectm'.l

if the kin^s wants, an J
Tl ;■ wi»nU are, * Cum

t>.«i-ni'ii>-- !«. no more in effect , ihvii th.ir whi"h
wa? ihiiitj-ht (it bv all l)ie comcon* in the pai-
hament of 5 Kd. '2. befort? mentioned.

But it hath been yet further said, tint, net-
withstanding this Ordinance, the Imposi ion
doth nevertheless coiuiiiue in force, aud ii at

'pro t \piMit:u.;-.' ::im .";'.•■ im^tr;" 5"c<it!am, c-t
* nhii ardui* life? — :i;>lil.:i -i i.ohis lii'dtiplk'ittT
1 ii.ciMnbcutibn--, pro on irinn evnn -raliouc
f q-nui iutiiut on pce.i:n:iiii proi'smdere oporte-
' bit, pcunia pluriiiv.'ML :n iiL'eiiP'.us in piestii-
Mi; ac iii-'ipvi-, pr«i e » ipwl cxicua reg!ii ct

433] STATE TRIALS 1 James I. lfiOfl— on an Information in the Exchequer. [13i

' terra? nostra1, simn! cum pccunri nobis in sah- i

* vt»nttunem praMiiissorum tjm pert •!* rum (piain

* per coiiiiiuinituicm n-_rni nostri comccssi ad

• sumptns predirtos cum le*>linuliu;i'.-, «;uu e\-

• peJirer, f«iei. •;•.!!. mm sutticiiiiit.* Iiccw^,
cause, if ;u»y cur.su may possibly be just, fur •
the kin-; presently to put in practise his j.n ro-
gntive of imposition*. Ilia expT-nce by rcasm
of a necessary wnrre in Scot Inn I ww> so £reat,
as the whole leveuue of iiu- Lm.:iiomc, io»e?h( r
with ail avil which had l.eui Intel v fn anted i
him, rouM not with ilr.it expedition that was !
requisite *upply his present want. Doth bee
toe all this make use of In* prerogative of im-
posing? Or doth hee hastily, for want of nil-
*i*ed proccc-.-lin;*, t:ike some other course pre-
judicial! to hi«» rii;!it ? No. The ucord further
nave*, rii'.t he enquired hv all waves mid '
ineaues, how he might must con imodiously and
lx.lv levy tp.ur.ey for these occasion*. Alter
which advised deliberation. the cour*.c at lu»t
resulted upon was, not hv absolute power to !
lav impositions which «d* ;;ll oilier ronr-iv. if it \
hf.'J teen 1. nihil1, had In i n tlio ioo-t spi cdv \
Mini beneficial!, b.i a ri-ur j '.1 iv iuMifiahlf* ; I
uhicti was, that mer»"! ;.i u ■' .old I,.; ea!h d t - i

grfher, p.ml that thi-v >l id be i..;re 1 r « d to i

lead ;he Lini^ upon etett i.\r\ of wi-i-l P'*. nnd |
iit)i a every l:i*t of leilrr .V. a! o\v the nnriei.t !

* * •

cjsfoine; and that tor il nr -.viuiiv of tna; re- !

payment, \vi;houl licfiep or di l-iv, wl it Si are!

llie wurdsiof i'ip rccoM, uher.'ijy if ••<•<■ ".is that '

i.-iiely a pretence of u lo.-ne a<id r»*;"i vi:n ni had 1

oven before thai time i.»i d t«» e: lonr impo*:- i

fious, commnudmctil should !><• nit- n !» the i

cu^tomf-p* to t'c-rtifu* hit 1 t!,o I* »:■!•. •■."•:• ?!.:•»

u.ancs off. ery parti-i.li'r inenhuj* r i. *i -h.ii,! i f

*•» K-iid into the km. . ir 1; t:.,y m'jIi ;.«vo.-.!- j

laL''^ r:t«:\c full ->:.-''■• iio. And 'ri-woithi

tut «»: •• rui-t:, that ;li.« i ■ m is for i.o ! -ivj^r I

l.n-: ti/.ii tn"u Aj 1 :, : ;i tVliI.r !*«i:o-. i;,^. '

Th j- l i'a'U »>• w.ut: «:•'-. I I.v it; . i'-r rt\, >u ;»» !

ym •"■ . ihuJ in ail l!.> ..',:»• of i his Inn.; V •. ?, i

•..ipo-.i*io»ii ui-.-e. «•• t 01 !\ .ill :;.» * lit r fi:'.::'!,

I'.vii ;» Hie tinier <>f hio .. :i:*:- »l mn ->-.;«■, ',y,\

tnev vv:u aU«» roiiiV-.:.:u i :■*» unju-*! :-ii. I »•'.- "

t. r!y u,.i ivvjuil.

VV#; roine now to tlu* iT'.ii'.ic of l.inj i'.l. f.. ,

in v h«-e time Uit :r '\as im i»r:»« t'Ce or i: *..'.;'s.

Ituit l-v the poi:r\ of mas: cfiiol oe ti.«»u;.ii: -jo

to brj'ij. the people iiu.i*,r 1i.11 •, oi.e «>f ! ■ij,«>-:-

t.osi<» uithoi'i Hs-<*}.1 of p:»"l:;,iiie'i», t.iM ;t \...> .

by i;:i:i attemptt'd : in-otiiia-!i. ;.- I h've i;-. my

ol*er\atiou out »«f the :•« • «rdi rol.i « i"d im

f-*se tlit-fi live 01 -k -if. 1 -rail uait*% all oft!:.- 1 i \

itry rolourable, whi'.-li in liir> ti:ae we." j =•• m

prartii*e for the r:tisiuif of iniinis. :t:iis; wx.\ -.-f

n*»ne ol" thi 111 but \». s ivs'sfni I.v p; rl .tini «•»

*uid iTo.-tdt inn- d. -'!!i'J ".iiirh wim.'-i i s '|

with I. no w:t», »hnt urn !i..nt«» .•!■• uhl l1 .'■" !■»

p*:y hen so nun I* i,\- u c,n\ j'i'r'iii »ii!*' « \-

L'^nvii or miiiorird hv *v.iv ol : • i.*v.- « ft'i.-
* •

tOifi*.. lit.s -eetlis lie! ■ 1 1 : r* J» •:. ;b'i , ! •■ .'.*.•

i\«-r.' inau fi»i»jfit tr.mt of In- own wh.r I ■ '•-••

m

«'i; a».d this ::!vi, to ,-»ii'-»- n u.ov>. oi'-ur ,;■,..
• a« ncif i- ittt* itififrd I" r ;;i ih« ..»''• • 1 v. .•.■:■ .
*.nil vtt. a* it nail: It^n i«u:tlv ».. .1 al»c»'J\. .

this was always held unlawful, as mnv nppenre
by the reoird" of 17 K. 3. [No. 'J7. Ko. I'arl.]
whi re thy cniMii'iiu in parli'tmcnt *-ay, that ic
is a ureal ini-chiefe. and au'iin^t reason, that
thev should I e enfoived to n.iv the decrer tor
common i'ies, by reaton of a < iuirvic upon niti*-
ehandi/i^f by tl.i* tyrant of ii!« reliant s, the
which i» a f!:.ircc to the movie, iIm»ul'I> none to
the meie:>aur. Anno V."> K.iw. :?. |No. '2>.
Ho. Pm-I.] the commons rc«iii:i;j, That W lure-
as merchants have granted antvv incieiiH? of
Ciibtoinu to the kiln.', pray, th.r.t rouur.!r>i«'ns
to collect such new increase ofcu>tome \>\ *in-
i;ular »rant of merchautt be r.ot awarded.
Anno l»6 Kil. 8. cap. 11. amount the printeil
statutes, jirar.ts of Mib*idie?» upon woe]U by
lUMch.ar.ti without a-*ent «>f paii!i.:n» nt ar=.* «le-
clared to be *oid, ubicli a«*t wa> iiiiiile upon .1
petition of the commons in anno .'>(> Kd. 'h
[No. 'IG. Jto. I'arl.J disirie*; a law to be mad?
to the same 1 fleer. If impositions raised by
the grant of merchant'*, whi«'i» I .suppose to
ha\e been I 7 simo pitblii kc ai»d solemue in»
slrumeut, iridt r t!ie bnnds i-.ud s-eaN of tho
priiieip'dl ineicl :Mits i.f a'l t! «* irnat town-, of
Kuclund, Ivi.M* callnl totreihertorUiat purpose,
were m«t i»f f"rce in this bch-df, muih les>(5
was ih«. ir b.-re :^-e:.T without any siueii solem-
nity, which aU'i \—.\> n c-mm'4-** in pracli-e m rl.f
»lavs of I'd. ,i. !.i..| v. :s ; '.» used in the !a\;i /
of thrse pre«*;t inipi-i;; m>, wl.i*"1! vei*no\f
comp'aine of.

Anr-th'i :i;.-:'".es 'f /ai.-ii": linpo-iti.ms usrd
by Kd. .'. v.as iv v -.-.%• nl Pi>«'-.-a-;M:.:i for
niiipi v -v.i: - u ,- «: s'.-.i'n'e in fr.rc ■, v l-ich a-
-liVi'inI ti .■ !■ •• u^'! i:.er:"'.a:il-. Mi->r «-f
hi. i:.,.o.si . :. «•!"« u:* I. mic •«;■ «.il*ir, laid alter
11 ]■".. .". e. •!•.• nf il.-s na;ure. V".- anno P.
ran. !. a li«. •».< i!.c t:r:.i:cd i;;ir'.-v ., v.m s1.;!!
iiiid il en: ctcil, • il:it no ni 'i upon p-u'e* -,t*

• dertii, los-- c.f l.u-ds and ••'•01's, s|,.ij. | , \p,rt

* wools.* i • •.•.ir"'i.\i !v :•.:'!■■'■ t!:j? n.:.' .'_ m*
this. :,:»u:»\ ir.ij»..-:h ■• •- - ! v w:.v oi o>i • r-: ::•••'»
for i!.o:if\ c. !.'« to j f s.i j. f lie 1. 1 s.: d i.i:\:.:i-
smijf, tiiil ;ii> '. 1 . \ ; . « ri i'.i.'i-i%i- j t:.«- I.i.ij,

■'Ji1^ in ]K.I • 1 '■• 1 •.».■.•: t «.-e .. w,-:re i'i >(ut-
i ilid, aiici ti r ■ !..• r ii*..«Li "f iii'.,-;,.i' \'\\ .r\r 1 o 1
hcav . uiifooit «'*ie« "i t.:.? l.raii.-, w! .« 0 ]*c j e. -
« c-.vid tu i v« \ •.;••.■ I nr-'f's jm ,• :.» j: = |:,,,1'lr,f
h" wr«!e t«i lie arc.1.-'1 sii ■ • « i ■•:iu!'i::v,
His hi i-r is ev/.i't '.j :i .« ••«"d. ' J J . :'. No.
'J2. I! 1. A!e-:i:n.| ; 1 .Is s e Vict ; ' i •: •:»--,-.-i

• a.s ih ■ peoi !e weie nn:.}i li irh 1 -i .*■.'!. d<-

• \cr* tsK'.r'C*, taihi.M s, ;,.■.•» >■ i,. ■.,-.. • , -,-. ' , 'i
•' he 1 "ild r. it ''K • ' i-ei I » * 1 r \» j • .• • !i ii»,

• lr:» bei!'-; * •! *"■ 1. c . *l Iv I. ■■•■' .1 \ • -t"-'

• (■•■ilil liol iii v I « : -.- *«.' 1 . *i • 1 , l,f»
' r 'p: •:* d i:.-- ; ri-!;-' !. • ' ■ \ . ' r * | • »j '■.•
■ I* « •■: 1 \ : 11 I <■! f ' » '. 1 ' • »•• »-i» •> 1. j .1

• w .- h a.i, .'•!■.. . .'..■.•'••' '■•.- ; « ip!« ,
' !'.••■ .':■• !:•«». « . ' ■••'.• • ':« ' ■ e .'*•■: I

• j ;■ t , .- .. I.- -i . ■• ,! i.i .!•'»: ' •
Ih-. " ■ •• : , -. •%-•[»• !•-• . • 1 • •- • • kn ;;n ■*. '-a I

!i ..- I. :.-«;,:. : • ' •.-..■•>• ■|,»'i! ;••■!•.-,

*e: j" • 1 : ■.' '\ .■ ■ > ••••■ !•• \ ' • * . 'h. I il. I

!!• ' ;.' . ■ '. 1' .»•"•••• 1 -i . • : v 1 h. I"l 'lit*

1 r • !: v -' 1 '.■« ': ! ••■ I \.\ :■.'. I..- I.'-.', S! iwds.

435] STATE TRIALS, 4 James I. 1 <106~-The great Case of Impositions, [436

nuri lands were forfeited, as he spared nut to lay
onload in this kinde; insomuch as you shall
finde, that in an. 13. [I'd. 3. Orig. de Scac. Mo.
3. & 12.] he took tor dispensations to pn>se
onely to Antwerp of EngUMiinen 40 shillings
upon a sack of wool, 40 shillings upon 300
woolfells, and 4/. upon a lust of leather; of
strangers 3/. upon a sack of wool, 3/. upon
300 woolfelU, and 6/. for a last of leather ;
whereas the ancient and due custoine was no
more then 6*. upon ;i sack of wooll, the like
upon 300 woollfells, and 13s. \d. upon a
last of leather. Immediately hereupon, even
this very yeere, was this complained of in par-
liament, and a petition exhibited by the lords
and commons, [No. 5. Ko. Parliaui.] that it
might he enacted, that this maletolt or impo-
sition, because it was taken without assent of
parliament, might he taken away, and that a
law mi 'i ht be made, tint no such chnigc might
Le laid, but by avsent of parliament. And they
further prayed, that they might have a charter
under the great seal, conlirmtd and enrolled in
parliament, to the same elfcct, which was per-
formed the next parliament, as may appeare
by the statutes primed, where, an. 14 Ed. 3.
cap. 21. you shall see an act of parliament to
this c fleet, and tir.it a most effectual one. And
immediately after, follows the charter to the
same effect, of both which I shall have more
occasion to speak hereafter. Hut such were
the king's want?, that, even in the mean time
between the petition and the making of the
act, he could not forbear to raise money by
this monies; for in an. 14 Ed. 3. [Ho. 3. Oriu.
de Scac] the eleventh day of March, in the
end of which month the next parliament began,
as may appeare by the preamble to the statute*
of that parliament, he tooke by way of dispen-
sation 405. upon a >ack of wooll, when it should
be safelv kuitlv 1 at Uruxdls, ami 40*. at the
port within England, which was indeed an in-
tollerable charge. Hut the better to colour it,
the king, in his commission!) for collection there-
of, pretended, that the merchants had been
humble glutei's to him, that the passage lor
woolls iiiiuht lie open till Whitsontidc following ;
and that to obtai:ic the same, they had of their
free wills offered to civc him the said summes
as may appeare by the recitall in the beginning
of the «aid record.

In further prevention of this mischiefe, in an
act of parliament printed, made kii. QT Ed. 3.
cap. 2. there was a speciall provision made
against all licenses to transport. Nevrrthelessc,
as it may be col lee ted by a record of the same
yeere, vOrig. de Scac. 27! E. 3. Ho. 7.) the king
raided 10$. upon a sack of wooll, 40t. upon 30U
woollfells, and 4/. upon a la*t of leather, by the
•nine means, 1 meane by way of dispensation.
Tor though indeed it be recited to be granted by
merchants, yet was it no otherwise granted by
them, then for licenses to transport ; lor at that
time the staple of wooll was in England, as may
appeare by the printed statute of 227 Ed. 3.
«ap. 1 and 8.

And here I thinkc it fit to make this Obser-

vation in gen em 11, that, whereas in some other
of the records of Ed. 3 there is mention made
of Impositions upon Wools granted by mer-
chants, because the passage of wools was in
those daies so often restrained by statute, ns
may appeare by very many printed statutes of
that Ume, it is very likely, that these grants
of merchants were also for dispensations to
transport, as appears that this of 27 was;
(Yet you shall finde an act of parliament for
free passage an. J 5 Ed. 3.) and it may well b%
that some of the statutes, being but temporary,
were not committed to the presse. This kinde
of imposition, by way of dispensation, I finde
not to have been at all practiced from 127 till
3D, whcie without any colouring of the matter,
with pretence of the grant or gill of merchants,
or any recitall of suite made by merchants to
have the passase open, as usually in former
times, but plainly and aptly, the king recites,
[39 Ed. 3. Uo. Q. Grig. Scac] * That Whereas
' English mci chants wcic by act of parliament

* restrained to transport woolls, ucvertht-lcsse,
' upon advice with his counsell, he thought fit

* to give leave that such as would might tran-

* ?. port woolls, paying 4(3 shillings b* pence upon
' a sarke, which the king command etb to be h>
' vied.' — This Imposition lasted a very little
while; for the nest parliament following, the
subjects granted to tho kiug a subsidie upen
wools, wnotlfells, and leathcr,to endure for a very
short time. And yet, as it appears by the
words of the record, the king doth thank his
people for it, ' with all his heart.' At which
time, for the maintenance of his warres in Scot-
land, he obtained the continuance thereof for
two veere?, at the end of which two veeres he
Anther obtaiueth in parliament a continuance
of the same from Michaelmas following, for
three veeirs, for the .supplic of treasure for tlie
wane.* f 13 Ed. 3. 0 cc 10 Ko. Pari.] Two
yea it"? following, viz. in an. 45, [Num. 42, Rol.
I 'allium.] the commons doubting, as it seemeth,
that the kin: had s-ccrelly concluded to in-

i crease, by way of imposition, this subsidie,
I which iti'»ycildcd to in parliament, and granted
for three jeese*, made a conditional) petition,
that if any imposition be laid upon woolls,
wooll- fells, or leather inure then the subsidie
grunted in parliament, that it imiy be taken
away. The kin^ an s we ret h, that if any be hud
since the statute, it. blmil be taken away;
and then follows the printed itatutc, an. 45 Ed.
3. cap. 4. * That no Impositions be laid upon
' woolls, woo!l-fells or leather;' which is the
first place where I finde Impositions named
in our printed books. I finde them first named
upon my Latiuc record, \'i Ed. 3, in the kings
letter to the archbis'-.op ; and first upon my re-
cord iti French, uot printed, an. 21 Ed. 3. Num.
1G. Ho. Parliament.

Hut to proceed. About a yeere following
this parliament of 4.r> ; nee re which time the
subMdie granted an. 43 for three veeres was
expired, there was another subsidie of forty
three shillings foure pence upon a sack of
wooll, as much upuu twelve wore wooU-fclls,

HJ STATE TBI A

-;,.. 10, H« Pari
•nnc in Guyen. in andun for two

'in Uog liLtiviae gjie

E :. 3. Nu. 13.

„i l>e l.ii.l during tlie two

ij lie impluvvd

■

ite Senc.) ihe king to.it,

■:i a suck of

■

llll I I 111- Ci-.uit III'
. ■ ,. | ; In:, (|

- dui Dpi !'. other iini'i
■
■ I M Ed. a. Ro,
1 1. And yet you rnnj

■
...!■ UncuiiMi' lollcraoic
..■ in tliosi.'
■ 'll"*il>R, [3D

■

rncog otai I

Hut wn

rl, tlmt li'.

i i nihera, wbo

. and counsel led

for tlic trnns-

■I I, •■>■,■■ ill I i:,-

I ■ ii"- Maple at Cnllise,

■ i.mi.miti'iiifiii'

. .i! bad put ii|i.'ii ".i.ili-

-, for .

. . '

'.mill a one us ttMM
to liniu it Imili bei lie

■
i ret ilwj utvtr

-on ofl £vbiuirion m lite ErcAffner. [4Sa

thought thrmt..-Ivei secure from ilii- pimiiiiiiuenl

Ol' lilt! Sllllllli

oj p iiiiiinn.,,'. m rwij apfwaaa > ■

i>ri»r-,l .ii I l',|. .■.,(,. uj, To oiled ge

thrwfcra HU "i 'In- kin. I, ilni.-l.y lo prove (lie
lawfuloe* ol ours, carmol

■ :-l,:i- [ linve i:ml, til', re i- fiUTC

more reason an I ColfMX I'm- m: 10, I hen for Our* |
tiled to pay,

r!i:il In il mil I,, ;u., '.

■
ii.iv "Incli it-irii.n.-.i h'tit paiwaga ; dim.ini

■ ■-■■ .: i ii ii v bit i op o !■"

• li trade, prime no statute hit* or

■ otbra moke lot nju,

lint ii iniiv l»e li'rc nhjc. ti'l, tlint the Ung

. b 'ii ■■■■ I." ii

reMniini is • ruolcmiit uiiil inmost Inn-, and

, .-'■ ikiili imply a reslrnini u|ni;i n

■ pa #o, ii'i, if in caaa

altera tlie roairnint il not -ly by lire kinu,

Iiut llie 'vlnile MUM a Him I Mill m padiaJBMU,

for some urgent i inie, it In- nabm Fnl to rim

license for ■ I

:i ibc i

for

oilier PUIPOM tbtfl t.> raise U imp", il ion, (16
;;i our Case f Bot ol litis nurl MngeU hereuliei.

(\noiln.-r timet ipI" uiiiitiy Iiii[i..MIJuii5 uilli-

■■ '. liMii- ill |>iirhniiiciit, |.rur-

Wcd l,v Kil. 8, mi b) traj ol" ' t|

.

hi I In- k i ■ . ^ In in.-.- 1 1,-, fmJ all lln |iitliit.-, r.Mll-,

■ad (..; ant, not ai iiie< ■UMeH tabtct-vris tha
bini* chamber, lnii dating nlatnnJjin pailm-

■ like -ill i ii mil) of lii-
I; itk i.iu-ly it is en-
rolled in ii mil hvilwllc, .ili;> li ln.i..

of [l.c roll rrf Hit orditi ** But Ae only

■airntiiil di ','■ .■.:..,■ b two a ihia dad an act

i., iimt iim Imili not iiie ii'jiih

,1'tln-

,„i "iimi

■ i hi i ■

.. Hon, uu.k-

■.-..! II ii. ... -.:.. , !,, ■ !.. i-.:.- li il W«f« BO Other IBM
mi ordinance roam Ity the king, the utelMtl,

:■ ,il I, ,| ■ .. !

, -i.i ii by cootaaanM of time
omsly the rAr*ngt*i bui I

;,:: ■ ba loma atkeri of
this culture, nml we lincle it u-n. .
n timet of stiitiiiea arnl ordinaBi at
and BOtitiiorUj nacd I

iln- one or the other. S ibon

■

■
unpqpitum, niiboni Imr o»n anasi
Hi,,, b« ihi ««v ol ordiua

yi-t ii liirtlin

■

■■ "iiliall, to

mahe il h»»i too ckerei p»n»g« «itl^ln' ittti-

■ :., tin.- nine

4 :>i>] STATE TRIALS, 1 J \m es I. I GOG.— llic great Case of Impositions, [440

The h*r»t iinpo-itiiHi of tin-* U in»!e bv wnv of
or.iiiMiicc, whirh i limit1 aneieu,»t ire records,
wih 7 11. .*>. iini'.li£*l ill- i::-.lI-i..I< of the Kx-
c iit-MU. r, where it h •*;» if I !\ w .«y of n cittill.
t !;:•.!. ihchm^i'i.r.-idtTUi'.: how iusm r:Ji:»i.i •», whirl,
i.iakc irrt-:it. f»air.«: by trading, <«ut:b». *> well :is
other- lo i«.ssi.si i. :\\ wirh ticu*ure r": *i !.".• warn*,
t'?\%.i chilly nu -:ilfrii!i» how at tlitsr ins rt- it\ lie
hud i»i. ■'■«■(" the -L:ij>ii< i:i KiiLiand ; the:'. t\iro at

by the president, of 12 Kd. 2. already cited,
whore the king promiscth, that without fiction
or ili-l. iv ho would repav them ilicir money ;
Shi;»I\::;l thereby, th;it »on»tt'ims fiction had
lit in ::-t i : aittl dout th. -sc iir.il loane which
w:-.s 1 1 .1 1. «». the very ye« re hcfoie, was such
a !:■!:■. "i ui ;*.v us I sptaLe of; f.;r otherwise,
without «p:e\-:i mi, tin- kir.-j; would not have re-
leased put of H, a-* in iy appearc by that rc-

Jjis paiiiaiucnt hi'd ;it Yorke, Iy the prciatts [ com tl-at he did. 1 "«.»r ::' t!i« money be, bona

ears and barons it iv:is ordair.ed, t)i;.i \\\a ii'cr-
ch.inis should vii id unto the km:: a s'lb-nfje
upo.» luerchniuij/ts. T!iir> s-d»sidie t,r ml her
imposition thus .solemnly ordained, and in the
limes of »u urtat necessity, was no .sooner ctt;;-
bhshc! i hen revoked, ns may appear by the
word* immediately following u> r!iesu!i>i record,
whereupon the iiii*rriiaiit<* of thtii own accords
Melded, and iVee'iv e:»ic 10*. u »»n a v.rk of
wo'dl, as ine.' !i upon Ji'.M) wooli.bs, aatl '^0*.
upon ala-.t of leather. In;- a short time, by way
cii iii^pciiiaiioii or licence, towards it;:1 luumte-
irr.i' e of i he warre.

The i.i;e .s found anno '20 K. :>. [.\u. II'.. Ro.
I*1.'! ] wla re (he c«.nuuur.s complaium:*. of an
ir."*-i...!. in uf this kinde, laid by the prchitcs
c-:is an i b*i-oi:H in parliament, and Iy t"i«»
ii.r; ;..ne.;*. • o f in- rcliants it wa> no! di nyid
::ii>:iti - •. •. • •* ::•»! :h;irMiii was just. Onelv
i» \\u*. :•:'■•. : .e i i .iin, ib it as »ct ' wss hoi
oni'.i i:.c.: : ) i .:..• ;: a v. :\ ; ;".r l J: ,[ !!■•.• !.,m«j

J'uh, buirniU'd. iiP.d trui\ inicndidtohc repaid,
then doal.ik^e the eon:>e is lawful!; if other-
wise, 1 h..l'! I Li> kiiide ai> » i\* uulawfull as any
of I lit: ret.

r.'iw ;•:-.! ihe tliird dul once or twice borrow
in thi* Uiude, '.o may appear by records already
rirr-il to ar.olhcr purpts.^e, with which 1 will not
a'jnine tiouhlc y(»u.

Tiiere wiih yet another dt vice for raiding of
Impositions hefiim indeed by Kd. 1. and con-
<lemiit.-d in the time of Kd. 2. hut revived, and
lui.cii pricri-ed bv Kd. o. which was also bv

■ m

way td' (inuii of mercluiius, and yet not alto-
gether the same that J first observed to have
been so much piactised by Ed. 2. but is much
more co!ou;ub!e and tolierahlc. For whereas
that was a irrant, or rather a niccrc uui't, with-
out any tlinii! ^r:tuted b:iek acair.v.* in hen
thereof; this I »"«' !*p« uke of, is a .«olcniuc
ur.irit indeed, made by iuc nhants, of an in-
t:< : •• of e'.-tonie, f-»r lil*-ili«'s anr| frcefioms

l::\.[ ::'\.:r.) ;; » •„ -.•.-.t saei-ies of imoiu ■. of .iier«» j an i other valuable p:i\ tie.. ^« s and e:\ei:ipti'>ns,

;.;.• tl unto th. in bv tht: Uiic. Thai former

.lav .

eis pif*ei.l \ i k *■ \' ,-, to o-.« re- )

p;iM i ..u: i4' i.j^.nl s..i."-iii, . RTui I'l.ufuVit ; «';i- u,A» nth:/ etjurt'inti*. i his is, i/t/'t* el
ii'ihl ii> . !.;■.■* yit i! ■-•/•i ii*:* i vl:".-.ut «»eat , i'itLi*tir I'l-i*. A\\*i iude:d the reconvene*?
<!:.:.'.!'_'•:'•. '.'.'- k-»m» ;«iul tl.e .:m-i" haM*. Kill i lb >t the luei". o .m^ b:ul I. V tliis charter granted

tht

ic •!••■ t su.i'.' r: -!l : ,.o;*d, ;!•_';•■. .^; i>iO:o*itions
I v »-.;i" of ( !••:;•. c-. i< ti;-.1 *..<:• l'.ill«>wri;r,

* < ■ •

milo limn, ;u:iue ili • ;r i/ant to the king les-e
*.;.lij<«'t to r^iprol1, rj,( n o;her\vi«»c without such
rei.t»»». pei. i*e it would h.".ve been. I IIICMII lliC
I i;:. . i i..', :.\i •sreth j!- .1 \\\i\ wir.- \i..\ i,: ' t»r;..i- .if i.nMr'.:.j».L st rangers so o'.ten reawni-
t..i •. »:.i"i;;..: ;. c.-* ;*; , * :: -1 by the a- t !<.' of ; Ik .\. i :v..n n.^^t u- '.■/ ll.e name of I hart i .\Cer-

* t.- • piclt.tn, i'ij-!e-, .i''.d b«; »'!h, a:.tl oilur i e:itori:i, whiih t!i« u-ia »• werr damned all the
1 D-.'-.iT me;:, 'M\ I si.ii;,- (.f tli:> c. iimioiis, lei ii i tj-iif of Kd. v?. fr iin (he tliird veere of hit reicii,

* i ;-i^en: ; « . -. ^.'.'.u!-. • -j \ :* o!t «-'i:e is tb:.f ', vtt «■•■» ii ie«. i'.ed i«y ]■'.. IJ. even that very

* -•!• !i i:v ••I'-itiou"-, n.it t\v.'.\ I -»ii'. ? e not dr. uu • veerc, when he iil.^ui-w deposed the ku»j» his
4 i ,:o tMii.M'.].'.' ace, but t-.'.c.i .•...^y., *: I K. 'J. \ fit her. and u-urr-cd i-» ei.ii<c!f h:s enmn. For
;\o. h*. • ji appeared by ih:* peon;-, (t Ed. 3. Iin. Fin.]

Tl.i re are "•*\iw t>\xA'- »f thi^ ' ;ude. bill ! that h*» ennniandid the >ame to he levied the

i:e\Lr a:.y tlrt thtl a!-: ! • c •. u. .11. thoui'li thev . verv fn-r win of his reiuue. What hath b-ceii

ivive ::l\% ir.es been :st *.aiipa;i!< ••! with all .>ueh j said :in:unst this kinil of imposition, I shall not

e. .•:!. .i-t ii e • , i's v.. re n;i; t !S\t!v i'l-.iv'.- (hem ! neitl here usiaine to rtyeate, only let inu call

|\i-?»-i\.e v. i.i. ):,. cou'.i' ■Ihrii'iii ; as t • be laid in i to y.«i:r reiiicuibranee, l.ov. (hit cb.uter, as

t:.e tn.ie t;f w:prr, to he lim.ied to a vmrl lime, i neednrj a better prop then bis owne strength,

with ioiiM'i.1 tif .nt irhiiiu-. If the .ii.ih iriiie i au«l validity in law, nih in the same kin«j;i

«■:' ;:'i tiii!'ii.itn«> ,i paili » m"ir, j..*. red v-iili the , n -!«;iie confuined by \ aiii.tment, and oik Iy by

a-t.it of mere! a-.its, we<t* in l.':''s-.« .;• \,s nfi< of ■ thut sirs u&rtli contnuitth in to:ee at ihisdav.

!• rce snh:c:e:!t t» upholtl ii.oi «%.t.oi:«., uiiu Ii ' You have he;nx| live or si\e ^cvemil politique

Ivs-c will an er:erofthe kin*, an 1 hi- t on,i«e.I ' iii\"iiti uis and d« vices for the « ..sit: dnwiiis on

ent of p;ti:iauit :.t nj.ho'il tie m at tin*- day | and >\\c rtnmj of lhu y.ak of Impo-ition^, :dl

t « iai!\ .i'tir so maiiv ve»rcs ih-roiitj*H"iuf c ! orn'ti-»d bv this i-vid* ,%.t and potent kinc, VA.

-t' ••'!:•. i"- tot i. mi t«» :'i!^e l'i p i?it.o»i-. \ )\t ".\b ■•■•.' tmit*« uere md.erd wo ii'iiiibJesoui,

I •'•'•!«•. I »\ i I. ;!. ::ii i .-i foi'iii - ,ii,,!--, v. ;.«.. i..id •■..'» < harji'- « k» : v « ■ v - i c\( o-:ve. us it i*

i«v\.:vol.! ii'iin.v.! «M I, :....e i I..I.H.C f.oi:i no eiancil, ih:.l :.e i-.t nor anv wav unat-

l!i ■ i.u n Ir-i'i-, o! s» nu.t !; ab ••. e t!.-.- old •i«- tempted to r.i>r l ion ,, w itboip li.e a-sent of

Mini' ur<m ::i*.r.h.ti-(iise e\poiied i r uii;«'iud, | tlie eonmuMis, whom he alwa\s lound uilwilU

winch ioane v\.;^ iu\er re}Mi<l lo the ineicr.ant.
1 li.i'. lhi» was an old praelice, may be eellecteJ

mi.Iv and haidlv di; wr.c to uiattcis of charge.
One other way of impositions lie used, not

■ 16. Hn.

[•ml.] Ii,,' ,. I 'I <r«i«e at

' K:i-lti . ir- ii

';■:, !nl- ,'. mkM IMIV ,

ihowgfe ii Im'i mulMd theM

v. lni.-li T haif

wirli ng to ja*ttfi< il,,..,- pKMDI unpoMdoM

iiiii udu which I rtwrwotitofthu i

m»kot!i ine rather I') im lm,\ Uiiil. llii- im-

piisiln.ll ,.:.'■ .

ifant ii w«- ■ .

ND urr. Fur i.m, 'ImuliJ

ili,; ,-. .nun,,:., ■ not bt nny

merit of mijr

■

■ , ,...i_\ ili,- longer cm-

I im: ■ i- i . ■ ii; on nny

I. itiiHnr, pt-

:.. „k,- Ii ,,,

■

■■(, llitn k ,1 Ii,, |.r,.i-

,|,'iu r,,. om present irapotitiom, Bat whether

,,r I In' ., i1ii|.flii,;i1 mil „r ill-

ttcm, I leiv* ii in M,nr jndgnoenti. You lure
henrd mj ol -■

:., i ;■■.!.■, cit.-m iii the

lll:i[. of 1'.'!.

,.!,., -Ii.,

:, ili,' M J

; Sci«;.l iiih! thai whieli lulln

,

.

■,,l i ...

Lull, uri.-n DUO
>-ii. .in, I M le»*e i' i" '■-■■

,.ll,T,'ii- llii'S|i:iiiVii!i< .
■

ll-l illflini' ,.l 111- -li„l :n'-

-i,i,'ft|jf(l ofiMtcha&tt
«£*in*i |iu:a,-. in' liml nrdomtd, ■ ■ I

I I. , Ml forth, niitl llml for iiiniri-

. [In n ■! aeld be p lid

bj iii.nl i biftinp fbl mty HKI of

i'hl'- lin three Imnilroil h,m,II,'II«.

Ill kl'if. .mil

lixpeooe of lb* pound upon all otter mcrrhmi-

,liv,'« fur vrcn I, 'II"" I" a ; !■'■ ■ iiimirnnlrili

hi. , iisiimi, i - (,, 1 1 ■. i i In' --lint- .11 conilnghr.

'[ be very ncm m en mi'l purltui, ,

r ,...-■ , . , - il mil-.', htrdi H-.',

,.i ."■ ■ ,.

K.1I l\,r.| I', , 'I, ,„,,„,-,■ ,,,..,,■!,, ■Tint mi

not llii' LiiiL'-. inlniliini '

I kttt ii ■

413] STATE TRIALS, 4 James I. 1 COG.— 77m? great Case of Impositions, [444

Records here amongst us, of the times of Ed. 3.
in which, though his reigne were very lone, and
bv reason of his warres, and other excessive
charge, more occasion was given him to try
the strength of this point of the prerogative,
than ever any king before or since; though
oftentimes, and by many politic ke inventions,
as you have heard, lie attempted to establish
this prerogative, of laying impositions without
assent in parliament: yet cau there nut be
produced in all his time, any more then two
presidents of impositions like to these of ours:
that is, imposed by the kings absolute authority.
And yet these two were also, as you peiceive,
qualified with such circurmtaiu es, as, if ours
were such, we should have held them tolerable,
though perhaps not law full. Vet they, such as
they were, escaped not without being com-
plained of, and condemned also in parliament,
as you have heard.

It may perhaps be, that S' me one or two of
these imposition*, which were by assent, or gr.snt
of merchants in this time or Ed. 3. were in tunes
when the pas^igc was open, and not retrained
by act of parliament, and s.» to be c<inp.iud to
our impositions. Hut whosocvt r shall, by look-

ceives a great blemish ; those which argued for
imposition* did not take hold of these, but chose
rather to con t esse, (hat no impositions at all were
laid during all this time, and labored to seek
out the reasons of the discontinuance.

I will briefely shew you what Statutes they
are, during that time (viz. after the end of Ed,
the thirds raigue untill qu. Maries.] winch men-
tion impositions. The first is 11 R. 2, cap. 9.
No imposition nor charge shall be put upon
woolls, leather, or woollfells, other than the
enstome and subsidie granted to the king this
present parliament; and if any be, the same
shall be repealed and annulled, as it was ano-
ther time ordained by statute, saving alway to
the king his ancient right. If by this saving the
pretended ritght of imposing should be excepted,
as was siid in the Exchequer, the saving should
then he contrary to the body of the act ; and
therefore it must needs have some other inter-
pretation, th:«t it iiv.iv stand with the rest of the
act, and not condemn the law-makers of so
much want of discretion. Therefore doubtlesse
thir> (saving; is no other then an exception of the
ancient, rightfull customer due upon those staple
commodities. And for my part I am of opi-

ing over the statures and records with never so J nion, that the statute was made, not so much to

take away any imposition laid by this king It. 29
as out of a provident and prudent care in the
law-makers, proceeding from the fre«h memory
of the practise of Ed. 3 in this kiude ; for all
those that were of this parliament, did live and
wcie at linns us;c in Ed. 3. time, and could uot
but well remember the gricvousnes of his impo-
sitions. Decide*, I observe, that they desire*
that no imposition be laid by way ot addition to
the .subsidie upon w noils and leather then grant-
ed. It was never heard till of lute, that an im-
position upon any merchandize was charged at
(he same time with a subsidie: und therefore
without question, this was no other then an
aboundrnt provision bv them, wherein they
were no more carefull then any wise man would
be in the like case. Whtn they had of their
own free wills uiven the king a liberal! pit, they
were carefull not to be further charged by him.
The rext statute in these times, where impo-
sitions are found uieutioiic.l, is, 23 H. 6 cap. 18.
By which it nppoares, that English merchants,
brio*: restrained from re pay ring to Gascoigue
and (.Miien, to buy the wines of that country,
they were netcrihelrsse siilTercd to repaire thi-
ther paying eeitaine new impositions, which
were demanded of them. Upon complaint
tutes during that time, in which nunLion is! hereof, it was enacted, that all English mer-
madc of impositions; but they are, as 1 shall I chants might Irerlv passe into those parts, and
prow, impositions of another nature tlun j buy wines there at their pleasure, without any
those are which we eomplainc of; and so make - new imposition or charge to be put upon them;

much heed, cousider the times of opening and
shutting ot the sea by statutes, shall (indc it so
intricate, as bee shall bee verv hardly able di-
recti v to say, that, at the tim« when any of these
impositions w ere granted, the passage was epe n. j

If in my observation I had found any such, 1
should have admitted it for an absolute im-
position, as I have done L'hnrta Mercatoria,
which w us by erant of merchants ; for certainly,
as I hate yccldcd, the grunt of merchants is in
this case of no other etL-ct, then the declaration
only of their assent; and the imposition restcth
meei ly upon tlic kins'* authority. Hut I tinde
none such. Ii any sn'h could bv- produced, you
have heard, how thev have beene from time to
time controlled m parli mu nr.t

And so I passe from E. 3 to the times follow-
ing.— From the end of the reign of E. 3 till the
reign of queen Mary, who was the ltth pi hire
of this realme after Ed. 3 (as Ed. 3 wa«i the lllh
after the conquest) being the space of 170yccre-
or thereabouts, it hath been confessed by all
those that huuc argued in mamfenance of his
majesties n^ht to impose, that there haih not
been found one record that proves any one
imposition to have been laid. There are indeed
in our printed book is some three or foure sta-

nothiug at all to the proofe of his majesties rurht :
or if they were such as ours are, yet are they no
where found mentioned but with disgrace, and
to the end to be taken away; which may be
the reason, that notwithstanding the great use
that mipht have bc-n made of three or foure
presidents of impositions in these times, for the
pinching up of a continuance of the practise,
which otherwise by thi> long discontinuance re-

for that * such impositions were to the damage
' of merchants, and to the hinderauce of all the
' kiiiLs people : if any were demanded by the
' kin*:*! niiicii's, the oliicers so demanding them
4 should forfeit '.20/. besides treble damages, to
' tin- party grieved.'

That thtse impositions were by way of dis-
pensation with a statute, which restrained the
repaire of English merchant* into those parts,

;. i coo.

II l>Y lite lUl-

■

■ ■ 1 1 . 6 there un-
til prim in iiir- |>nr|in>>c, lume

■

ttiy clwrthe reitruint

■ ur.,ii :-.i;-i .1

■
,> litlp to lalve ■

tinn of Imposition* is fuiml 1
■'■. ■ I In inbjeCta
J of this mime i) |l

- by my euch cliiir^e en

Li tended within
of Imp

■ iji. 7. where n

by ■ ny English

-> hfon

[4.

il. V I.HiJi-Ii

■, utu mm

m>( ill llint
■

• Minore^uicffKttbentfiargiM; alhitutu-.

it Ezcltpu

II vll wordi
lor the more Becurilie, nliicli I cullrct by lint
iii.-.l ' Othei ' going Oct l.tfi.ru ii ■

i.- I oonain>

:

■

iiLowing. Beside*, it

■ the statutes and racofdi

Nn imjiri.il urn upon moll ulrjll be laid, bat iu
I wl.ii ii ii appcara, ilut ■cbitrga

l.ini bj IM1 llirlrl'. PI ",;;■,

evident In u statute mule not
above 2l\ mm before tl i i », I menno the s«a»
nir* of 7 II. 7.

I tliorge Of I8f. upon a butt of
mnltusiy, luitl by tluil aci "I |i!irliiimi

' .r: - mill m 1 li:lle -.I..

Lbe won) iiu|iosiiiijn bath been upr ; ■ ■

iJiete several! invention '.

cbarjjiiig of mere In. l id ijij.. Knv, the word

moltull, which il Englished by Hastrll M Evill

Tt.li, H indeed it M->nri*-, :iinl in llor iv-pn I 15

',.,11 r lie iirad Impusi-

. .i:'[iili.-ini'lv for a Charge set by

ti by tlie kings ab»">-

[llle pOWCf llprrll liptir.lt, liuiliei,

■ ■•■■ipcntrt, ii
iip oilier then tile iitt Ol laying on, St I 1
*Dd> therefore in my opinion, iui|.o-iiions »r«

llnnr- |il.l)Hl]\ bj till." lllrl'CllDflt' Cltilcd imj!OSt».

whirli lignilieth the tilings ini(iu;ed. ml I
sliall mil need any further to f oliirck- ':

oaftiiBJ by
. net), that there is 110 record or«

■

1 ilml Imposition;, or

so mtirh as anyone impoeuioo mi I
nil (hat apace of above [TO;

coing llie truth, to tes-
tilie, thai, beitis; one of those tbal

■.,. make -1 .mil in tha nncieiit

1. 1 1 -101 in.- book) of tboma time* noHuoiBe in tire

i'\.-lii tjoer, to Dm be»t en-

ii this house, some of

..in: Il had 1 it.- nt tha rcceapl of cm ■

iv whole

■ine book),
■ -III did Mirvey v>«jb

- ... ■ ; but alter nil our

■ ..-ili I mil linde any one imposi-
'i"ii I. (In- nn n- "1 I. 'i"- .1. till queen Muriel

n-iijnr. tu ba*a bow reeeivad by .mv 1 MtMK)

tad 1! >uu pleisc to pve me

. ■ ■ nbar M jtn (be pi

■ ■ 1 tMinoi bill 1- ii. thai ii'iin

of nil those pritM M -limild I eh as attempt

10 tneltie mh ■■'■ mil • pre-

1 I bj l-'iln . 1, ninl
■-in yon hate beard their .jeeesions, end
■ ■

!■■ .11. ■ in 1 in- kind*, you "ill, I think, eon*

ii,. iv noM

nf nil thOM I '

tinn, ibst nt,'. .. ■. d onto

them, »s to rui»e mnti«y *t their 1

4+7] STATE TRIALS, 4 James I. I GOG— The great Case nf Impositions, [4itf

laying a clmr^u upon merchandizes to he ex-
ported or imported, without assent in parlia-
ment.

Richard the second, lie mi» tiic grand-childe

the kin::; and the parliament home it selfc
was beset with 4000 archers by his appoint-
ment. I will speak no more of him then thi*.
Though he were a kini» of a weak spirit, yet

ami next successor ol "Kiln. ;l, in whoMMimes < did he not spare tn practise upon hi* people

impositions of all sorts did so much rairc, had
little lesse occasion then hi*. predecessor lud.
I'or first, he had little treasure leit him, nod
he was no sooner in his throne, hut. ivwa w\i»
brought tint the French had invaded the

rcahuc. They had burned Rye and 1 he-tan^ ■ :d»all.

L'.e iir.'st grievous things that were ; insomuch
that hv so f»i re discontented them that they
drpo-.cd h in by common consent in parliament,
the out ly desperate example of that kintle
tint our histories doe afford, or I hope ever

in Sussex, they hud t.ik'.n and posseted the
He of Wi^ht, they had l.c>'ici;cfl Wmohclsey.
J'rom the northern parts, the .Scots hud burnt d
iiovhurouzh, and were rtvalv to ovcmir.ne ail

His successor Henry the fourth, in respect
he held the cmwn by so weak a title, had
cau-f to uive the people till the content he
could possible. And vet he was so oppressed

the north parts of P.n»hind. licing tint* bc.»rt ; with wanes on all sidi*, fioin Trance and
with warre on all sid<->, d'lth his cmmsc-ll, • Scotland, but especially by cnntiniiall and duii-
which in all likclvhood had mo>t. of them been i nerous invasions made hv (he Welsh, ns with-
ofcounst'M to hi» urandfaihcr, mJvi>c luin to j out the aide of his people tor the supply of his
raise money b;. imposition.-,, a- his urandftllu i- i Unsure, i» had not been possible lor him to
had done (lor this course of iai-iu&; money b\ . have held his crown on his head. And there-
way of impositions, wa* yi \\vA\ in all tht ir ! fore he pres.ed his people so fa rre, that in a,
memories) ? They do n..t, but he tal.eth the ; parliament held the olh yeere of I lis reigne,

thev veelded to him so treat and so una reus-
toaied a tax, as that the grantors thereof, as
our chroniclers say, tooke t-pecinll order, that
no memory thereof should reinainc of record
onelv to avoiile the president ; and vet the
verv next vterc following, his wants were
a^aine grown so treat, as his subjects, behi£
awinhlcd in parliament to <;ive him further
ayde, did rcsobo, thai there was no other way
to supply his want, then to take from the
cirrgie their tcmoondl lands and ^oods, and M
s»ivc them all to the king; which being with-
stood by the diTirie, a resumption of all the
gifts of Edw. ft, and JJich. ',?, was propounded.
At Inst, after ll.ev had sate n whole yeere, they
pave him two fifteenths. At thi* time, nn*t of
hi* i'ouiise.1 and the meat odicers of th«» kii'i:-
d>i:ii!* weie spiii'uall men. Had they not now,

ordinary coui^c, by calling a parliament, which
for maiiiteiii'ince of 1ns churua in the war, the
2nd yeere of his rci^u, i/r.mlcth him a 15t.li.
He Ctdleth another parhatui ;it, and hath ano-
ther loth granted, th" ith were of his ivigne.
Th«* warren increasing, hi-, necessities were
«uch, and so conceived hv th'- parliament, as
thev granted him a most iiniwi ill i.i\c ihfti:i«u-
out the wh »!c kiuidmic, upou every trclesius-
ticali pomui, one and other, (is. «W. upon
everv other man or wo. ran w.ihin the le.dm.
4i/. which when it came to Le h.vitd, caused
(though cau*>e!cslv, hc< a«i-e it w.i« h lmIIv uranl-
cd) that n<»toiiou» ivbcihon, of which Wat
Tyler was th" captaiiic. This taxe, as it was
levied not wi.hoat That ureal rebellion, so
oilc.-tionlcs.-e \v;-.s it unuillmL'k vi.-c hied to in
pai'humeut : aufi yet btctu^" tofn- was no

other course thought lawi'uil tor the imImm^ of ilever, a jum occasion <:i\eu them to li;ue put

tieasme upon the subjects i;ood«, t!:c!i 1-v their | ih" kniu i«» nitiiile oj" his j!ren»2:»iti\e of lavm-j»

own assent in pa'lijmeut, onely that ionic I i.iy ■-iiitint. not out ly to the inient to lia\ir

was lhoi>_.lit ih to Ik* practin 1, uiweii w:u» ' .o1. .. .-d him from the harkuinj; to that di.-pe-

siich a*, ou^ht to be obeyed.- -lYo'u ih.« ."» f I » to | ute mmi'in. that had been inadc »Lr:ii:i-t th^m

i he K»fh j, cere, of 1st. n-i^ne, Ik- oiit .0:1 .1 . »i : •. I 10 :.ll ilair niter undonu^ ; hut were thev not

other \eerc one ;..■!«■ or oilu-r jii i.:o!i u;.t ,.; ; ; u'.'i «»■ ;.nd in dutv ami conscience, in thi»

soiiietuue% a ta\i , >■-. .« tiuu-j ;i l.'itn, s.tni. tnni > ' i. «.•■ «»f *»■> ::re:*t ueeeWir, M'emi: the pariin-

.1 auhMdie of toniw.L'e and pi>imd:ije. In tl.t* ' m: ni km v<- 1 or otherw^e how to snpplie tit1

IJJih y.erc, he \\.»«< i ifueeil to yo in per-un ii - 1 Loi;-. w^a'4, to have ndtised him to lnvi

to lich'iid, to seM!.« I':e state 01* that it.imiry, ! math* •»*■• or" lu^ law full rinlit of impoMu^ ; by

then hi iiSuliion. All tin ie troubles he |t.i«! - wliu Ii m.'ar». he minht, w-nhout troublnij: the

fr»i»: ab.o:ule, be«itlcs llmse lammis r. In iiiu.i-. . p;'.rli:.iiieur. ipiickly h»ve raided great Simmies

heie ;.L iii i.-e, whu'h siflirw.>rd<« ca-t bun out ol inoi.f \ ? ( i.*.t.r.nlv it was not, bccau>e thev

wi ij e/iiLram of any such practise m foimcr

in

ofh:>>e..l; yi t. cJi-i he 1. ever fur all thii

l> :n; t t-i la\ iuip-^Hi-.n*, tlioi'.^h he v.mtiil ' nun-*: fur none of them that were then of (he
iul abool h.m tu ;i.t inm in mi.'de of his ah- j < i.iiiim li to ilenrv the Ith, but tltiv li\e.l in
ilulepoAir I'i-i l'.dw:i;d MratVord. bishop) l'.d»' . :i".-« tin: • ; and most of them, dopbtlt-sse.

of l;.\et»i, l«>r<l t •!.«:!• elh r o:" Kiiglanil, in a
Viiiiiiji made t<i tin- ;>:.ili .i"viit held anno J1.
a" iier k i.>-./Hi»-.v ■■» 11 • 1 :, •.. t j iinho"t.'iV in 1:1,-
Uim that l! 1' !.:■ r v^.i" : ,.\. I.:.iiud bv any l.;\\.
Lilt w i-» ol 1'iMifir' :■. i * ihii«- and abote .a\*.
an I th-it In <i>i,i.- K- any 01 lu<« actions wa< \.-\
oifeiice v.u.t!.\ >»t i-v.:ti»; :.t which parli-'»
ail that wtrc pre»tnt c:in;e urmed, 'or !• .1

1 . 1

wnci'i l'.d. :>\ lime mrnofa>:e and Oim-m tinn.
lint i>i :i I >ii(.;\hriod a< T l.t \ kne\> !<v.t Tdw.
the ;iid ihd lav ••.lipesitio!.-. so liki wi»e thfV
knew, 'li.tt Mni<o»ition<t had been li'om lime to
1 'me, m iiit--r d.ofo, condemned as unlaw full,
o.d v.iTi' Ijm inu- hateftill to the people; and
o.'ii-. for ip.-t reason thev did forbearc to ad-
1 <-• i!;e u.,- *.o lake that course, though tie

4+9] STATE TRIALS, 4 James I. 160C— on an Information in the Exchequer. [450

nece*sitic were never so crent. — Another pre-
rogative, as much coium ruing the interest of the
hubjecc as iliii of impositions, namely the abus-
ing of coy no, this king made no scruple at all to
put in practise, because he held it to be law-full.
His sunue, ami next successor, lien. 5. who,
bv his inunv victories o\cr the French, and his
li'.bitf dispostion and hehuvionr towards his
people, was so lanv beloved of them, as never
was kins of this reahi e more, though the king-
dome were no%v, by one decree of discenr,
more firmly set led upon him then it was on his
father, who usurped it; though also his e\ pence
of treasure, by reason of that great warre in
France, were us much, as any king's of Eng-
land ever were; though he had troubles also
from his neighbours the Scots, and within his
owne realm e by rebellions; und'lastly, though
he spared not, for supplic of treasure, la sup-
press above 100 priories of aliens ; yet nei-
ther out uf the strength of his love with the
peoule, nor in his extrcame necessity, by reason
cf these honourable warres in France, for the
maintenance of which the people would wil-
lingly have undergone any burden which he
would have laid upon l hem, especially after the
victory at Agencourt, did he ever so much as
attempt the laying of impositions.

His successor Hen. 6. though indeed of a
meek spirit, yet he was so followed with trou-
bles within the reahue, and from abroad, that
lie was in forced to crave such an extraordinary
aide of his subjects in parli.inieut, as the levy-
ing thereof was the cause of that famous rebel-
lion of Jack Cade in his time. Besides, in the
13th yeere of his rcignc, for the ease of his charge
Mid supply of his wants, all grants by him
niade, of any hinds, rents, annuities, or fees
whatsoever, since the fust day of Ins reigne,
were resumed : and thi* is never yeeldcd to,
bar in case* of extrcamc necessity. As for
impositions, notwithstanding his great want*, he
thought not of them.

KuV. 4. that succeeded him, was no lesse
free from troubles; for he was, as you know,
driven to forsake his kingdome, and to live for
a wfi.lo like a bani-hed man with the duke of
fliupindy. He was also inforced in the 5ih
yeere of his reigne to make a resumption ; and
the same yeere to afoiM.* his coyuc. And Co-
lonies observeth of him, that he obtained a
inbsidie of his subjects in parliament, upon
condition that he should himselfc in person
undertake the war in France ; and that only
to get the subsidie, he passed the seas into
lniwe, but presently returned without doing
anj thing. What should such shifts as thr-Mi
hue needed, if he mk'ht, without being be-
k'lUtitvz to his subject's l-tuh.llvar.fi without
foutr <il have raised treasure by laying of im-
p«isitioiiH ? It is well worth the remembering,
tint which the same Comiues, speaking in com-
mendation of the frame of this romiuonwc:iirh,
with, * that this state is happv, in tint the
' people cannot he compelled Ly th* king to
' .'lutein any publiqiie charge, except it he hv
1 their own consent in parliament/
vol. :i.

I proceed from Ed. 4. to Hen. 7. omitting
Ed. .*>. and Ric. 3. becau.-e of the shortness of
their rcignes. IJcn. 7. had indeed a more
peaceable time than any of his predecessors ;
and yet he was not altogether free from trou-
bles, both within ihe reahue and from abroad*.
But his natural! inclination was rather to em-
brace peace. He was so prowdcut and poli-
tique in the gathering and storing up of treasure,
as never any prince of this reahne was therein
to be compared to him. He did hiinselfe take
the accounts of his revenues, which I have seen
under his own hand. He had for his assistants
about him Empson and Dudley, men learned
in the lawes, and by all probability very cun-
ning in all the profitable points of die preroga-
tive ; men that intended or studied little else
than the advancing of their masters profit ;
men r\en till tl.is day infamous tor their wicked
counsell, in persuading that good king to lay
such heavy exactions- and burdens upon his

{>eople as he did. If these men, who in all
ikelihood should Irivc best knowne tl o kinj:-*
rielit, especially in so high a point of profit, had
but had the least notice of so profitable a pre-
rogative as this, would they not have been at
strife which oft hem should first have put the king
in mindc thereof? Or if they had held it ques-
tionable, would they not have put it to some
triall ? Certainly there can be no cause ima-
gined, that thould make them thus to forbenrc,
but either they were utterly ignoiant of any
such prerogative; or, that knowing such a
thing to be claimed by some of the ancient
kings, especially by F.d. 3, they knew likewise,
that it was in the same times continually com-
plained of in parliament, find al waves con-
demned; and that there were acts of parlia-
ment directly ngmnst it. And this is more pio-
bahly to bee concci\i-«l of them, being men of
such searching spirit.-, and so will studied in
point of prerogative, then that they were igno-
rant of the practice of Ed. 0. considering also
that thev were neeror to those times by ICO
y ceres then wee are.

But that which most of all moves me herein is,
that there was in II. 7's time such an occasion
offered of making use of this prerogative, as
there could not possibly happen any other that
might better have justified the lading of impo-
sitions, which w as thi*. The Vein ti.ms, to the
intent to diive our merchants from fetching
tweet wines at Candy, tint they might the bel-
ter imploy tlieir owne ships and men l-.i-nt*, did
impose upon every butt of mahnesi y brought
thence by Eu<jli«h merchants* foure duecaN ;
by which meai<*> the Fuji-di wholly lost that
trade, and the Venetians made the whole profit
thereof. Tbi> mi-chicfe was no other way bet-
tt r to be remedied, than by imposing the like,
or a grc.iti r eh-irtje, upon men i.anls \A' Candy
hringiii" nialuic&ev into F.ii'jhuu! ; that so

% II. 7. had a r-uhsidy of iimney smkI pound-
age granted to bim for his life, :i* may appear
by the Purl. IIol!, 1 II. 7, wh»h aj pt an > no
where in our printed bcoks.

2 G

451] STATE TRIALS, -1Jav.es I. 1G0G.— The great Case of Imposition*, [15*

they of Candy not being aide to afford I hem ( the people were in point to rebcll, had not the
better cheape than the Enghsi:, t lie English \ kins stayed the proceedings of the ccmmi»-
inight siill fitch them from Candy, asthev had ; sioners hv his letters. Finding that this wny
wont to due. I say, there could not possibly . would not serve his turne, hee demanded u
be a more -justiciable occasion of hiving imposi- , benevolence ; which not answering hi*, expecta-
tions, than this whs. .And did tins king, so ! lion, he did the suuieyeerc raise unto hiuiselfe
care lull in other tilings of pn s< rving his prero- r a great deale of treasure by abusing his gold.
gniive, and most of all in matters that coucern- [ Such tilings ns these, princes never put in
ed his profit, take hold of this occasion to lay j practice, but when all other meanes faile them;
an imposition by hi* absolute pone;-? -"Say ra- | and yet hee went many decrees beyond this,
ihrr, though he saw it convenient, and in aj L« 'or, in t hearth ycere of his reigne he suppressed
manner nere&?iiry, yet he conceived it to be ! above o 70 religious houses, the yeerly value of
unlawful! so to do; and therein; e did it not by whoso revenues 1 have read to be no iesse than

his absolute power, but by assent of parliament,
as may appcare by the statute of 7. lieu. 7.

3y,00J/. per annum in those days: and that of
their goods, sold at very low prises, he made

cap. 7. printed; where in the preamble of the j above 11)0,000/. in present money . About 4
act, you sliall sue the occasion of the making ycarcs after he dissolved all the monasteries,
of the act to be as 1 luve opened it unto yuu : j abbeies, priories, nunneries, and all other reli-
ant! you may perceive by the body of the ad, iiious houses of what kinde soever throughout
that for the comiterpoyaing of the imposition Kngland. By which meanes, and by the sale
of four duccats laid by the Venetian- upon our j of their goods, he gathered such a masse of

treasure, as it might have been imagined that

merchants, there was imposed KJ*. for a butt
of mahuesey, upon their merchants bringing it
hither, to last as long as the imposition of foure
duccats, which, as up pea re* by the act, came
hut to 185. of our money, should endure. It
is not probable, that this king, considering his
other actions, would have suffered this to have
been done by parliament, if he had thought he
might have lawfully done it by bis absolute
power; and therefore it cannot almost be guine-
said, that in these times this pretended prero-
gative of laying impositions- without absent of
parliament was held to be against law.

lien. 8. his sonue and successor, was so farrc
from the disposition of liis lather, in this point
of thrift and providence, as thuc was not in
the whole r:ud:e of our kinirs any one like In
him, lor e\ccssi\e prodigality.* The great
richc- stored up by his father with *o much
care, and left unto him, hee so s'tdainSy con-
sumed in triumphs, maskes, muiiimcrio, ban-
quets, pompous and braving warres, as w:i» that
of Turwin and Tunu'v, and in the si:i%r\iu" of
his lust, :t< he w:-s out of very necessity en-
forced to » rave irn.^t :.;ircasrmab!c aids of hi;-
subjects in pailia i; 't-nt. ,-urh a*« never before
had been f: "anted, v.hicii thresh very ihead
and tin re wo.e yteldi d ! j li::-!. Yet iicl so
satisfied, that i'o meaiic-i for ii:.'ruYsiu:_of»aoi:ev
might bee ne:;-«.cte I or liii-i:: r-n; ted, mthe laih
yecrc of his U'iguc, by the ■: oimccII oft!;:-:', pivud
prelate cardiiull \\./ol^y, l.c sp'ircd not to
tend out comm;s>i.uis into eve y sJsiri- tl:i(itiL:!s-
out the whole ivai,..e, wi:h prAy iiistnu ;i >n: to
the commi'.oi-m. i.-, how they sii mid v. i;U uu.st

advantage be la*. ' themselves, :n p'-rs'.va img

the people to < >;:ti.h'ite to the kim 1 1 it; sixth

part of iheir ^ hole estates, to bee paid pre-

ftcutly, either in money or plate; whereupon j dm in:* hi- liil*, whieh ended the next ycere.

followed extreme cmv.ng. weepiui; and < v.I:- ' Can any man imagine, that during this king*

never any king of tins reulmc should have need-
ed to h.wc sought reliefe at his subjects hands.
Yet he hiruselfe, no longer than within 3 yeeres
after following, craved and obteined, as may
appcare by the statutes of that time, uu exces-
si\e great oyde by parliament; and yet the
yeere following hee did also abase his coyne
more than halfe in halfe, such an abasement
as never before or since was heard of, and
could not but bee very grievous to the people;
but because perhaps they held it lawfull so to
doc, 1 1 icy made no publique complaint thereof.
And it is worth the observing, that though this
prerogative of abasing coyne be a thing which
trenchetb as deepely into the private interest of
the subject as the laying of impositions ; for by
this meanes a man, that tut* day is worth in
revenues a hundred pounds per ami. shall to*
nmii'.r.'., if the king be so pleased, be worth
but lil": \ or forty, or lesse, in read value; and
though :i|«o the practise of this prerogative hath
not l> tea for'ioin bv any ot' the kings of this
reahne, and that some of them have used it
vu v immoderately; vet cannot there be found
any one pu! -liipie complaint, that ever I have
met \ti:nall, upon record against it, as from
tunc to imiii there have beeue many against
impositions; which u;gues that the subject did
muLc a diiieicnce be: v. ten these two preroga-
tive^ ; this, of laving impositions ; and that, of
abasing coyne; 'haiking the one lawfull and
the other nor. !>ut to conclude my observu-
lions i:j.« ii the actions of lien. !». The next
yeere alter thi.^ un;;oii.cior.ab:e abasement of
his m.iuev, be craved a benevolence. The

yeire toihiwii;^ hi' tooke the profits o[' all the
chantries, culled^es and free chappeis, ike.

imitinn J»«:aiiist the l.iu-i ami hit coa.icd!, and

"" Hen. 8. had a siib-idie «.f tuouane and
poundage granted to h:m i-jr las lilt. , liie (irst
yeare of ins rri^n, as appvares bv the l'.irl.
llulJ.

rt i^n'j r was held lawful!, or any s>ch thing so
much u> dreamed o,, to ruvsj treasure by lay-
ing impositions? 1 will enforce it no farther,
but le.ivc it to the judgmei.t of any reasonable
man, that shall consider I (-.esc things which I
h.ive rem em bred, whether or no it bee likely.

.i 1. lflW

■

. !!.■, I.l IMII-.' "I I 111' -llill I-

led ilmr nnj «ueh piin,»i-
■ ;. should n»l i

■

■
ill within the rcnlmc, fur 3

■

- dllrifli; v.lir.-h tunc
i. lli:it ITii^hl

n i ■ i- mure than

..: proiligiility nl'i ■ ■ ■fthc.-c Line!

■»(i5fymgn(ihf irpli -i: ■

■ ■
ontiotM, not the nonage of others

ill COUII-' '

i which some of

r the

iiliii.irY al'ii-iliuii, whii h
led some other?, not '
■ i u»ur|iers, iior any other
IT, "hiKh happened d I

li in . il (J. Mary

* litem out of iHc graTe, after
■nn.i inaiiv vtcci » dead

■ ■'■, "ilmi sheUyd, was thnt
■ ■ nil this day, which prem
■ .|!|>riirr b) 1 1 io
nits lit' Jut t ii

"ln-ii'iii" yon ibmU Gad* *
mteuied by

I 1,1 I'.M (0 the CU»|lPI[|CS

null ninth, Bj "lii. Ii ii

■ elded in cui-

-pence, and i" n!' idle
.:.' the i u -
id mn tourti '

>,l did ciiiniiioiily make
in:l •■ Of ivliirh wns

uh was Itjisp, then tin-
of n much wool ool

, loathe* iliuiv-

equiility by IWting Upon
t.il.ini:- After lliijili.il.icii-
■ . .it" ilic rale
., h equality, follow these
senrecoii-iil.
it l.y Bt hi i lie sum.-, I.v

i reused, it in
il"- advice ni'

curried mil by
■
■
Dint inch mil us wight

■

■

. I in- Inline

■

■
how it ilirlotriii from ai

inwndi th ihn
snio ii- r, km
■ a afimpott,
■ ■i i ] bee iu»e il i owieth

;

■

....
■

tfcaj nic eitlii .

p, Hindu*.'. ,[' l|u J !,,■ : . ,1 ■
.,,..1.1 . I . I::,;: -:.,,.

power. — The -nunc , , '(..-.

Jam to li'inc but bo «i

i ,1,1- 1 in.. i upon iliis ocoinna, to i

I'Iiib iui|i.i5iiiini, ili.m..li grounded upon such

; kn 1- I;. ml. jet J J 1

I". Iii.">. :.. I l>. ii '■■■, •, -■.- -■ J ■ ;.■<'. uea l>> my lord

Dyer, comjilayned of by tin- imr. in ■

don ■ niih »n. ■<■ Jus

. . ■.: [.. l'.i- - : ■ I . ill HI be illi|.|llili!;..-.l

i.l' ii. I). ,:.ii-i ii *rii i. "i mnttd in pat-Krai lit,

Inn. taMSMd bj qua ii Aim v of hi I

pawn ■ ntii >■■ upon th re were di en mw

lilic. mill cnnlr u im-. p. I'll- 1- jii- 1 n ■ -

I !n ir f< l- Jin ii m ii in > ulii-i a in be i. ■■ hi.h,

hi lean, by u». b is \< -.-. [ihpIihIJ-.-, u..-i, , iky
men I for llu ■ ii.il h. it "uuld nut
■■.,:.-. - ■ : ll

■ ■ from ihc-

Browne, end therefore it continue) tit)

H. ■ ill llU II ll-'. P ijllll V ill ill!* I IVIll'*

tbil IIIIJ...-I1 il[..iri Hum linn N ■

-I I lllllH 'illH' llll'll, ILPPlI .11 I"

. . . I !■.:■ InV

|j.in 1 In. LI it not w, irhai 1 conu

i ii 1 1 v 1.1 :', uji'iii

I | ! . .'. !-..(■. I, Hid ■-', Il !■■:! .

enacted, thtu no wool thould be en . ■ .

England, but hy the Ln- ■■

u.i in mi should wriii-e tlnili, p.lliti- limn aiuli n>

iliiiulil Ipl- uiiiik- iii l-lu;.' l.i ml. Tide l.i" tugkfl

•ucb effect, n*, within ti I

part of the wool in Eugknd «n ma i ibtu

cloth : and it beeuee to betraceperttd in such

uhuniliiiice, by rtiiiuii tlujt thtii- tri

tome at nil due u[>nii doth, and the

lumc niul suUidit- u|>"ii ■■ "J- «i ■ H'M I. \ \l,

ihiil in the '21-t Veen-, tli- kin;:. -

cnttefM of Mimli mi tmn Ii iJi.ciitim.-iI, i Jut h

pecke to remedy it, noi
thnrup iijhui iloiii hy i

■
l<. r. Iu full pari '. i ■ ■

■

ion fully bj a a citnU in ■ reeord auoaigit ui

459] STATE TRIALS, + James I. imC—Thc great Case of Impositions, [WO

' maletolt is quas facie t rex.* As touching tlic • touts, the very word then anciently used in
word Toll, which they say is to he understood I Engl, for impos.il ions, as may plentifully appeare
of tolls for passages and for buying and selling > by the statutes and records of II. 3, Ed. 1, Ed

in faircs and markets, it behoves me to say
something; uf the derivation thereof; the ra-
ther, because it is very often used in our
ancient statutes and record:* in the same sense
as it is in this place; and by the derivation
thereof the naturall and true meaning of the
word shall be best understood. I hold it there-
fore to be derived from the Latine word Ttolo-
niuvt, which signifies ctiatonie, by cutting oil"
the latter part or' the word, and retaining onely
the firj>t part teal, by contraction toll; of
which manner of derivation there are infinite
examples in our language. The I /nine Teolo-
nium, us saith Calvin in his Lexicon J u rut Civil is,
is derived from the Greek Tix«, which signifies
us well custom an it dot I) Jinis. Hence it is,
that the customers aw called in Latine Tela-
narii.

Th'.i.v yon sec, that the genuine and primitive
signitir at ion of our word Toll is no other tlr.m
4'iKuune upon merchandizes. From the word
Toll, arc come tho.se two barbarous Latine
woiri-j f jut id in our statutes and record*.;
toUwiy which i« the word u<ed in the record of
1(3 H. 3. but even now vouched by me ; and
tol.atum* the original! uord in the statute now

2, cV Ed. 3; tor the word Imposition was not
used in any French record, statute, or other,
for ought Thnve seene, till Kd. 3. I find it once
used in Latine, 12 Kd. 3, in the letter which
king Edward the third writ to the archbishop,
to excuse him to the people for laying impo-
sitions ; and as ail that letter throughout is of
an eloquent stile, so as it seeineth he was cure-
full to avoid also that barbarous word, malum
tolnctuui, though common and familiar, and in-
stead thereof to use the pure Latine wonivnpo-
sitio. Sylvius, writing upon Tullies oration for
Marcus Eonteius, w here these words are used by
Tuliv, ' imposuit vectigal,' saith, ' Ita usitntum
' vulgo est ut Yecticalia nova uppellent impo-
1 sitioiies.' Tiie word vt'ctigul, in this place,
though in a generall sence it may be applyed to
any revencw whatsoever, vet, with the civill
lawyers, it is by way of excellence commonly
used for custom, as may appear hy Calvin in
his Lexicon. 4 Yectigal, quod fisco vc-1 reipubl.

* portorii nomine penuitur, id e>t, pro inercihus,

* qua; iiivehuntur \el evehuntur. Sometimes
they use to joy no with it, for a more cleere dis-
tinction, the word iwrloiium ; as a man would
say, the revenue ot the ports; agreeable with

in question, which 1 must confes>o is also in i which, upon some records of Henry the third's
our law Latine uf-ed by es for Toll in the market ; time, I have found it to be called cxitus por-
and Toli for passage, as may appear by the , tnuut. By this it is evident, that iuipotitio in
register and the hook of entries. But in* this ; pure Latine, and imposition in English, is the
place, malum tolnrtum properly signifies, not ] same with mulctolt in French and malum tolnc-
a toll in the common sense, but an unlawfull ; turn in our law Latine; and they doe all signitie
charge laid hy the kinir upon merchandizes, as ' a new increase of custome, and not any thing
an increase of customs, according to the pri- d>c. Wherefore 1 conclude, that these word*,
initivc >i:rnific:ttioii ; which is evidently proved. ' sine malis tolnetis,' in our present statute, are
in th.it it i> here opposed to old and rightful! natvirally and properly to be expounded, and
custome*, ' sine omnibus malis tolnetis per certai understood of Impositions, and so ouuht to
' et unTiquascoiisuctiidincs.' Whereforeit oiitiht have been traii-lated, and not as they are. And
so to have been translated, for so it signifies, i although the word Imposition itself, as also the
€ without impositions, by the old and rightful! ! word tiu:lc:'nitt, and malum tvlnetum, may l>e, as
ie.* This exposition and translation is ' I have confined, taken as well for a new

increase of cuttome by a lawful I means, \'\7. by
assent in parliament, as for au increase of
curfimie by the king" absolute power, which is
unlawfull ; vet bv the word* that immediately
follow it i- evident, that this statute dotb
onciv intend unlawfull impositions, that is,
imposition:* laid by the kiwi's absolute power,
without assent in parliament. Otherwise
would thrv not have been opposed to due and
ritihtfnU ci Glomes, as bv the words of the sta-

4 cu>toiue.

further warranted by the use of the word male-
tolt, so often found in our ancient Salutes and
record*, which without scruple is derived from
the Latine, malum tul/ietuin^ the very word of
our statute. I find it divcrsly written, lvaUtont,
mnh'toll* malctof, and sometimes waUtint;
but I ii:.ver find it any where used in any oilier
sence then for an imposition byway of increase
of enstome upon merchandizes. Nunetime- in-
deed, but tnat very rarely, it is taken in the
be-t sence, for law full and rightfull cast mie, :<s ■ tul«' ihov ate.

the word imposition sometimes is; but then j Hut I* enure there hath been some excep-
ci.mmoniy it is accompanied with another word lion nlvi tuktu to the exposition of the word
in free it from the worst sence. us dmiturcl I Cus'.oaic in that sense in which I lake it,
malt tout. At. That nmtii tolnttis in this place | that is, f.»r Cu-t.um* upon merchandize, for
otisht to be translated Impositions, may be far- j that the word in liu original! is consuttuih,
ther proved b\ that which f find in » writer of i%hnh sanities au n-u^c, and not custuma.

provi

the French h'story, one Jean Serres, who saies,
that in the time of Philip le Beau, Lime of
France, which was about the time nf Kd. 3,
king of England, there w— ~SaUion* in Franr*
because of impor -hirh

m thote day* fc

which in the Latino word we now use for Cus-
liiiue ii|H)ii inert hand i/o; it behoics me there-
fore to say M>im*thini: touching these words,
COHtuctmth and cut tuna, for the cleeriue of this
•rruple. This word ci>isuctw'o% in his first and
proptr ligtuitciition, doth, 1 confevte, signific

461] STATE TRIALS, 4- James I. 1 600.— on an Information in the Exchequer. [402

an usage, or practise of a thing time out of
uiiode. But it is evident by the records in the
time of li. 3, and Ed. 1, this word in a more
speciall manner was applied to all, or most of
the duties belonging to the crowne by reason or'
trade ; us * consuetudo aqua: Thauiesis,' ' con-
' auetudo piscis venicntis ad vicuin pontis Lon-
don' ' consuetudo quie vacatur scavegium, con-
suetudo qua: vocatur gauge/ But yet more
specially it was apply cd to that dutie, which
we, following the same rule, because of the
greatnesse of the revenue, doe likewise per ex-
cellent iam call Custom. This may uppearc by
the pipe roll of 52 Hen. 3, with this title Con-
suet udo Mercundizoruui, and by divers other re-
cords ofllen.S's times. The rolls and records of
the beginning of Ed. 1, doe likewise prove the
same very evidently, insomuch that not onely
that which in this kinde belongs to the king by
the common-law and by ancient prescription,
was called consuetude ; but in later time, if uny
increase were of that dutie, though it came not
by prescription, but by grant in parliament, or
otherwise, yet it still retained the name consue-
tudo, which by continuance of time came to be
die proper name to that kinde of dulie how so-
ever it began. And therefore in 3 Ed. 1. you
shall finde, that after the old custome of woolls
was increased to a demy-markc by act of par-
liament, yet the word consuetudo was never-
tlieiesse still retained, but with an addition;
for it was then called nova consuetudo. Nay,
though the increase were by the kings absolute
autboritie, and upon the matter a mecre imposi-
tion, yet the king in his commission did alwayes
call it consuetudo; as in 16 Ed. 1. the imposi-
tion of foure shillings upon a tun of wine is, in
tlie kings commission to collect it, culled con-
sttcludo. Ncverthelesse, I assure myself, the
people called it by some worse name, as malc-
toft, or the like.

The s veral applications of this wurd consue-
tudo to all dutus whatsoever belonging to the
crowne by reason of trade, is the reason, as I
conceive, that the word is used in the piurail
number in the statute of Magna Charta, * per
* antiquas et certas ennsuetudines;* that so they
might bee secure against all unjust exactions
upon merchandizes whatsoever. But, as I
have said, the piincipall scope was to pm\ide
against imposition*; and by reason aUo that
tlie word consutludo was taken as well for im-
positions as for righiibll customes, therefore,
to make all sure, they insert the words * antiquas
' et rectas/ Tins word consuetudo in this sense
continued till about tlie twentieth yeere of Ed.
1. after winch time I cannot call to ininde that
1 have scene it upon any record. In stead
and place thereof came in the word custuma,
which 1 hud first in Charta Mercatnria an. 3 1
Ed. 1. where tlie increase of custoine by the
grant of men: hunt- strangers is called parvo cus-
tuma ; and that which before was called nova
cons utt udo, doth now begin to lose that name,
and to bee called magna custuma ; which termes
of magna custuma, intending thereby that in-
crease made hy parliament, runo 3 Ed. 1. upon

tlie tliree staple commodities, wools, wuollfells,
and leather; and parva custuma, intending
thereby the increase granted by tlie merchants-
strangers, an. 31 Ed. 1. are the termes used
at thi» day by the customers, and by which
they distinguish their entries This word cus-
tuma, I tinde to have been also promiscuously
u>ed by E. 1, E. 2, and E. 3, in their commis-
sion*, and applied, as well to increase of cus-
toine by way of imposition or by acts of parlia-
ment of those times, as to ancient custome
upon the staple commodies. But regulaily
none ought to be called cuttuma, hut that which
is due upon the staple commodities; and so is
it u*ed at this day, except only cloth : for if it
bee laid by act of parliament, it is called a
Subsidie ; if without assent of parliament, Im-
post. You see in what sense the words malum
tolnetum and the word consuetudo have been
used in former times, and are thereby able to
judge how they ought to be understood in this

t>resent statute, which, as I have said, ought to
lave the most beuign interpretation that tlie
words may beare.

But it hath heene likewise objected, that in
this statute there is a spcciall clause of excep-
tion, which lcaveth the king at his liberty to lay
what impositions he pleaseth, this statute not-
withstanding. And that is the words in the
begiuning of the statute, ' All merchants, if
' they were not openly prohibited before, shall
' have their passage, &c.' which implies, say
they, that if they be prohibited, which rests
wholly in the kiiigs power, then they arc not to
have benefit of tlus statute, touching tlie freedoms
from impositions; and they say farther, that the
very laying of impositions doth imply a restraint
tub modo. Though I purpose to speake more
fully in answere of this objection, when I come
to shew you the weaknes.^e of the reasons al-
ledged for impositions, yet I cannot forbeare
iu tliis place to speake a worde or two in an-
swere thereof, ha\ing the statute now be lure
us. 4 Except they be prohibited, they shall
4 have free passage (saith the stntute) ' without
' paying evill-toll.' This doth imply, say they,
that if they be prohibited, they may be com-
pelled to pay impositions. But that cannot he
necessarily concluded. It implk* indeed some-
what strongly, that they may bee prohibited.
The statute of 1 It. 2. cap. 12. inhibitcth the
warden of the Fleet e to deliver any prisoner
out of execution, unles^e it bee by writ or other
commandment of tlie king. It may he as
strongly implied out of this statute, that the
king may, by his commandment without writ,
deliver a prisoner out of execution : hut the
contrary hath alwaies been held, [l cc 5 P.&
M. fo. 10% b. Dyer.] The same objection is
made, and the same answere may be given to
another exception in the latter end of this
branch, except in the time of war.

I come to the Second Statute against Impo-
sition*, which is the statute de tal/agin no.i crn*
cedendo, touching the time of the linking of
which there is creut variety of opinion; for it is
not, for ought i could ever learne, found any

463] STATE TRIALS, * James I. 1G0&— The great Case qf Impositions, [40+

where upon record. Justice llastall accounts it
to have been made 51 of II. 3, and with him
ngrees an old manuscript which I have seen.
It may well bee ; for in one of the statutes you
shall tinde a pardon to llumfrey earle of Boham
earlc of II tn ford and Essex constable of Eng-
land, and to ivoger ttygott earle of Norfolkc and
Suffolk marshal of England, who both lived in
that time. Thomas of Walsingham in his his-
tory of England saith it was made in the 25th
yeere of Ed. 1. Hec recitcth die statute de
vcrho in verbum as it is in our printed bookes ;
otherwise I should have thought he had meant
another statute against impositions made in-
deede 'i5 Ed. 1, and found upon the records of
that yeere. In our pi in ted statutes at large, it
is placed last of all the statutes of E. 1. Though
there be some disagreement about the time of
the making of this statute, yet they all agree the
occasion to be the laying of a great imposition
upon wool. The words of Thomas Walsing-
ham ; ' Auxit rex tributum laux ad 40$. cum
* prius ultra diiuidiam mercani non daretur.
fota autem communitas sent it se gravatara
de vectigali ; lana enim Anglia? fere extendit
ad medietateni valoris terra* et tectigal ad
qui: it am partem terras.' The custome of wools,
as you perceive, was in those dayes esteemed to
bee the Aft part of the value of the whole land.
It follovveth in him, that upon complaint the
subject at last obteined the statute I nowe
speake of, the words of which are, ' N o tallage or
4 ayde shall bee raysed or set by us or our heires
' in our realm, without the assent and good- will
' of archbishops, earles, barons, knights, bur-
' gesses, and other freemen of the land.' After
these genera !1 words, by way of provision against
all manner of burthens whatsoever to bee laid
in t'nie to come without a -vent of parliament,
followed) in the next branch, sa^c one, especial)
provision for the taking away of the imposition
then in demand upon wools; which latter clause,

of the making of the statute, doth in my opinion
strongly enforce this statute against impositions.
And 'tis to bee observed, that in this statute
there is no saving or exception of the kings an-
tient right, which, as our chronicles say, was a
point principally insisted upon at the making of
this law, earnestly pressed by the subject to
bee without that clause, and fur a long while
stood upon by the king, hut at last yeelded unto
in such soit as you have heard.

The next statute (third) against Impositions is
25 E. 1, c. 7. The words are, * Forasmuch as the
4 more part of the cominality hath found thein-
' selves sore agrieved with the maletolt of wools,
4 viz. a toll of 40s. for every sack of wool, and
( have made petition to bee released of the
' same, wee at their requests have clecrely re-
' leased it, and have granted for us and our
' heires, that wee shall take no Mich things, wiih-
' out their common assent and good will, sating
' to us and our heires the custome of wools,
' fckins and leather granted before by the comi-

* nality aforesaid/ I might, in enforcing this
statute, rely upon a rule of law for the exposi-
tion of statutes of this nature, * Omnis impositio
' est odiosa, ideo stricta contra impositions, et

* large ad favorem gravatoruin interpretanda

* est lex contra impositiones data/ liut there
shall not need any such favourable construc-
tion; for the words are in tlieinselves very
cleere. The law consUteth of three parts. The
first is the kings grant of a petition made by the
commons for the releasing of an imposition of
40s. upon a sack of wool, then in demand.
When the present grief was ended, the next
care was to prevent the like raischiefe in all
times to come. It therefore follower, ' And

* wee have granted for us and our heires, that
' we shall take no such thing without their com-
4 mon assent/ which is the second part of the
law. The saving in the end id the third part.

Aeaiust lhi> cenerall provision two objections
have bcenc made. — First, that the words * no

as it doth clecrely shew the cause of their pre-
sent griefe to bee the same which our chronicles I * suvii things/ ate to he understood only of the
sayitwa*, so doth it likewise make it evident, j hurthensomncrse and excesse of impositions,
what it was which they sought to he secured of" and not otherwise. * No such things/ that is,
lor the times to come. Neither are the words , .if.v they, no Mich grievous impositions as this

themselves so obscure, b\ reason of the cent1-

* ■ ^

rahtv of them, but that thov also without know-
ing the occasion ot the making of the law doe
directly point at iinpobiiitfn? ; for, though in-
dtede the word Tallage be, as 1 conceive, to be
understood only of char'ts within the land, vet
tl e wjrd Ayde extcitdelh to all charges of what
nature soetir. Nay, tir.ir even impositions
themselves have been called Aydes or Subsi-
dies, which is all one, U evident by almost all
the k cord* of the Exchequer here amongst us,
especially by tho^e of Ed. tf's time ; in which,
whereauticr you fnsde any mention made by
the kin;:, in his commit iuii% of au imposition
ruisvd b) hiin, hee e\er call* it Su Iridium or
Auxilium. So likewise in the printed statute of
:)6 Ed. J. cap. 11. sou -hill limle, that the im-
position l-y grant < if mc reliant s there mentioned
is c.dled u Subsidic or Ayde. This exposition
if the word ayde, concurring with the occasion

present imposition is. It had betne a poore
security for times to come, to have left it to in-
terpretation, whether or no impositions, which
might happen to be laid in after ages, be as
grievous as the imposition complumcd of in this
lime, by comparing one with the other. Tis so
uncertain a computation, as no man, when hee
thinks thoroughly of it, can imagine, that men,
worth v to sit at the making of laws should suffer
such a thing to pa^e them. Who can certainly
sav, whether our impositions bee more or lesse
grievous then the rate of -10*. upon a sack of
wool ? iiesidc, how eanlv had this I a we bcene
to ha\e bcene eluded l«v nbnimr onlv 12.'/. or
but 1//. in 4 he ne\t imposition ? For, if it he
hut n penny lc»«c, it is no such impoMtion, for
the burden. Therefore ic must n cedes bee ex-
pounded of the quality and very nature of the
tiling colli plained of, and not oi the quantity.
No such tiling, that is, no such thing as this is,

tin- milking of

etoro ■:

n Mich," but1 IK) rjlltei |:v .. I !

■

■ liicli I doe n<™ if:- I tin

Shit admitting, -»y they, that it lee so to

I iIiji the king will !ny * no

, .:;!l illir'ill,

they, ' no other

HU i'"" ■

,1 objection. It wercavery

. to rt-stfaitie it ; if there
:i. ili.' statute thai ifid m-
Hi;t hy [he words joi-
nt, i.'n.t the scope n( [In]
:..,:i to; and that tht? kiuga

I

ted for tbtir «-

■

■

■

■ ..■

' without am "t of parliament.1 r5 ■ ■
■ ■

■
■
liunv but I hen- due follow ecrta!
nimij, !i\ which ii'>t iiui'ly mii and
till Dtlier commodilici nli ■ :■..,■■..

from itnpontlaDi, i iii worth are

I -i -. -ii^i -. r d ii, iJm prwem u ,,! !■■■ i. ii

• innJ other* of iiii parUatnent, ni in i ■

' charge, M, or iMesne upon [tie c
'in uiiiniitfr ulWeuiiil.' Km i-|>( thiae vttatia
it ii' (stead lo I'-ml r'li- 1 tjfii, 10 free tbem l"r,,i:t
hrrpotitiorjt for time to iuiiie,;,s im II ■
aoolftUa, ■mo 1 ' ■ 1 1 In i ire in ed <-■ I

■]•<. ull wol .

, :m ;,. ,,,, ,..

extend to I'm nod Ii ad, I

I'iilltV uf llir' WMi'ili, [In ■ , ■ : , . . ,

i xteod ii «r •■ii modiit«9 ; Is* * bi

hpiail «fiij, lln Own lie thu iheSC; ' that

'the king >> i

■ the eujtnn • custom ■,"

".'■', etjuivH-

M. I-, .p. to the in!-,

' iodrfinimn . ' And nl-

i f, jet I dooht

is a law. And

.... i hut tbe lords do.- in

. , ure [tie king to hold tha

■ami , tod "ii t tin ibeH iu no ■■■

i ii i.-.
.

* and (bul in : nd fur tin

tc Etchew nil

CUUIliel to till' rniiti '.rv nl ll.ii i.liliii

■ prelate* i- hi m a upon

■ ihemthat nwn»ll again it (io tamo in nnj

' poilll ,' which RK tbe Wtr} "Ofdl of the tlHluut

II. [No, S.
Ho. I'.ir.] wn fielded unto bj tin kltir, upon

■ | etition exbfl in d < >n- parltaiMiit before,

hntli try the kind* nod the c BOH*,

that a law might be made agnin>t iu
u innv appearo by tbe records ol the 1 3th
•1 which iiihl' they like«i>c
prayed, thai tbe Icing would be pi ■
idem a charterlo the nme rlleet, to in

rul'.ii ii parlii uf. The sutul ■

liL-tini, Iii. clii.fi.-i lutlinvni. ii ■ pr rtted

bookt imLM.I.ml. .:>■.■ ■

Lin" in tbe I',- "'■'< tb ■'

eiftthat be bad s n i i. . i >' ■

t, that i- i I -;,-. r .

and Ptli hmb thrunahow the kingdom, which
indeed, m ;• vejj enn

(■i.ii! rl .,;.. I

■

H, gram iu

■

1 -ru'ved, 10

rye, il it be

4C7] STATE TRIALS, 4 James I. 1606.— 77* great Case of Impositions, [4W

' not by the common nssent of the prelates,
■ earles, barons, and otlier great men, and the
4 commons of onr said reulme of England, and
* that in parliament.' It hath been objected,
that these words, vide and churge, are to be

understood of churjres within the hind, such as

in i ,. •

' goods and merchandizes, and safely tarry, and
' safely returue, paying the customer, subsidic*

* and otlier profits reasonably thereof due.'
The object km to this clause is very obvious,
for what, say they, can these words, ' other

* profits reasonably due,* signifie other than Im-

«re taxes and tallages, and not of impositions, positions; for, by the words going before, cus-

upon merchnudizes. And this is the only ob-
jection made, or indeed can be made against
this statute ; for the cleering of w Inch, I can
say no more then already 1 have proved by
matter of record lor the opening of the sence

tome and subsidies are ex pre sly named, and
there is, say they, no otlier third profit upon
merchandize but impositions, and indeed tin*
statute thev themselves have vouched in main-
tenance of impositions. To this objection it

of this statute, viz. that this charter and the . might serve for a full answer, that there are
last statute were made upon a petition ex hi- { other duties then customes and bubsidies due

bited in parliament, for a law and charter to
be made against impositions upon merchan-
dizes. And therefore that conjecture of theirs,
that it should extend only to taxes, and not to

upon the landing of wares; for example whar-
fage, cranage, scavni^e, and such like, the which
with more probability I may conjecture to be
intended by these words, * other duties/ then

impositions, cannot but fall to the ground ; es- \ they can conjecture it to bee meant of Impo-
pecially since there is not in the petition, any : sitious. Scd in plants non opus est conjecturis,
mention at all of taxes or tallages, or of any | The best expositors of this act arc those that
other charge or aide but impositions onelv, then j lived in the same times, and they doe cleerely

wluch there cannot alhnost he a cleerer proof,
then that this law being made upon this pcti-

expound this clause to be made against impo-
sitions, as may appeare by the record of si

tion, i? to be expounded against impositions. E. 3. Tso. 29. for you shall there find a petition
Which, if this petition had not been extant, I exhibited in parliament by the commons to
would with no less clecnusso have been proved, j l>ee relieved touching an imposition upon
by considering the mischiefe at the lime of the 1 wools, alledging for a reason of their petition,

miik inn of this law, which was not tallage oi
taxes hut tliosc heavie imposition* of fbure
pound and five poinvd upon a sack of wool, by
way of dispensation with the statute of 11 K. 3.
cap. 1. of which I have formerly made men-
tion. So as this statute, being made in the
iirst intention against- dispensations for money
with a penall law, though the occasion were
particular, yet, the words being j_rcnemll, 1
hold, that wiih reason it may lie extended
against all dispensations with penall luwes
for money. In particular, 1 hold, that the
raising of money, by Dispensations with the
statutes against ale- house-*, is, if not by the
common law, yet by the force of this law, un-

' that every man ought freely to passe, paying

* the ancient custome as it was ordained by the

* kings charter/ litis petition against impo-
sitions was exhibited by the whole parliament,

within six vceres alter the making of the char-

i • i

ter, as may appeare by comparing the times;

and if they had not then thought, that Impo-
sitions had been meant to have bcene provided
against by this charter, they would not certainly
have made such a speciall reference thereunto.
In discovering the wcaknesse of the reason*
alledged in maintenance of Impositions, I shall
not jzieatlv ueede to sav any thing more then
hath I ecu "aid ; because the state «d the ques*
tion liulh bcene already so thoroughly opened

lawful! ; for certainly, k quod prohibitum c^t unlo you, that what<oe\er can, with any colour

of reason, be said lor impositions, may receive
an answer out of that which hath bcene spoken
»l:.i "nsl tl.em. Nevertheless, I will in a few
win iii recall to \our memories their reasons;
:.i:d in us few apply the answers to them, with

* una via, non debet alia permit ti.'

As for the words Avde and Charge, I !;:;v.»
already prc.vcd. that it was a terme by uhicij
impOMti"ns were commonly called in tio-e
times. '1 hat they were also railed (.'ha i_e? it

evident by very many record* of those t. .m -», | -oniu additions of mine owne, that, by 1ft) ing
where complaint is made against them, as '2 1 | both together in your view at one time, the
Ed. U. numb. 1 1. * l/'s commons priont quel.i '. ueakeno&e of the one and strength of llie
' charge d«- '21m. sur sack tie1 lane suit ouste," . other may the l-i tier appeare unto you.
'i\ Kd. S. numb. 1G. 'The common* pruy ' It halli becne . :ml, that the old ens to me of m
' tliit no Change, be tut upon them without us- { de;;ii-inatke upou a sack of wool must have hi*
' sent of p -irliuincui..' The kin^ an*.ueic is, it' ; bejt.iuin^, v-ither by the kinus absolute power,
any Imposition be lewed umiucly it s'mll bee | or by a lc^all a-*ent of the people, which can
taken a. a.ay. Of this kuule in*, re are wry many > hec no where but in parliament, and cannot but
pre>idi.- :»».-». so »> if the | rco chnt petition h;.d 1 app* :>rc «»f record ; but because no such assent
not allied u-> ui" the scope of lh:^ \:wv n« it ! can be 'li.iv.ne, tht reforc thev conclude', that
doth, the \try word-. ihriPM-i\cs, rightly under- j it l.e^an by the kin;s nlsohre pnwer, and hi-
stoid, would ha\e made it (\> e.v. I tern.- that the same power icmains •'till. The

i it the same charter there i«> another cLrse ' su* -stance of ll is argument is ionnd ia my lord
as lxnef;chdl n> t!iL>, to ihi-* elicit, ' all mcr- Dyer in the place eyed by me. It was much

• 4,'h'inrs dpni/en-> :*ntl forreins, except tho-e inturml iu the Kxchvqner. Hut as touching
' mIucIi bo of our ciuuuie, piavwithtuitlet snft*- t!ie p:irl:i ula/ oi the old custome of a demi-
4 iy Cihiic into the r«:.i!ui of Kn»Jnm] with their < muike upon u «>nck, and the other old cu^ome

4*>] STATE TRIALS, 4 James I. IG(X5.— on an Information in the Exchequer. [170

upon fels and leather, it is now no longer against this) liec might easily raise that revenue
urged; because it appears expressly by divers { to the valueof hiscustomes. But no man can,
records of 3 K. 1. in the Tomer —"that it was : nor will J hope otVer to imsiutciiie it to Imv luw-
•ranted ' per h-s grundes ct al prier des comous . full. You see the weakuesso and the dan-

* et de les merchants de tout Euglcterre,' and ! ecrous con*equcnoe ot' this argument, by com-
by a record of 25 E. 1. cap 7. stat. printed, i paring it to other cases of like natme. To s.iy
' per cominunitatem regni nostri Angliu.*,' which . the truth, all these things begun no man can
concurres also with the statute of 25 E. 1. cap. j say certaindy when or how, but by a tacit con-
7. in print; [Ko. fin. intus. M. '24.] ' saving to j sent of linn and people, and the long approbu-
4 us and our heires the custoines of wool*, skins lion of tiu.e beyond the meiuoiy id' any man,
' and leather granted heretofore by the coinini- | and yet no man can directly ailirni but that

* nahy aforesaid/ The pattern toll of 3 E. 1. . most of them might begin by act of parliament,
[M. 1. Ko. l'ar.] which hath these words, * cum ' though now theie bee no record* extant of suth

* prelati magnates ac tota comunitas mcrcato- j antient parliaments. The first parliament was

* rum regni nostri nuper nobis conce-sernnt ■ not kept !> 11. 3. though it be the first in our

* quaiidaia novam consuetudinem, viz. de quo- ] booke*. If we will give credit jto other records,
1 hbet sacco lana: 6s. 0(1. &c.' bein^ somciliing , and to uur best chroniclers, we shall heart* and
obscure, arc by the concurrence of all those1 readeof divers pai!iameut> in the rrigne of kinj;
other rcrorda so rleerely expounded, as there ! John, and of his predecc:-*or Rich. 1. and m
cauDot be, neither now is there, any question ' the rcigne of II. *i of two famous parliaments,
made, but that the custome of a demy-marke, ' one at Cjurinydon in Wiltshiie, the other at
and the other old customes, which by my lord | (iediiigtnn in Northamptonshire. And although
Dyer, and by all those who argued fur or j our chronicle* say, that the first parliament
against impositions in the Exchequer, was held . kept in this realm was held 10 Aprilis, 10' If.
to be due by the common-law e, was by grant ! 1. yet I am of opinion, that William the con-
in parliament. Nevertheless^ the strength of: quernr held parliaments; for what can be else
die argument they still retaine. '1 h-mgh the! understood by these words, 'per commune
demy-mark and those old customer upon the ' consilium torus regni nostri stabiliiuin fuit*
Uaplc commodities were by act of parliament ; which I nude in Mr. Lumherts collection of the
yet, say they , before that increase by parliament ancient (awes of England, iu the beginning of
the king had custome, and no doubt a some j the law* of William the conqueror? Many of
cenaine. Otherwise conld not this increase the statures of E. 1. have no other words.
be called rutva contact udo. Besides, say they, Nay, long before him, in theyeere of our Lord
the custome reduced to a certainty by 3 E. 1. , 712, in the time of Iuas king of the West-
it only tipm three commodities, wool, slLius, and Saxons, I assure myself theie were parliament*
leather. There are many other commodities, I held, and that of the three estates as at this
which did likewise pay custome. How began I day; as may appenre by these words in the
that custome, say they, if not by the kings ab- i beginning of the lawes of king In as, iu Mr.
solute power? And when was that power taken ! I^ambert, ' Suasu ct institute episcoporum nos-
*way? I antwer, admit it were by the kings ab- ' tronun omnium, senatoruin no.»troruisi, et
solute power, yet that the kin;:' hath clecrely * natu majorum, populi mstri in frequentui
discharged himself of that power by act of par- , * magna ;' and moie plainly in the conclusion
liaraeut, I hope I have cleerely proved. Rut I of some other of his lawes ; * hoc factum fu:t
this question, how began the first customs, is j ' per commune consilium ct assensum pm-
ben answered by another question, how began ' cerum, comitum, et omnium sapientium se-

the tine for purchase of origiuall writs, the line

pro iicentiu ivncordumli, the rcrtaiuty of pri-

t-tge? Nay, who reduced it lust to rertaintie,

that the try a 11 of testes should be by twelve

jurors, no more nor no lesse; that the full age

of a man should be accounted twenty-one

yeeres; of a woman fourtetnc, twelve yeeres

her age of eon.»cut, and nine yeeres capable to

bee endowed; a yeero and a day given to sue

in nppeale; the l:kc limitation ofajeere and a most

day in \cry many other cases? In effect, who time, when the Exchequer wu* burnt, shall we

niorum, et popolorum totms regm, it per
' proceptuin regis hue/ which are the same in
Latine which ours is iu English, ' by the king,
1 the lords spirituall and temporal!, and the
' commons.' Why might not the custome upon
woolls be first granted at one of th se parlia-
ments, as well as to have it first begun by the
kings absolute power? There is uouioie proba*
bility of the one than the other. Because

lost of the ancient records were burnt in II. V.'*

reduced all the known grounds of the common-
law |o that ctituintv that now thev are? Be-
cause wee cannot tell how or when they began,
shall v.-ie therefore conclude, that they began
hy the kin::* absolute power, and infeire, that
hjr ike same rcawn, they may bee changed at
on p!";isure ? If t lie king may increase his fines
upon the purchase of origiuall writts (which by
die •aine reason bee may doe, tint hee may
doeLa custome, nay, liee hath more colour lor
rnit then for ibir, because there is no si a tut e

conclude therefore that there were mveruny
such? You see the weaknes of this argument
in all the points thereof. 1 leave it, ami passe
to another.

The king may, say they, restrain, tlic passage
of merchants at his pleasure, which they pr-ne
by divers records; '2 £. 1. in. 18. K.». Pur.
'/E. 1. in. 17. Ho. tin. 31 E. 1. n. -J I. Ko. Pat.
17 116. Ko. Cla. in doiso. I'puii which ihey
inferre, that if ho may rolraine a merchant
that he shall not pa=se at all, he may much

471] STATE TRIALS, 4 James I. I GOG.— The great Cusc of Impositions, [I7i

more so reUraine him that he shall not passe j

except he pay a certain sum of money : for

this, say they, is lessc ih:m totally to rtMraiue

him ; and cui licet quod tnajus, licet rtiam

fjuod minus. Of this uipument my lord Dyer

gave light in his Case of Impositions, 1 E!iz.

and tliis hath teen diver^y inferred by all that

have argued for impositions. In answer of the French Willi's, by quern Mary, by her pro-

which, 1 will consider, how farre the king may riamatinn going hefme the imposition. For

restrain the passive of merchant* ; and then pioofe of which I icferre you to the kings Ul-

nmy by his absolute power restroine the pas*
sage of merchants/ and have therein granted
mure then thr ir pre >idents prove. Hut is the
consequence good, that because the king may
restrain, therefore he may impose upon such ai
passer First I denie, that in our case there is
anv r< stidiut at all, as there was in the case of

will examine the runscqucncc of the argument.
For my part, I think the king cannot re-

ter» patents pieiixtd before the last book of
rate*; by which ii^tjument, the impositions

strain the passage of merchants, but for some : now complained of were altogether raised. You

• . li ■ 1 <• .»i i i ti .• i •» ^1 ^1 _.l I ..'. — C .1.^

' speeiall cause ; wherein to define certainly aud
resolutely, to say for what causes he may, and
for what iwt, 1 will not undertake. Onely let
me inform you, that there is not one of these
presidents vouched by. them to prove the kings
power to re*tr«»iue, hut they are upon speciail
re.W'ns ; as by reason of enmity with such a
nation troin wbec.ee they are restrained, or
because such a commod't) rn.iy not .be spared
within the kiug.ioine. Besides, they are not
restraints from all places, and of all manner of
merchandizes, but from certain places onely,
and for certain *ort» of merchandizes. And
for my part I thinke that restraints in all
t'.c-ss cases, and of li!;e nature, are by the com-
mon-1. iw left to t'te kings absolute power; for
if it were otherwise, it should 1k» in the power
of a merchant for a little private lucre to
enrich the* kings enemies, or to furnish them
with munition to be unployed against the state,
or utrerly to mine the common-wealth, by car-
rying out ii commodity which may not be
spup.d, or by blinking in of some that may be
hurt full. Nay, v. Inch is inoic, such may be the
occasion, that the king may, I doubt not, stop
the passage* of all merchants from all places
ti>r a short time, as upon the death of the late

shall iimle it no other then a declaration of the
kings pleasure so to have it, and a course pre-
fer i bed for levy iug of it. lint admitting, that
the very laying of an imposition did imp lie n
restraint, yet 1 denie the, consequence, because
the kiuginay restrain totally, that therefore, lie
may restniine for a time, or from certaine
places, or certaine commodities, or certaine
merchants ; this indeed is a good argument,
a majori ad minus. But" because he may re-
straint* totally, therefore, that he may give pas-
sane for money, is no good consequence ; for
in our case, there is no restraint at all, but it is
rather a passage tor money. If there be just
occasion of restraint, the law giveth the king
power to restraine. Hut when merchants may
without hurt to the state have passage, as in
our case, to enforce them to pay for that pas-
sage is in my opinion as unlawful!, as to enforce
iiny man whatsoever to pay fordoing that which
he may lawfully doe. Merchants have, as I
may so say. as good inheritance in their trade,
as any man in his landi; and when it may stand
with the good of the state, that they inny passe,
they ought to pas>e us freely without charge
imposed on. them, as any mail ought to hold
his inheritance, or any artificer or other trades-

queen it was put in practise, to prevent intelli- ! man ousrht to exercise their law full trades aud
gence. There may likewise be Mich necessary meuns of living, free from burdens to hi* laid on
use of their ships, as the want of them upon by the kings absolute pov.tr. If all others
some sodaine attempts may be a cause of the should he free, and onely merchants, who ad-
overthrow of the whole state. In such cases venture their persons ami estates in so many
siithee, if the Cfuuiiion-luw did not give the dangers, to hring us from furre places sucn
kim» leave to restrain their passage by his ab- things, as without which we cannot subsist, and
solute power, it were v<.ry improvident i;i the to return us profit for our superfluities, should
hurhc »t points, which cannot be imagined of so ! he subject to inwduiitarie burthens, their estate
wise a law. And yet the kings of this realme were of all other nuns most unhappy aud
have alwaves been sparing in the practise of »hiii-«h, which, of all other trade*, is iudteil
their absolute power in this point ; for theie tin- nol.le^r, and mo-t woithy to be cherished.
are little ks*e then JO acts of parliament, | And here by the way I note, that, in all
touching the opening and shutting up of the other nations of the world, where the merchant
passage of men h.int>, ino«t of which, a> I con- is subject to impositions at the kings pleasure,
reive, were made rather for the increase of pu- the landlord, the fanner, the artificer, the very
fiishint'iit, then for want nf power in the kii.j:; ' plowinm, and all others, arc in like sort snb-
for the breach of a restraint by absolute coin- ject to tn:;cs and burdens, when the king
in.iinhnrnt is punishable, as all othercontempts, plcascth. The merchant is not tho man alone

■ - -. ... • . ■■•• 111. I a'

onely by line aud imprisonment, and not by
l;ife lure of the merchandizes, as in the presi-
dent of the wines, an. 3. of queeuc Mary,
touched bv mo, and is in some of tho>e old

i residents. If it be otherwise, T must confesse
know not the reason of the difference of this
from other contempts. You sec, that I have
yeelded to tlicir proposition, ' That the king

that is subject to taxc», ami all other men free.
If, in the frame of our common-wealth, it were
thought fit to free all other trades and profes-
sions from taxes, much more ought it to he
thought reasonable, that our merchants should
be free, aud by all means possible incournfjed
in i heir trade ;' for our cose is not as it is witii
other nations of the continent. We are island-

47 J] STATE TRIM JS, 4 James I. 1606.— on an Information in the Exchequer. [474

en, and divided by the sea from nil the world,
and in that respect have such use of merchants
is we cannot live without them. If therefore
aujr should he free amongst us, it should be
die merchant ; and not the (mite contrary,
onely the merchant cliarged, and all others
free.' Plato in hi* 8th book de lie p. is of opi-
nion, that the merchant, lor his incouragemtnt
tj trade, should he fret* horn all custome what-
soever. We seek onlv to he free of involun-
Ury impositions. Hut to return to the argument
of restraint, from whence lam a little digressed.
If it he a good argument, that because the king
may restramein toto> he mnv restrain in tanto;
it will not be denied unto me, for it followeth
necessarily, that iu cases where he cannot re-
ttraine in tola, he cannot restrnine in tunto.
But there is no man that will say, that he may
nstraiue thu entmiice and passage of all mer-
< 'turns, to and from all the parts of the world
whatsoever, without any limitation of time, but
tlic restraint to endure for ever, and for all
\.m\* oi merchandizes whatsoever, of must ne-
'-i*?ary ana cuuunon use, to be brought into,
it earned out of the reahue. There is no man
I suppose v\ ill say, that the law hath given
I'-ie Lint; power to make so unreasonable a re-
straint us this ; for it were to 'give him a power
tu destroy merchandize, and consequently to
rui;ie tl.c common-wealth. Beside, it were
against the law of nations, and of reason itself.
It cannot he imagined, that any wise law iu the
r-orld sliould allow it. But if our impositions,
«» it is said, doe iinplic a restraint, and that a
restraint be always the fore-runner of all impo-
titiono, then such an unreasonable restraint, as
I bate spoken of, must needs be presupposed
to Live been the ground or fort -runner of our
fresoiit imposition. For in our impositions,
*re uot all i he merchandize* of necessary and
romnmn u«e charged? Are not all the mer-
chants denizens and strangers, importing from
Uy part, or exporting to any part of the world,
Hibject to the change? Is there any limitation
of time, but to endure for ever ? Iff say such a
restraint had been unlaw full, which I suppose
no man wiil denie, then whatsoever iinplieth
"ich a restraint, which our impositions doe, is
hkewisc unlawfull. But the ill consequence of
t!ri» their argument drawne from the king*
pm«r of restraint, will best appeare by com-
ing it to other ca«cs.

I little doubt, but the king upon some occa-
*wn may lawfully rcstraine the passage of all
Ucn Uiroiifzh the gates of Guidon ; as fur the
purpose, when the citie thall be bciicgcd, or in
tl* time of an extreme plague. Nay, is it not
"VautWitie derived ouelv from him. that the
p\Ui ure *}mt ( very night ? Doth it follow
therefore, that because he may doe it upon
•°d»c extraordinary occasion, or at some time,
'«4t Le may shut np the passage for ever ; or
t'ut presupposing such a restraint bv his abso-
lute power, he may lay an imposition upon
**erj burthen of any thinn brought in, or car-
ntd out, as the duke of Florence and many
°d»r Hates in Italy and Germany doe, or upon

every man by the poll, that shall passe through
the gates ?

You see the weaknesse and danger of the
consequence of this argument, and how it tends
to justitie impositions within the land. And su
I leave it, and proceed to the next.

' The ports and haven tow ties of England
arc,' say they, ' the kings ; and, in regard
thereof, he may open and shut them upon what
conditions he pleaseth.' I answere, — J. That
the position, that all the ports are the kings, is
not generally true ; for subjects may also be
owners of ports, as may appeare by the patent
roll of .1 E. 1. M. 1. pari, where you shall fmde,
tliat king Ed. 1 granted to the lords of port
towncs the forfeitures granted to han hy par-
liament, for not dulv paying the new custome
of the demymarke within every sevrmil port of
theirs, where the merchandizes should happeu
to be imported or exported. But admitting
the truth of the position, yet is the consequence
as weakc and daugerous, as of any of the rest
of their arguments. For are not all the gates
of cities and towncs. and all the streets and
highways in England the kings, and as much
subject to be open or shut at his pleasure, as
the ports are? Nay, whensoever we speak of
the highway in any law business, we call it
via rcgiu, the kings highway ; and the king in
his commissions, speaking of London, or any
other citie, calls it civita* nu&tru London, or
civitas nostra Exon. Doth it follow tliercfore,
that the king may lay impositions upon every
mau, or upon all cominoditu s that shall passe
through any of these places ? Nay, the pates of
the kings owne house, for the purpo».c his pal-
lace of Westminster, are his in a far re ncerer
dtgree then any of th» se. May he therefore
by his proclamation impose upon every man
that shall passe in or out at W cstminstcr-hall
doore.a sunmie of money ? Doubtless he mav
not ; because the king is a person puhlike, and
his subjects ought to have accoM* to him, its to
the fouutaine of justice, and to the courts of
justice sitting by his authontie. I make little
doubt, but his majestie may upon just occasion
cause any of these passages to l>e •dint, as ho
may also the passage at the havens. But
when the passage may without dang* r to the
state be open, and that the subjects may pa»se,
his majestie may not then exact ir.oi.ev f.»r their
passage ; for the law hath yiven the king power
over these things, for the g-md of the common-
wealth, and uot then by to char»c and hmdeii-
the subjtct. If the km: mny not « xact money
for passage in and out of his court tan ■*, be-
cause of the publtkene-se of his per-mi ; nor
lor passage through the srites of cities ; nnirh
lesse may he for passage out at the ports,
which are the great «rate»* oi the kingdom, and
which the subject ought as fru-Jy to ei.joy, as
the avre or the wut« r.

Another ot their Arguments [the fourth] is
this. * The king is bound to protect merchants
1 from ^poile by the enemie ; he miuhr to lorti-
' lie the havens, that their shi| s may tiicre
* a hide in safety ; he ou::ht; it occasion

475] bTATE TRIALS, 4 James I. 1006.— 77* greai Case of Impositions, [476

' send ambassadors to forrtin princes, to nego-
4 tiate for them;' and many the like charges is
the king by the law to undcrgoe for the protec-
tion of his merchants. It is reason, therefore,
that his expence be defruicd out of die profit
made by merchants ; and consequently, that
he may impose upon merchandize a moderate
charge, thereby to repay himself. The conse-
quence of this argument is thus farre true.
The law expects, that the king should protect
merchants. Therefore it allow eth him out of
merchandize a revenue for the maintenance of
his charge, which is the old costome due, a? at
first I said, by the common-law. But it is no
good consequence, that therefore he may take
what he list, no more then he may at his plea-
sure increase that old revenue, which the law
giveth him for protecting of subjects in their
suits, or for protecting wards, &c.

Another Argument of theirs [the fifth] is
this. ' All other princes of the world may ini-
' pose upon merchandize at their pleasure ;
' and so may make our merchandizes hss ven-
' dible with them, by Living an imposition upon

* them, to be paid by n>, when they are brought

* into thtir territories, wln-rcby their owne

* commodities of the same nature may be sold
' more to the gaine of their nici chants, and our

have not found redresse, our kings have held
the league as broken, and denounced warre,
or seized all the goods of the same princes sub-
jects within England ; and I dare say there
have been more warres undertaken by our
princes against forrain nations onely for this
cause, then for any one other cause whatso-
ever.

Besides, our kings have in this case some-
times made use of that their prerogative of re-
straint, either by prohibiting our merchants
from carrying our commodities into those
parts, where they are charged with impositions,
that so by the want of our commodities, for-
rain e princes might be enforced to abate their
impositions lnid upon them ; or by restraining
the merchants of forrain princes to import or
export commodities from hence ; by which
meanes forraine princes have been compelled
to deale favourably with our merchants for the
good of their owne subjects. All these are
lawful! and ordinary means to prevent or re-
dresse the inconvenience which may grow by
the impositions of oilier princes. If all these
ordinary means should happen to fade, which
can hardly so fall out, rind that the laying of
impositions be indeed the only means that is
left to redre«se the inconvenience, why should

' merchant impoverished, or driven from Irs not that be done by act of parliament as well

* trade. They may also lay impositions upon

* our merchants ietching commodities from
' thence, and leave their owne merchants i'v^c
1 from any imposition in the same case ; by
' which their merchants shall reape all the pro-

* lit by that commodities in affording it better
' cheape to us here, then we can fetch it, and
4 consequently our merchants shall be undone.'
Many the like cases have been put to prove,
that if the king of England may not impose, as
other princes may, they shall be nble at their
pleasure to destroy our trading. This I con-
ceive was the same as now it is, during all that
time from Ed. 3, till queen Mary ; and doubt-
less it could not but sometimes, during that
long space, so fail onr, that forreine princes did
put their power in practise to our prejudice,
and yet we heare not of any imposition laid by
any of our kings by their absolute power;
which may give any man assurance, that they
tooke some other course to meet with the in-
convenience ; and indeed the meanes are divers,
which these our kin^s used to prevent it. —
First, they were carcfull in all their leagues and
treaties with forrain princes, especially to pro-
vide for it ; as may nppeare by the record* of

in these times, as it was in 7 Hen. 7. c. 7. to
lake downe the imposition of foure ducates
upon a but of malmsey, imposed by the Vene-
tians, and as it was done by queen Eliz. the
19th yeere of her reigne, to prevent the laying
of impositions by fonaine princes upon salt-
fish, as may nppeare by the printed statutes of
10 Eliz. c. 10. ? But, as I have said, the pro-
vidence of the prince and ordinary power of
restraint may very well meet with the inconve-
nience.

These are the chiefe Reasons made in main-
tenance of Impositions. The weaknesse of
them, and their dangerous consequence, you
cannot but perceive; for, by the same reasons,
taxes within the land may be as well proved to
be lawfull. On the contrary part, you have
heard the reasons against Impositions fortified
by many records and statute* in the point. So
as I conclude, that Impositions, neither in the.
time of warre, or other the greatest necessitie
or occasion that may be, much lesse in the
time of peace, neither upon for mine nor inland
commodities of whatsoever nature, be they
never so superfluous or unnecessary, neither
the ancient leagues. Neither is there any | upon merchants stranger-* nor denizens, may
league of late time, that hath not had an article ' be laid by the kings absolute power, without
for provision in this point ; which leagues for j absent of parliament, be it. for never so short

the most part are upon oath on both parts.
And vet, for further securitie, our kin^s have
always had arnbas:*adoi s resident in the cotuts

a time, much lesse to endure for ever, as ours.
Though this be now my opinion, yet am not I
so obstinate therein, but if vet I heare better

of such forrain princes, to put them in mindc : reason, I wdl once againe change my minde.

of their leagues, if upon any occasion onr
merchants have in that case happened to be
never so little wronged by them ; and if upon
complaint of the ambassador, our merchants

In the menne \\ bile, you see 1 had reason t*
alter my first opinion, as being grounded upon
very weak reasons, an now they nppeare unto
me. And so 1 suppose they doe also unto you.

*77] STATE TRIAIJS, 4 J axis I. 1006.— on an Information in the Exchequer. [ Uh

Mr. Yelvertos's Argument against Impositions by the Crown.*

The question is, Whether the King, without
Absent of Parliament, may set Impositions
upon the Wares and Goods of Merchants
exported, and imported, out of, and into
tins llealme ?

Three things have been debated in this par-
liament, that have much concerned the right
of our whole nation, of which every one of
tbetn hath exceeded the other bv a gradation
in weight and moment. — The first was the
change of our Name, which was a point of ho-

* By an order of the commons licencing the
publication, this Argument appears to have
been first printed in 1641. But it is here ex-
tracted from an edition of 1G58. The title
runs thus : ' The Rights of the People enncern-

* ing Impositions, stated in a learned Argu-

* ment ; with a Remonstrance presented to
' the Lings most excellent majesty, by the ho-

* nourablc House of Commons, in the parlia-
' roenr, a. d. 1010. annoq. regis Jac. 7.
' By a late eminent Judge of this nation.' — The
following Address to the Reader was prefixed.
'To the courteous Reader. Thi3 excellent
'Treatise of the no leas worthy author, happily
' falling into my hands, 1 instantly thought it
1 my duty to make that public, which h*id given
' so much useful satisfaction to many learned,
'and judicious, in prhate; remembrinj that
'antient adage, bonum quo contmunius, to pras-
' tuntiui. — I hope it is needless to commend
' either the reverend author deceased, the
' treatise, its use, or stile; since the authority
' by which it is published, is a sufficient urgu-
'uient of their known worth. — If thou kindly
'accept of his good meaning, whose oncly aim
'in the publishing hereof was the common
' good, it will be an encouragement to him
'(and others) to present to thy view, what may
' hereafter fall into his hands worthy thy fur-
' tber perusal. Thine ; J. B.'

The Address to the Reader was preceded
with the following Remonstrance, which was
made to king James by the house of commons
S-ith May 1610.

'A Remonstrance delivered to his majesty in

• writing, after the inhibition then by him

• to the commons lioiue of parliament, as

• well by word of mouth, r,s by letters, not

• to proceed in th*» examining \m right to

• impose without absent of p.uliurnc nt.

1 To the King's most excellent Mrtjc-ry.

' Mo*t gracious Sovereign ; whereas we yoi:r
4 majesties most I. up. I;le subject*, the common*
'assembled in pa'lu.nieiit, have received f j »t
' by aieosoge, and ^uce by speech from yo»ir
1 liiajetty, a command of n .vtr:ii;it from di lmt-
' in* in parliament your imje»rie> rii_'l t of ins-
' poking upon your subject good* e^ ; oi '■•!'. i r
4 iciportc-ii out of, or into tins reidui; \i t ;d-
1 lowing ut to cMtnjiiU' the irritvance of ti.i5e

w
o

nour, wherein we shewed ourselves not willin_
lo leave that name, bv which our ancestors
made our nation frmous; yet have we lost it,
[the name of Britaiuc not admitted in icgall
proceedings,] saving onely in those cases,
where our ancient and faithfull protector, the
common-law, doth rtt'.tine it. — The second was
the Union, a question of greater moment ; for
that concerned the freehold of our whole na-
tion; not in so high a point as having, or not
having, hut in point of division and participa-
tion, that is, whether we should enjoy the bc-

' impositions in regard of quantity, time, and
' other circumstauces of disproportion thereto
' incident : we your said humble subjects no-
' thing doubting but that your majesty had no
' intent by that command to infringe the
' antient and fundamental right of the liberty
' of parliament in point of exact discussing of
1 all matters concerning them, and their pos-
' sessions, goods, and rights whatsoever, which
' yet we cannot but conceive to be done in
' effect by this command, do with all humble
' duty make this remonstrance unto your ma-
' jesty. — First, we hold it an antient, general
' and undoubted right of parliament, to debate
' freely on all matters which do properly concern
' the subject, and his right or estate ; which
' freedom of debate being once fore-closed, the
' essence of the liberty of parliament is withal
' dissolved. — And whereas in this case the sub-
jects right on the one side, and your majesties
' prerogatives on the other, cannot possibly be
' severed in debate of either : we a I ledge, that
' your majesties prerogatives of that kindecon-
' ccming directly the subjects right and interest,
' are daily handled and discussed in all courts
' at Westminister, and have been ever freely

* debated upon all fit occasions, both in this
' and all other former parliaments, without rc-
' straint ; which being forbidden, it is impossi-
ble, for die subject, either to know, or to

< maintain his right and propriety to his own

< lauds and goods, though never so just and

< manifest. — It may further please your most

< excellent majesty to understand, that we ha\e
' no ininde to impugn, but a desire to inform

* ourselves of your highness prerogative in that
« point, which (if ever) is now mo-: iicce»*ui v
' to be known: ;«nd thoii':h i*. r.erc to n-> other
' purpose, yet t:> satire th.- j*«*ncraliiv of vour
1 majesties sid.pMt**, \\\\*\ Ending lh< msehev

* inr.iM uiicvcii bv tl '• <• w w impo* u : »n>, (ij

* Io:.'.ru^h in irn;r{. 'i.r.iia ;ojd iSc-i.iv.ir'ii.---
1 TIk-jc T'?.±ui'.>, «!';-jmI «4i«vi !i.ij*i. being the

* pioper re»r*ons of p:»:;l:niei:J, do \ !«.:id for
1 l!;o ii' hohliji:: <-f ihl* i i:r until nt r.ght and
' li'ertv. \h)v.\ ' v »e?ing it Inth pleas-Mi \uiir
1 X'.'ij^yts t>) i;i»i-t upon lliikt judgment it> ihf

* J.\i l.itjt/.', ,r: !)m;>c diiection sntl'.i icnt !•;:■ !:■

* v.i'l.o-it *irl!.T i'Miiui;i:Mi'in: upon j»r'*at de-
' *>ii< ■ >!' i'ei.\i<:<! yw : ijc :iy Uli^alisiifd ill no

< one poinr of «i.e uf o:;r intents and pro

479] STATE TRIALS, 4 James I. 1606.— The gnat Case <?f Impositions, [480

nefits and liberties of the kingdome ourselves
onely, as we and our ancestors have done, or
admit our neighbour nation to have equall
ri^ht in them, and so make our own part the
le?s, by how much the greater number should
be among whom the division was to be made.
This was adjudged against us both legally and
solemnly, [Coke 1. 7. Calvin's case.] and there-
fore in that we rest, hoping of that ellect of this
judgement which we read of iu the poet,

' Xros Tri usque mihi mdlo discrimiue habetur.'

The third is the question now in hnud, wluch
exceed eth the other two in importance and
consequence, concerning the whole kiugdome ;
for it is a question of our very essence ; not
what we slmll be called, nor how we shall di-
vide that we have, but whether we shall have
any thing or nothing ; for if there be a right
in the ting to alter the property of that which
is ours without our consent, we are but tenants
at his will of that which we have. If it be in
the king and parliament, then have we pro-
pertie, and arc tenants at our own will; for
that which is done in parliament is done by all
our wills and consents. And this is the very
state of the question wluch is proposed, that is,
whether the king may impose without consent
of parliament.

Impositions arc of two natures, forreigne
and intestine. — Intestine be those which are
raised within our land in the commerce and
dealing that is at home within ourselves, and
may as well for that reason be so culled, as for
that ' vescunnir mtcstinis reipublica;,' they arc
fed and nourished with the consuming and
waiting of the entrails of the common-wealth.
Against these I need not to speake; for the
king's learned councell have with great honour

* ings, we profess touching that judgment, that
' we neither do nor will take upon us to re\er>e

* it; but our desire is to know the renins

* whereupon the same was grounded ; and the
' rather, for that a general conceit is hud, that
■ the realms of that judgment may be e.ucirl-

and conscience in full councell acknowledged
them to be against the law.— Therefore I will
apply myself to speak of impositions forreine,
being the single question now iu hand, and
maintained on the king's behalfe with great
art and eloquence.

The inconvenience of these impositions to
the common-wealth, that is, how hurtfull they
are to the merchants, in impoverishing them in
their estates : to the king in the increasing of
his revenues by decay ot tralhque ; and to the
whole people in making all commodities ex-
cessive deare, is confessed by all, and therefore
need no debate. The point of right is uuw
only in question, and of that I will speak
with conscience and integrity, rather desirous
that the truth may be knowne, and right be
done, than that the opinion of myself or any
other may prevaile. — The occasion of this ques-
tion was given by the Book of Rates lately set
out, affronted with the copy of letters patents,
dated July 28, 6 Jac. In which book, besides
the rates, is set down every kind of merchan-
dise, exported and imported, for the true an-
swering of subsidy to the king, according to the
statute of tonnage and poundage.

In the first yeareof his reigne there is an ad-
dition of impositions upon all those kind of
wares, which witliin the book are expressed,
and the rate of the imposition as high and in
some cases higher than the rate of the subsidy :
and this declared to be by authority of those
letters patents. Hereupon considering with
my selfc, that heretofore the setting on of one
only imposition without assent of parliament,
upon some one kindc of .merchandise, and that
for a small time, and upon urgent necessity of
actuall war, did so atTeet our whole nation, mid
especially the gre'it councell of the parliament,
being the representative bndv of l!:o whoh*

; vour maje-ty so true n \iew of the s'alc and
' right, of your:-ubjeei«,, thai ,\ w.-iald have been
' unK.ii to your maje*tk-s c:,nM:t ami «ati&far-

* all

" lion, (which we most d <irc,) and removed all
1 causes of fear.- and if. ;».!o-.:-i«i from iho royal
i hot-it* of your subject-, whirh ii 'as it ought

** cd much further, e\en to the utter ruine of ■ ' to hoi our careful endeavour: whereas con-

* the anticnt liberty of this kingdom, and of • " tn:"iwi«je m lii; t uihi;' wav directed bv vour

* your Mibjtets riiiiu »f propriety to ilii.ii* uoods i 4 inaje>ty, we eai:in'-t falely proceed without

* and laud.-. — Hun for the judgment itself, be- j ■ con. iudini: for ever tin* ri^ht of the stilject,
' iug the first and list that cwr was t-iteu iu j * whn !i witliu'.t .hie i -.animation there nl «e

* that l:iud (lor ought aprcarinL' unto us,) and ! * mav not do. — Y\\» therefore your loval and
' b'ingoiiely in one case, and a<>.iii>»;t one man, I * dutiful coinneji-. ,iot swerving from the ap-
' it can liiudi- in Jaw no other but thai person; i * proved *trpi o. our a: c>:ors, mo.-t humbly
4 and is also n-vcr-ibh? by writ of error granted * and in*-i aiiily be:»cch your gracious m 'jesty,

* heretofore by act of parliament : and neither j * that, "ithout ouence t ■> the same, we may,

* he nor a:iv other subject i:s debarred by it ! 4 aci <.ri1iii<: to the undue-ncd lijbt an I lilicrtr

* from tivin^r ins njfbl in the ssji»» or like r -i.se. > " o» ' p-.irli:iiiie:it, ].'o< v i lia our mttudi.1 1 course

* iu any of \uur inair r-ties emit- of re. o«-i| at ' of a full < <amiiMiioti of riw-e impovtions ;
' We-tniiii-.tcr.— -LaMly, we niithiiiL dou'.i, but
' our iiiiefulfd proceeding in a fill examination
' ol ilio ri'jhf. nature, and ni< asii:e of tiic>e new

* impusiiK'-.s (if this restraint had iidt come be-

* tvecu; sh itild not have been so orderlv and
4 so ni'MleiMiely earned and imployed to the
4 ruuiifold rceui-»3iii6:» of these tiuit>, and ^iven

; that su v.c mviv rhe.n fnllv '»"!*•» on to vouruia-

* je-Nlii* l,:M:ie->v iV-un \\h:ch l!i!> **r-ip hath by
k diversion so hm-j: w;;h-!'e!d us. And we vour

«

1 lii:.iesi ( - m.'st hut'.1 -ie, f ui!. fid, and lovnl sub-

1 *

4 iects shall ever laceonii. «: to our bounden

* duty j pray tor \uur inajcsta> 1 >ng and happy

rc.^n uu'i us

4*1 J STATE TRIALS, 4 James I. 1603.— on an Information in the Eicheqncr. [4Sf

common •wealthy that neither the sun Hid shine,
nor the rivets run their courses until it wus
Liken otf by the public judgment of the whole
•tote ; 1 thought it concerned me, and other j
members of that councell, that were no less i
trusted fur our country than those in former I
times, and have their r.ct..>ns to guide and di- i
rcct us, to hare the saine cure they had in pre- i
tcrviug the rights mid liberties of the people, '
liaviiin now more cmue than they hud, tor that ;
the impositions now set on without assent of :
parliament, arc not upon one or two speciall ,
kinds of g<>od«, but almost indefinite upon all, >
and do extend to the number of many hun-
dreds, as appear* th by that printed book of
rates, and are set in charge upon the whole
kingdome as an inheritance to continue to the ,
king, his heires and successors for ever; which
limitation of estate in matter of impositions
was neter heard of, nor read of before, as I
conceive. — The inducements expressed in tliese
letters patents are much upon point of state,
and with reference to the rights and practise of
fbrraine princes. For this I will not take upon
me to enter into the consideration of such great
mysteries of policie and government, but will
only put you m minde of that I observe out of
Tit. Litius [L 3.] the Roman historiographer.

* Orunem divini humaniquc maris memoriam
1 aboleinus, cum nova percgrinaque patriis et

• priscis pneferimus.'

To that which hath been spoken for the kings
prerogative, I will give answer to so much of
it as Froay conveniently in my passage through
this debate: wherein I will principally endea-
tour to give satisfaction to such new objections
as were made by the worthie and learned coun-
sellor of the king, that spake lust in mainte-
nance of his majesties prerogative.

The case in termer is this. The king by his
letters patents before recited, liath ordaiued,
willed, and commanded, that these new impo-
sitions, contained in that book of rates, shall
be for c%rr hereafter payd unto him his heirs
and successors, upon painc of his displeasure.
[Pat. July f8 Jac. 6.] Hereupon the question
ameth. whether by this edict and ordinance so
made by the king himselfe, by his letters pa-
tents of his own will and power absolute, with- '
out av>cnt of parliament, he be so lawfully in- I
titui«»d to that he doth impose, ns that thereby, i
be doth alter the property of his subjects goods, I
and is enabled to recover these impositions by •
ojorse of law. !

I think lie cannot ; and I ground my opinion i
epn these four reason v — 1. It is against the;
iiaturall frame and constitution of the policie !
oi this kingdom*, which is jus publicum regni,
and so Mtbverteth the fundamental! law of the I
reahne, and imluceth a new forme of state and

fi''vcruuifi;t. — 2. It is against the municipall
»» of the land, which is jus privatum, the law
of property and of private right. — 3. It is
against divers statutes made to rcstraine our
kuiginthis point. — 4. It is against the prac-
tice and action of our common-wealth, contra
9»tm majorum ; and this is tbt modtstcst rule
Vol. II.

to limit both kings prerogatives, and subjects
liberties.

Upon the first and fourth of these foure prin-
cipal ground* I will more insist then upon the
second and third, both for that in their own
nature they are a more proper matter for a
couueel of state, to the judgment «»f which I
apply my discourse, and they have not been
enforced by others ; as also lor that the other
two, as more fit for a hum*, and the courts of
ordinary justice, have by some professors of
the law' been already most learnedly and ex-
quisitely discussed.

For the first, it mill be admitted for a rule,
and ground of state, that in every common-
wealth and government there be some rights of
sovereignty, jura %nwjrstatu9 which regularly
and of common right doe belong to the sove-
reign power of that stite ; unless custome, or
the provibional ordinance of that state, doe
otherwise dispose of them: which soveraigne
power is potcstai svprcmu, a power that can
controule all other powers, and cannot be con-
tended but by itself.— It will not be denied,
that the power of imposing hath so great a
trust in it, by reason of the mischiefes may
grow to the common-wealth by the abuses of
it, that it hath ever been ranked among those
rights of sovereign power. — Then is there no
further question to be made, but to examine
where the soveraigne power is in tliis king-
dome ; for there is the right of imposition.—
The soveraigne power is agreed to be in the
king : but in the king is n two-fold power ; the
one in parliament, as he is assisted with the
consent of the whole state ; the other out of
parliament, as be is s/dc, and singular, guided
merely by his own will. Aud if of these two
powers in the king one is greater than trie
other, and can direct and controule the other;
that is tu pre ma polcstus, the soveraigne power,
and the other is subordinato. — It will then be
easily proved, that the power of the king in
parliament is greater than his power out of
parliament; and doth rule and controule it;
for if the king make a grant by his letters pa-
tents out of parliament, it biudeth hiiu and his
successors : lie cannot revoke it, nor any of his
successors; but by his power in parliament he
may defeate and avoyd it ; and therefore that
is the greater power.

If a judgement bo given in the KingVbcnch,
by the king himselfe, as may be, and by the law is
intended, a writ of error, to reverse this judge-
ment, may be Mied before the Liiii: in parlia-
ment ; which writ mut-t hi* jm anted by the chan-
cellor, upon bill- indorsed by the kinu himself
as the book is 1 II . 7. 19. o [Lib. Iiilrsx. fol.
302. c. 1.] And the forme of the writ of error
is, that it being diiected to the chicfe justice of
the Kiug's-hench; ' quia in recordo et pro-
' cessu, ac etiam in rrdditione judicii loquehr,
' quae fuit in curia nostra coram nobis, error
' intervenit manifestos ad grave damnum, cVe.
' no* errorem (si qnis fucrit; modu debito ror-
* rip, et partialis piardictis plenum ct reln-cm
'justitiatu fori vUcmes, in mHc parte ruh\$

'J, I

4$:i] STATE TRIALS, 4 James L KJOti.— 7fc gnat Case qf Impositions, [48+

' mandimns, qund rcrordum er. processum lo- subjects goods, without their consent, it need

* unci a* iiliun rum omnibus ea taujmtibiis, in not to be proved more than a principle. It if
' pne.'e.ns paiiiuiiientuin nostrum sob s:^illo uu jus indicant ^ an old l.omeborne right, declared
( distinctc ci aprrtc miitas et hoc breve, ut to be law- by riivere statute s of the rcahne. At
' iu-pt'cris, i\c. nos de conditio ct ndvUanicnto in 'M K. .'5, cap. 2. that no otiicer of the kings,

* dimianrum spii itu.il. u:n it tciiipor.diuu:, ac or of his heires, shall take any goods of any
' communiLitis in j-nhamento no-in prjMicto manner of person without theassriit and good*
' existcntis, ulteriiis pr » errorc tiio C/i'i^mio ' will of the party to whom the goods belonged.
c iieri faciamu-, <\v.h\ d jure ct secundum 1c- i lb*' same is declared in many other statutes

* pern ct con-net nnmem i*i jmi nci.«-rri An. ha: ft:- ! made against prisages and purveyances. Nei-
' crit faciendum.* S > you see the appeal is ther hn\e ever any kings attempted to go
from f he king o tot i he parliament, to the kin;i i plainly and directly ti gainst that right, but
in parliament; tlie wait is in his name; tin* i have de.:>ed ccrtaiue lejal colours and sha-
rectifviiii: and correcting the eno-Ts is liy him, dowis for their wrongful! doing in that kind,
but with the uSdtnLof the louh and coma. "as, ! -■■ hic'i I doe find were of three sirts: by way
than wh cii there can he no strnii:!i'i* evidence j of Commission ; by way of Loan; by way of
to piovc, that h.s power out of parliament N | Uen>. voleuce. Commissions of all other were
vihordinate to hi-* power in parliament : for in | the most insolent; for they went out, as it
ac:k of parliament, he they Lwe«, !2,:o"nds, or were by autl

wh itv -ever rise, tac act aiid'powcr :s the km«;$,
but with the a- suit ol 1 1 1 : - lords and common*,
whkh inaki -th it the iuo-»t -inv rai»iii: and su-
preme power above ail, and ron*r ulahle by
ijoi.o. inside- ll>io r;;;ht of iiiipp«in:r, there be
othi. rs in the kin^dome of the y.xn.v. nature. As
the power t»i make lawcs ; the power of nnt'j-
raii/.ation ; the power of e.ection of arbitrary
government : the power to jud^e witliout ap-
peal c ; the power to legitimate; all which do
be lot g to the king only in parliament. Others
there i e of the same nature, that the king may
exercise out of parliament, which right is grown
unto him in them, more in those others by the
use and practice of the common- wealth, as
denization, coynage, making wurre; which
power the king hath lime out of minde prac

jority, to levy ayd of the people
upon sjreat necessity c»t* the common-wealth.
1 hesc were coudemm-d in parhument, 21 £.3,
numb. 16, upon a grievous complaint m:ide of
tlie o>eof them by tlie commons, unto the kin?
in parliament : therein the people doe pray
the kin!!, that he would lie pleased to remem-
ber, how at the parliament held the 17th year
of iii— raign, and at the last parliament, it was
then accorded, and granted by their said lord
tlie kin_' and his councell, that there should goe
out in commissions out of (Jlr.u'icery for
hob! elcrit'S, archers, and other charges to be
levied upon the people, if they were not grant-
ed in parliament ; which ordinances were not
observed, by reason whereof the people were
impoverished and decayed, for which they
prawd the kinc, that he would be plca>ed to

tised, without thcg-tin&ayii'g and mnrmuniii: of I take pity of his people, and the ordinances and
his subject*. Rut ili'..-e other powers before- ■ grunts madt to his people in pariiameut to af-
menno.,ed have ever been cv cut, d by hnn in j linne and hold ; and that if Mich Com minimis
parliament, and not olhciwisc, but with the ■ goe out without aspens ol parliament, that the
rcluctatiou of the whole kingdom?, j common*, which are grieved thi rebv, may have

Can any man giv;» me a n ason, v.hv the _ writs of supirsattii^ according to the >asd o:di-
king can only in pai liainent make hiwes ? No nauci, and th it the people be not bound to
man ever read imv law whereby it was >o or-
d.med; and uv i;o man evr read ttait any
kiiuj i r.i«'ti>ed tiie cMiitr.irv. 'Mi«-ref-irc it is
the orii;iaall r\\±\\ «d" the kin-jdoiue, and the
wry ii.it ural co..-:itu>i'j;i of «»\r s::;te ;ud jio-
Jicy, hem;; one of ti e hi-jl*. -r ri»!;ts of sove-
rnii.M:e power. So it i« in nat':raii/;.tion, ie.i:i-
m:.tim, and the rc.-t of th:d ^>n\ \ vutvv uci'ed.

It hath hcin alleadu' «l, that ti.o>e, wbi*. !i in
H;j\ c;;us»» have euforceil their re laor..? Im-ui
ti.:-, rnavj.,!.' o;' o;-r-, l 'J'li-» f the kin- c^i'iiot
' niter T I :c- iaw/ h.ue d»\t r<.d fro<n t!'.;' rp:e—
l-'in. — 1 -:i\ iii.-l(.- 1:111,1- th-y ban- n -t ; ;..r

obey them.

lo this the kincrs Answer i«, — ' Si ul tiel im-
' po.>-itioii luit fait per trand i:ecer>sitio, et ceo

* del assent do prelatiS, counto, barons, et

* jintr. j> vraude-* et auotres bonus discommons

* adoinj; jroiMt>, neaiit m«»in-» no-tro seignior
4 le rov no vii-t, ipie iic-1 ie.,pr;^ition non duc-

* iiieiit lajt soil ire:l in < oi.?c:;iii nee, tins voet
' ijue k:s i»rdi:i.iii'-L-» dont ct -»t petition fait

* mi r-tion >«>■; ha-iineiit «;ai'di .■>.'
Ti.e 1..^ 1 1. i:e ili it e\er ki. ■«: attniipted that

con ;■.*«• «>f c\: ct! n w-i> 17 II. }', u| on the tak-
n:" «•!" t';e 1V« u^ii kin*: at l\:\^a, by the forces

thai , in <-<■• ct h the wry o:.-. «.ii,,u uo\i- in I and ; ol v i'-.isles the :.:sii [MuiM'-j Annai>, 17 11. H.]

Car:i.ial V."--!»- \, ba\inj; a p.npose to put the
1.-: ■■■ into a wi'iTeal out that «.:uair< I. "and f:nd-

niiist i=» his r.i'f.-isiai!! \, ad>>e.' tl.ii wav, to send

for if he -:!oi.e «n.t ot parl-.anui't nnv i-.ij i;s ■,
he alt. n.-lh the l.iw of Y. .:;;.uid in oite v\ the e
l«.v) in. ine f'inii:-p?;.j:-.,| j ,■/:„(... \)
r ::,i !■ tahch.s ~-,|,; -..r . v.ot#d.; »"r- >«ri »hi. ;n, v. it'i-
o:r .'•- la: of the pa.tt, xvhiCi I> a.-ii^sr riio

■ i.it ri;:ii:i.i^«iii;i»t a;.d !•; tlr. 1.1 to le\ie ayd of

thi

lyt* toe l-uv,,, a U, , :,i ,.;:er 1!k- r...i-. r v
ot i;:rf «^J* i'. -£».»>, vlui-.t ,<. a!-,, a.-':::^ ti.e
la>^'. r

'I ii *t she 'iin«i of !■'»» : • i t •

t • i '
ir.r<- \i:,\

; ■: to ti e \a!ue of their es-
w -iirli (ix'oiitcnt to the
'■ I' ■!»• iv:i!:ii„ r! ■«: ;» c. »•..?'«! ;:*■ many places an
-.iciu d ;> !,v i! ./:i : ;<': ! thf en:- " :ial, being called
t> ■:;» ■■■ :vv so-- oar oi ,'.:.s b:id .abice, did justi-
tlv. .iii* fu-% by 1--: ■ •sr-.u'-p'ti1 of .''.rsepb, who

STATU TRIALS +Jai

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487] STATE TRIALS, 4 James I. 1 600.— 77* great Case qf Itnpoutiont, [4*S

ground, that a king cannot take one penny
om his subjects without their consent, but it
is violence. And you may there note the
mischiefs that grew to the kingdom of France,
by the voluntary impositions first brought in by
Charles 7, and ever since continued, and en-
creased, to the utter impoverishment of the
common people, and the loss of their free
councel ot three estates. And if this power of
imposing were quietly settled in our kings, con-
sidering what is the greatest use they make of
assembling of parliaments, which is the supply
of money, I do not see any likelihood to nope
for often meetings in that kind, because they
would provide themselves by that other means.
And thus much for my first reason, grounded
upon the natural constitution of the policy of
our kingdom, and the publike right of our
nation.

9. For the point of common-law, which is
my second Reason, it hath been well debated,
and nothing left unspoken that can be said in
it; and therefore 1 will decline to speak of
that, which other men have well discussed ;
aw* the rather, for that there is nothing in our
law-book directly, and in point of this matter;
neither is llie word (imposition) found in them,
until the case in mv lord Dier, 1 Eliz. 165; for
we shall finde this business of an higher strain,
and alw:ti( s handled elsewhere, us afterwards
shall appear. Yet I will oiler some answers
to such objection as have Leen made on the
contrary in point of common-law, and have not
been much stood upon by others to be an-
swered.

The objections that have been made are
these; that from the first book of the law to
the last, no man ever read any thing aguin&t
the kings pewer of imposing. No judgement
was ever gh en against it, in any of the kings
courts at Westminster. Or her points of pre-
rogative as high as this, disputed and debated,
his excess in them limited ; as in the book of
42. Ass. pi. 5. where the judges took away a
commission from one, that had power given by
it to him under the great seal to take ones per-
son, and to seize his goods before he was in-
dicted. So muster Scrogs case 1 and 2. Eliz.
Dier. 175. the power of the king in making a
commission to determine a question of right
depending between two parties, notably de-
bated, and ruled against the king, that he could
not grant it.

To this I answer, that cases of this nature,
of which the question now handled is, have
ever been taken to be of that extraordinary
consequence, in point of the common right of
the whole kingdom, that the state would never
trust any of the courts of ordinary justice with
the deciding of them ; but assumed the cogni-
sance of them unto the high court of parliament,
at the fittest place to decide matters so much
concerning the whole body of the kingdom. As
% Ed. 3. 7. it appears that Ed. 1. bad granted a
charter to the men of Great Yarmouth, that
all the ships of merchants, coming to the port
•f Yarmouth, should land their goods at their

haven, and not at any other haven at that port,
as at Garneston, and Little Yarmouth, which
were members of that port. This was very
inconvenient for the merchants, and a great
hurt to traffick, and therefore the charter was
questioned in the time of Ed. 2. and adjudged
good by the council. But the parties not con-
tented with this judgment, in the second year
of king E. 3. by an order in parliament made
upon a petition there exhibited against this
grant, brought a scire facias out of the Chan-
cery returnable in the Kings-bench, to question
again the lawfulness of the patent. And in
that suit the cause was notably debated, and
those reasons much insisted upon that have
been enforced in this case; as that of the
kings power in the custody of the ports. But
the matter so depending in the ordinary court
of justice, a writ came out of the parliament,
and did adjourn it thither again, where it gave
occasion of a good law to be made to prevent
the like grants, and to make them void notwith-
standing any judgment given upon them, and
to make such judgments also void. The statute
is 9 E. 3. c. 1. And in the parliament rolls,
2 H. 4. num. 109. we finde a notable record,
which gives warrant for the proceeding in par-
liament in this manner as hath been in this
case, notwithstanding the judgment in the
Exchequer, and declares to the kingdom, that,
notwithstanding the great wonder made by
some men, nothing hath been done m this bu-
siness by those that serve in the parliament,
but in imitation of their worthy predecessors
in the like case. In the second year of II. 4.
the commons shew that in the time of It. 9.
by the means of John Waltham, bishop of Salis-
bury, treasurer of England, wrongfully, without
authority of parliament, and by reason of a
judgment given in the Exchequer, 16 and 17
R. 2. by the barons there, against certain mer-
chants of Bristol, and other places, passage had
been taken for wines otherwise then in ancient
times had been, and therefore they prayed,
they might pay iheir prise wines in the manner
they had used to pay, notwithstanding any
judgment given in the Exchequer, or other
ordinance made by the said treasurer, contrary
to the antient usage ; which petition the king
granted, aud the judgment thereupon became
void, and the prisage wine hath been paid con-
trary to the judgment ever since.

In 1 El. Dier. 1G£, upon the complaint,
made by the merchants, of the impositions set
upon cloth by queen Mary, by her absolute
power, without assent of parliament; the cause
was thought too weighty to be decided in any
one court ; but, as it appeareth in the book, it
was referred to all the judges of England, who
divers times had conference about it. So it
may well be, there is nothing against it in our
yearbooks, for there is nothing of it.

Another objection was this, which was made
in the last argument, viz. that custom is origi-
nally due by the common law of England ; il
can then have no other ground or cause, but
meerly by the kings royal prerogative, at a

499] STATE TRIALS, 4 James L 1606.— <m an Information in the Exchequer. [490

right and duty originally belooging to bis crown :
which if it be, it must necessarily follow he may
impose, for that is but the exercising of that
fight. To prove this was alleadged the case
30 Elix. 3. 13. by which cast it nppeareth, that
king John had a custom of 8d. on a tan of
wine in the port of Southampton, but the book
doth not tell you that the king had it hy prero-
gative, and he might have it as well otherwise ;
as by prescription, or convention, which shall
rather be intended, by reason of the certainty
of the sum paied; for if it were by prerogative,
be might take sometimes more, sometimes less
at his will, the right being indefinite, and the
quantity limited only by his own discretion. A
common person may have such a custom cer-
tain, as 18 £1. Dier. 359. Hie mayor of Lon-
don hath the twentieth part of salt brought into
the city by aliens, which is a great imposition,
bat is good by prescription originally, and hath
received greater strength since, by acts of parlia-
ment made for the confirmation of the liberties
and customs of the city of London. So it ap-
peared) that John of Britain had custom of the
ships that arrived at his port of Little Yar-
mouth, worth 20/. per annum. And these in-
stances do infer, that a custom may be other-
wise then by prerogative, and therefore it is no
good argument to conclude, * the king had such

* a custom, therefore he had it by prerogative/

The book in SO H. 8. Dier. 43. was much
pressed on this point, which saith that custom
belonged to the Icing at common law, and doth
instance in wooll, woollfells, and leather, begun
at the common law, but abridged by the statute
of 14 E.3. cap. 21. stat. 1. But this appear-
ed) to be a great error, and mistaking in the
book; for we do finde, that that custom of
woolls, woollfells, and leather, was begun by a
grant in parliament, as appeareth in statute
15 E. 1. cap. 7. The words be, ' granted

• to us by the commonalty aforesaid ;' nnd the
hat mention before was that the king had
granted to the bishops, earls, barons, and all
the commonality of the land, &c. Novemb.
3 Ed. 1. The king recited in his letters pa-
tents, that ' prelati, magnates, ac tota commu-
'aitas raercntorurn regni/ granted this new
cottom. And so the ground and motive of that
opinion being false, all grounded upon that
Host needs be erroneous. — It was objected,
that the Wins; holde th at this day the encrease
of 4 4. iii the pound, over due custom, paid hy
merchants aliens according to the purport of
theChartu Mercatoria 31 Kd. 1. [Rot. Char,
■am. 4*. in Turn ] by nicer right of preroga-
tive at the common law ; for by that grant of
mt merclmnts he cannot hold it, they being no
Vody politick at the tim? of the grant ; and
therefore the grunt is meerly void to binde iu
Accession; and yet the merchants aliens do
pty it at this day.'

It is agreed, that by the common law a con-
tract with a number not incorporate bindctli
sot tnccetsion. But we must take notice, that
they, by whom th.it grant was made, of the
segmentation of custom, by 34. in the pound,

and other encreases, 31 E. 1. were merchants
aliens, who by the law of merchants and na-
tions may contract to bind their successors in
matters of trafhek. For their contracts are
not ruled by the common law of the land, but
by the law of nations, et per legem mercatoriam,
■as the book case is, 3 E. 4. 10. and there was
a good consideration given them by the king
for this encrease of custome, as discharge of
prise wines for 2*. the tun, and other immuni-
ties, winch all merchants aliens hold and enjoy
at this day, by force of that contract made,
31 E. 1. for a stranger paieth now but 2*. the
tun for prisage, whereas it standeth an English-
man in much more. The rule of commutative
justice maketh the contract available to the
king against the merchants, because he parteth
with that part of his prisage to the merchant ;
and maketh it available to the merchant against
the king, because he giveth him encrease of
custom above that is due by law. But the
statute of 27 E. 3. cap. 26. heretofore cited,
doth make this point clear without scrapie,
which confirmeth the charter of 31 E. 1. en-
tirely ; and by that the encrease of custom by
3 d. in the pound, which is by name mentioned
in the statute, is now due by act of parliament.
If you will have the king hold this encrease
of custom by prerogative, you go directly against
his meaning ; for it appeareth by that which
presently followed this grant, that the king took
this encrease of custom by way of contract
onely, and not by way of prerogative; for the
same year following he directeth his writs to
the ofheers of his ports, reciting the contract
made with the aliens by Charta Mercatoria;
adding further, that some denizens were willing
to pay the like custom, upon the same immu-
nities to them to be granted, and doth assign
his officers to gather it, but with this clause,
' si gra ranter et absque coeitione solvere vo-

* luerinl, ita quod aliquera tnetcutorcm de regno
' et potrstatc uostru ad pra>staii<>nes et custu-

* mas hujusinodi invite faohendas nulla ten us
' distringntis.' Nothing ran more plainly ex-
press, that the kings intention was not to de-
mand this by way of prerogative, but by force of
the contract. If there were such a prerogative in
the crown, as of right to have custom, how com-
cth it to pass this prerogative never yet had fruit
or effect ? For this I can maintain, that the
king of England hath not 1 d. custom of impo-
sition upon merchandizes elder then the 4th
yeaf of queen Mary, that he holdeth not by act
of parliament, and by the peoples grant. The
eldest, that he hath, is that of woolls, woollfells,
and leather, and that is by art of parliament,
as appeareth in the statute 'Zb E. 1. cap. 7. the
tonnage and pound age by parliament in the
first year of every kinus riign, and the aliens
encrease of custom by parliament 27 E. 3.
cap. 26. Then this prerogative hath been
much neglected, that it was never called on to
he put in execution, untill now of late years.

Concerning the btatuusuiade for restraining
our kings from the exercise of this pretended
prerogative, which is the third matter I stand

49 I ] STATE TRIALS, 4 James I. 1 60G.— The great Cate qf Impositions, [402

upon; those that have maintained the kings , which cannot ~W a custom; and therefore it
prerogative in this point, have endeavoured to I cannot be an in. portion ; lor (hat ari»etti
interpret those statutes to extend oncly to re- meerly out of the will and po.ter of me iinpo&er,

strain him from imposing upon wooll, wooll-
ftlls, and leather, which are staple commodities.
And the reason they give for this restraint,
more then for othtr goods, is, because the king
bystatote is restrained to n custom certain for
those commodities, as the hall market sack of
wooll, and half a mark 300 woollfells, and 13*.
and 4rf. a ht*t of leather; and therefore great
reason he should not exceed this custom in
these commodities.

This objection reoeiveth many answers.
First, it appeureih both bv the express letter of
divers of the laws mode in this point, by the
occasion that induced the making of the laws,
ond by the execution of them, thut all other
wares and merchandises, as well as those of
the staple, were within tlte purpose and intent
of those laws. Secondly, the reason a Hedged,
why there should be restraint for the st.iplc
commodities, ra;her then for the other, is mis-
taken ■; for the lords and commons did grant to
K. 1. by act of parlianw nt the custom of the
Laif mark for wooll, woollfells uud leather,
which was matter of tuetr grace and liberality,
and includcth no restraint in it, but rather a
fuiourable extention, quite contrary to the
sence of ti.e objection, according to tint rule of
interpretation, grutitsa awj liuri dtcct, ouiosa
rtstringi. And admit some laws be made ex-
pressly to restrain impositions upon wooll,
M'ooll-feili ami leather, by reason that the oc-
casion of making such iaws was the actual im-
posing upon those goods at tint time, shall we
not by good construction, secundum jnentem r.x-
tens'Vttm le^it, extend this law to other wares
end me n haudizes that are within the same
mischit f? If we look to the reason of the law,
we shall make no doubt of it: lor that is, be-
cause the impositions were without assent of
parliament, not because they were upon such
and such commodities. Besides, those laws so
made are declarutivtc juris untiqui, non iutnt-
ductiva novi.

In the enumeration of those statutes which
I conceive make directly to this purpose, I will
endeavour rather to answer the objections made
against them, then to enforce the sense and
meaning of them, which is very plain aiuj open,
and needs no interpretation. The first statute
enforced is Man. I hart*, cap. 30, made in the
ninth year of II. 3. by which it is enacted, that
ail mtrchants A\\\\\ have free egress and regies*
out of and into this realm, with their goods and
merchandizes, to buy and sell, * sine omnibus
4 malis toinetis per untiquas et rectus ronsuctu-
' dines.' In which words we may infer, that
both the use and ri^ht of imposing are abso-
lutely excluded, and debarred : for consuetude,
whicu jo tiiis case is to l>e taken for u^igc,
widen is tints, (not improperly lor fwitorium, a
duty paid in money, us ojr English word cuv
toin in one sence doth si^nilie; implieth a be-
ginning and continuance by content and will
•f the parties, not by power and enforcement,

and is against the wilt of liiiu upon whosf goods
it is set. Hut lake cunsuetudo either tor mo*
or fivrtoriuHi, the epiihites with which it is
qualified, un/ifuum and rut urn, do describe it
to be of that nature that it cannot be an un-
position. For diitiquumy in legal construction,
is that which is timeout or mind, tuat is not an
imposition ; for then by continuance of time it
should i;row a right by prescription, and were
justifiable. Rec/um implieth u limited riejir,
which uifericth theie may be a wioug, and ei-
c^eding of th it nphr, which is not in imposi-
tions ; tor it tuere be a rijj lit in the king to im-
pose, the quantity, time, and other circum-
stances are in his discretion; the right it
illimited. And if he Jet on never so great an
imposition, t lie re is as much ri»itt in n, as if it
be never so sihall. The excess muketh it a
burthen, hut r.ot a wrong.

We nnv further obt>« rve, (hat, in the stttute,
milium tolnrtiiin, which is evill toll, is st-td mil
by way of ;»mit.;csis to ant'niua% and reclu con-
suttudo; by which is interred, iiiut exactions
upon wars and imrci.andj/es not qualified with
these two proper: ic* ol uutiuuutu and vtitum9
are evill and unjust. This is made mure evi-
dent by a recoid in the Tower of 16 II. 3.
which '.v,;s a mundat seat by the Ling to the
customers of his port* for the execution of ttiis
law made in 9 II. 3. w her. by it is commanded,
' quod omnibus mcrcu'oribus in porluui *Uuui

* \\ nicntihus cum \iuis, et aliis merchundizis,
' scire faciant, qaod salvo et secure in terrain

* Anglia» veuimit cum vinis %L merchandize
' suis, luciendo hide rectus et dubitns c usuc-
' tudiues, nee sibi timeant de nmlis toinetis,
' qua' lis faci it rex, \el in terra soil fieri per-
1 mittat.' By this record the won! cotuuetudo
is interpreted' to be mna, not part or mm ; other-
wise it should have been . wive nJo cuttaurt udtucL,
not J'.tciendo. AL>o these words antiquum ct
rectum in the statute in this writ are rectum et
dtbit urn, which doth more enforce a certainty
of l iuli i. and duty, which by no means can be
intended in impositions. — Objections against
ttiis law were made in the last argument. First,
that it was made for aliens. '1 his is true; the
words of the hw do plainly shew it was made
for alien*. Hut if the state was so careful to
proline lor them, shall we not judge, that with
denizens it was so already? And that this sta-
tute was made to extend that liberty by act of
parliament to aliens, which denizens nsid by
the common law, succeeding times did so con-
ceive of it, n« appcareth by the statute of *2 E.
3. cap. 9. The words are, thut all merchants
stranger'* and princes may £0 and come with
their merchandizes in Falkland after the tenor
of the Great Charter, and that writs be there-
upon sent to all the shenrls in England, and to
mayors and baylitfs of good towns, where need
shall require.

A second objection was made in the lost
argument, out of these words of the statute of

4tf3] CTATE TRIAIJS, 4 James I. lflOO.— on an fyormalirm in the Exckqttn. [VH

Magna Charta, that merchants might freely
trathque, ' nisi publice amea pi-oliibiti meruit-.*
by which wns enforced, that the kins; had
power to rt-str;iiii and prohibit tmli-que; Uicre-
fure to iinpn.-v. — It is agreed there may be a
public restraint of tialliquc, upon respects cif
theconinio i p#od of the kingdom; b«it whether
that which is called nub/ ca prohib'dio in the
itatute, he intended by the kin- alone, or bv
act of parliament, is a question : for *uch re-
itrainls hive still been by parliament. Hut
admit the ki.;g may make a rotruiut of traf-
fique in part fur some public rc.-ped of the
couimonwcdth, he doth lhi« in point of pro-
tection, as trusted by the commonwealth to do
that which is for the public good of the king-
dom ; biit if he use this trust to make a gain
md benefit hy imposing, that is a breach of the
trust, and a sale or government and protection.
But more of this -hall be hereafter »pnkcn in
the aiisv -ei inn of the m::in objections.

The ncct law in that not ible Riatme of E. 1.
[cap. 7. J in the tf.5th year of his reign, made
upon tl.e vt iv point in question. The words
are thi«e. • And hTnMiiurh a* the most part
•of the cr. mm finally of thin realm find them-
4 Hives -ore urie\td with the male toll of wool!?,
'that is, lo wit, a toll of forty shilling for
'every sack of wooll, and have petitioned t'» r.s
1 for to release the mihic ; we at their request
1 liave clearly released it, and have granted fur
'as and our heirs, that we >hall not take such
'things without their common consent and
'^ood will, saving to us and our heirs the (us-
1 tonii of words, skin*., and lcatht r, granted bc-
*fiire hv the commonalty nfnresiid.' — Aji:uii*.t i

■ • • 1

the application of this law to the question i.ow ;
in li?md(m*iiiy objections were made; M»i::e out [
of matter precedent to the law, some out of I
(lie law r-L-lf, some out of matter sr.bscquiiit |
and following after the law. j

For maltei preo dent, it w^ objected our I
of Thomas Waltiiigham, an historiographer of ■
pod credit, [fo. 71, Tl, 73. edit, per \V. l.'ninb. j
anprw. i'ruiicof. lonij.] that wr.t of thai, time
«hfn the "Eitiitp w,^ in: do, that in the petition
•f srnevaiiccs Liven to l.iuj» I*'. 1. bv the ii'-o-
pie in the ?3th (it Ins re;un, upon which \t - \
liti'in rlie •'tarule w.e» made, lb;:* th"V form!
thems-h'e* Hot griewd, in point of rij.dif, bit in
po:nt of fxct.??-. Ttie uouls an-, * commuuit'it |
1 MiM *p ziMiatnm de M-etigali J.iiiarniii. quod I
'nitul* e*t oneroyu'M, \\/. de qu-ilhVt •* iccu-U)* '
'it ('e l:i::a fr.ica *• picui marram. * Si they
upres* il.e Ciiii-c nt tin ir urirf, tlr.t it \vn< too |
heavy; vihxii i- lo be applied to the point of
tt<: r*. not ufri&l.r. !

T't'iis I jiiisi*it. that if tin1 words had been, !
'oui:i e-t nimi-i onerovim,' this con- 'met ion !
nu:l;t I.hvc been made out of them ; In cmiim* '
tile mml tjit ft ii.f! induced a declurati m of tli- ,
ej»5c nf H:i' whicli was formerly nthnned: but .
ll/» v «r.|- are, • quod iiinii<t oncroMim,' whirh
dvth -inly pn»iti^ely affirm, that the imposition '
kj'xlu nu^iiit ileiabie for the grcttiii *«s ol it,
■liirh d it!i not ihendore aihnit, that it U t(*- ■
krAila in Anpcc: of the ri^ht the kin^ had to

impose. But this is made clear by the general
word precedent in tbe preamble ol the petition,
which doth evidently inler, they grounded their
complaint upon point of ri^ht, not upon point
of excels. 1 he words are these, ' lota terras
' cominunitassennt r,u value j;ravaram, quiauon

* trae.taiitur MK-aadum Uzis et eoiibUi'ludines
' terr.e, >e'.uiidum qu.ii lr.:ctari anUce-s-irts sui

* solebant iiabeie, j>cd volimturie exchiduntur*
After which preamble, uuioimj the particulars,
this of fj rty hhdhn^s upon a s:u-k of w o>'li is rank-
ed, hut \\Jlli a dependency of th. t expressed in
the preamble f«>rihc point of lii'it. IJut seeing
we li:J»t upon history, whi h th>u«:h it be of
S'lial! anthoiity in a law aririunv-ut, yet being the
hittory of our ownrc<dm, hath tit a:;d proper use
in the common councilor the realm, I will pursue
it a little further, out ol Mallh. Westm. a writer
that lived much ncarv rthe time of the law made,
then Thomas WaUinghnni. He snilh, [fo. 4S0.
edir. per II. Suvilemil. Fniiicofurti 1601.] that
ti.ccommmis by their pi titionsrerjuired * ne rex
' de ca*tcro tallagia u>nrparet, et voluntarias

* super his indurta* exactiones dc ca?tiTo quasi
' in irritum revocairt/ by which it appeal eth,
that thepcint of the complaint was that the ex-
action? laid on them were voluntary, that is, at
the kin*;* will without assent of parliament.

(Jut of the law it s>elf it hath much been
pressed, as first the commons made petition to
the king; wheieupon they infer out of the na-
ture of the word petition, that their proceeding
was by way of grievance, for the txce-sand in-
con ven it nee, as a matter of grace, not in course
of justice for the wroii!». — To this I answer,
that consilient)!; the quality of the parties to
ti;i~- action, it hciu<; between I lie kimj and the
subject, duty and u >od mauuers doth induce
t>cr.llencs* and humility of tcims, without ble-
mish or diminution of the force of right. Jt
is accord ins to the demeanor of Job, ix. lf».

* though 1 v.eii.1 jn^t, yet would 1 not answer,
1 but I would make application to my judge.'
liot in rjiir lorm* i-f l.iw, be the ri«:ht of the
%i(h;ect never mo clear, iu:uii'f.sr, ami acknow-
ledged bv :.'l; vpt if hs own be detained fiom
him by t!.e km*:, he halh no oii:» r writ or ac
lii.'ii to recover, 1:.L a nicer pi tn 'am sitpi'licitt
ct'hituMni* &mc. >o as if the wmd petition to
the kir.i: infer def"ct ffii«:ht in ih^ petitioner,
thcTi»c;'ii be no case where the kin.* can do the
subject, wrm l*.

A second objection nut of the body of the
1 iw is, tint the kip.i» d'-th n lesi^e that imposi-
tion of forty J-hillio1.'*, whicli impheth a ri^ht
>et!ed in I- ma. — lim t<i th:^ I aiiMter, that it is
no necrtihry inference-, where^ic^er a release
of ritht is; for it i* u*« J for claim owlv, or
where pri»si-^ion w:i», though wrongful, and
tlv.it 4 in majorem se<'Uiitaten, quit abundaus

* ciuti hi uon not rt.' J!;it in this c.i^v, an-
lease was veiy experliem, and for some respect
ni'Cc-v.irv, to extineuioh a liizht t>.o 1. i'lt* had in
thit iiiiposiiioa ac;ain.st the men. ban M thom-
wdvei. I'or ti.i> impu^itiun, thoiM'lj it were
not set on bv assent of parliament, yet wns :t
not set on by the kings absolute power; hat

49 j] STATE TRIALS, 4 Jambs I. 1606.— The great Case of Impositions, [496

was granted to him by the merchants themselves,
who were to be charged with it. So the grie-
vance was the violation of the right of the peo-
ple, insetting it on without their assent in par-
liament, not the damage that grew by it ; for
that did onely touch the merchants, who could
not justly complain thereof, because it was
their own act and grant. This appeareth by
two notable records, the one 22 £. 1. [Origin,
iu Scac. Rem. Thcs.1 a writ to the treasurer
and barons of the Exclieqner in Ireland, to dis-
charge the merchants there of impositions on
woolls; in which the king recitetb,' licet in sub-
4 sidium guerre regis pi$recuperanda terra Vas-

* copia mercatores gfatanter concesserunt per
' biennium vel triennium, si tantum duravit
' guerra, de sacco lans, &c.' The other re-
cord is the writ of publication, that in 26 E.
1. [Mem. Scac. Rem. Thes.] went out after
the statute of 25, in which writ the king re-
citetb thus, * cum nos ad instantium corarau-

* nitatis regni nostri remiserimus custumam 40s.
' nobis nuper in subsidium guerrae nostra? contra
' regent Franciue concessum, &c/

A third objection made out of the body of
the statute, by those which have argued on the
contrary part, was upon these words, that the
king would take no such things without com-
mon consent ; by which words they conceived
the intention of the law was limited precisely
to impositions set upon wooll, and not on other
commodities, which are not such tilings, but
other: and for this they alledge this reason,
that it was not probable, when the complaint
was only for an imposition on wool), that the
kins would give a remedy for other things not
spoken of, for which there was no cause of com-
plaint.— To this a full answer is given many
ways. First, out of the saving in the act, which
extends to other things then to wopll, as to
wooll-fells and leather ; therefore the purview
of the act by these words, * such things,' ex-
tendeth to more then the wooll ; for there needs
no saving, but for that which is contained in
the purview. Secondly, the reason a II edged,
that no more hv likelihood should be remedied
but for wooll, because onely that was com-
plained of, in false: for the complaint of the
commons was not onely for this imposition on
wooll, hut divers other buithens and grievances
of the like nature. And this will appear if we
ron i pa re all the parts of the law, the one with
the other; for this law is in the form of a charter
w ritten in French, anil beginueth, ' Edward by
the izrace of God, &c.' and is an entire grant,
and instrument without fraction*, sections, and
chapters, us it is now printed, mid contained in
it, next before this last chtti*e concerning the
impositions on woolls, which iu the printed
book is cap. 6. that the king, for no business
from thenceforth, will take no manner of aids,
iiiise> nor prises, but by cooi'iion unseat. This
word mist*, in French -ijjuitieth properly im-
positions, derived of the word mitto in fatine
tit put. So the word ' Hich things/ is a con-
clusion to nil the premises, and hath relation
not ••ncly to that which i* nmde w ip. 7. by the

printer, and concerneth the male toll of woolls,
but to that precedent, which is all other aids
impositions and takings. The writ of publica-
tion of this statute sent out to all part* in 26
E. 1. [Mem. Scac. Rem. Thes.] inakeih plain
this construction. The words of it are, * con*
' cedentes quod custumam illam vel aliam, tine
' voluntate vel communi asseusu non capia-
1 mus.' These words, ' vel aliam/ are indefinite,
and extend to any other whatsoever, besides
that of woolls. The writ doth further discharge
merchants for the commodities of wooll-feJls
and leather, which are not complained of by
name in the statute; and therefore the law was
intended to other impositions as well as to
those upon woolls. — The objection made out
of matter subsequent to the statute was this,
that notwithstanding this law of 25 E. 1. im-
positions, that before the statute had been set
on other merchandize then woolls, were still
answered after the statute; and for instance of
this was alledged, that whereas 16 E. 1. [Orig.
H. Thes.] an imposition of 40*. the tun was set
upon wines brought into the kingdom, an ao-
compt was made of this in the Exchequer in
26 E 1. as by the records there appeareth; by
which it seemeth that the law of 25 E. 1. was
not taken to extend to wines, and such other
commodities, other then woolls named in the
statute. It is true, such an imposition was set
on by E. 1. in the sixteenth year of his reign,
and an accompt made for it 25. and 26. Bi*t
it appeareth by the record [T. Mich. It. Thes.}
of the accompt, that it was made for the time
ended before the statute made : as from the
eighteenth of May, 16 E. 1. to 23 Jul. 22 E.
1. But there is no record, that ever any ac-
compt was made for any money received for
that imposition for the time after the statute
made ; neither was it very willingly answered
before; for it appeareth by the record that it
was ten years after the setting of it.

The third statute alledged, on die behalf of
the subject, is that 34 E. 1. c. 1. the words are
these. * No tallage or aid shall be taken or
' levied by us, or our heirs in our realm, with-
' out the good will and assent of our arch-bishops,
4 bishops, earls, barons, knights, burgesses, and
' other freemen of the land.' Against this was
objected, that this statute wus intended onely
upon the taxes and impositions of things. The
word auxilium makes it clear, that it is to be
intended further then of things within the
realm : for tallagium is commonly intended of
domestical taxes, but auxilium is the most
usual term for impositions upon goods import-
ed mid exported; as l>y the acts of parliament
by which such imposition* are given to the king,
in whirh they are called most commonly by
the name of aids, as proceeding of good will
and benevolence.

The fourth statute alledged on this part it
that of 5 E. 2. c. 14. just in point of the matter
in question ; and therefore I will set it down
as 1 finde it verbatim iu the record in the
Towtr. * Easement novelle9 customes tone
' lcvici, ct iiutieius euhuunces, come stir levi

-cum Jtr/fc

« »»er 'ii.

• pBnjuoj In M pltlit iiilc-

* tWWI, M ;;

' te(I*, ci h -

dcmivrr li'di

ii= m tufayeat estre, nl datum ig* rli rt>j,

r mm people, Notu

tj drmnli tull-, leeiet pules de cnrone-
ltd* my Henry, joycnt cn-

■

■ Sartre qoe ie

ll : US, |illl I eo

> rail centre le grand chartre i-t m-

.!,■ I.inrli-i ,, <(

•tut lie linrimi»(| i^r.-. Saram Deque
1 roy Ie em to me Ac leyno*, penlx, ct

■ i lesdoct.'

[I I. thai l,v (lie levying of

rniea, and by Hie i !■!!■; i>1" Mil, n ■:'-
. - made dear;

a Irrreoe .

d Chnrtn Men ll

.[I .111 ■: ,

1
'' ' :5 luiTl, .

.

ten r let
tore been raise-! i

i -c,and lliree
i led agMinst it.
. thai ii i* no I;.-

c king by lemeofthe nihility ihat were
. ;!.. n ... i-

■

iiiiiiM. u in

.1.1-1 I

krag

should hm

■

k* statute •mmarja heth

king and peo|

■ ii ■ i'j jetde
Itr, i. "ii. : ■ ■
lili : the king and h»

Mm I, when ihrt hu«i-
Alld ll will lir«i,ll mid
ity nnd'.'er< i

. :

hi the Erchequtr, [498

made, to ilie honor of OoJ, 'lip honor mnl pltM
fit of holy church, tlit honor tit himself, the pro-
i iiu people, according CO rigtt And
iruy-ii, and the until he i,
Tlietejoymng with other* ofdnteMt conunnni
iu pur I mm i' in, Hid taking every ol I
lentil Dtrfh fur ili'ir -iin i ii; 'i< ii.. ..iifjr iiuhe bu-

rinew, did unite [lin inn) other ■

which were so well liLeil ol Kj the king, ilmt,

alter they were iniule. he ti

wrve them, iirn.l earned them to be published in

Paul's church yard by ihc bishop nl Saluthury,
by denouncing CM-oniuumii .iinm

■ rally infringe tl.cni ; mid by liii

:■ [I'.'iiiic. :: K:ii. it. i s E 8, Rot.
Ord. Pat. j. Oct. a K. 9, Km. Ord

■ '-in, did tend ilirm Ihroiigh the

reiilm In lit |.ni.l,,li- <j, ii ii. I 1 1 j . 1 1 1 I !k i c. I -,i|mi.
br ..Wrreil, it....:1l>i -ijoiilyiiit; hi ■ ■ ■
and npprohiitinn ot then; aAo .

::in'n ui>Li>
.:iliul!it:it, Ml I lie (ill!)

reum.

, n'lj.-riiiiu, which i- the imjiisrnrss

i "ii points; the taking

; '.i Mertiitoriii, mid the iluubtin^

..Li to t!i.' e-tiiiii ofwooVteltl l"i(f

. i deny ii t»

In- unjust, but inbr accordincto 1 1" :

land, md liberty of the ;.

ter did coiitniu in it dfren grnDtc of tliingl
«liicli nire not i" il"1 powet of the king lo
Meht of pariitment . I

prr mrJirtuicm liltgnt. and otliei [hi
to the utti ration Of tM law, utt '• ■

■ .-;v Mint cliiirter iii-vfr
had bli rmdodfeted and tettted forw, until it
mis confirmed by net nt' parliament, but lay
it-lrep ahnont tO ma together, without beirrg

in.l 87 F„ 3.

"iitirmrd. For the dooht thai il

■ ■ made in the stotute of the tings

itglil In tl.'t I'lisluiii df wuiill, inn. II .

tber, 1 fake it, tfcen !■ ubt made :

tiii- the niirds. ' nyiag the kings i

.' I me lln>
fon,liuttioll, that is, lit surl, um« ftl I i Ouglw

■
Of t/iiiiNtt'i, tiir it hnil been n folly hi Knee mttde
ial, of the right wliereuf they had

ttu J Vlilllll

drive taten it sen Inn rut.

But there rral M Gotbnt to doDbt of the right

Ol It i I.. I 11 >v;.l. uiifll !>y Ii I -I ol ,1:1.11:1111, III, 1111 J

i.l iii ii.tr. ' without challenge or et-

' . 1 11- to the lu'-iiiiiirM of it,

The lliu.l 1 I , -t.h nne is re-

!eali-d. To (Iii' I jilt- iri. nuilun' T'llel rtcontam.
set of piriia-

■. HI. ll-rl.Iil

. . ■ ■ '

, ■ im.and .ti-
■

ci of paS

kniiS

. , 1

■
eotleiivured to siippirt* them;

4M] STATE TRIALS, 4 James 1. 1 606— The great Cue qf Impositions,. [*00

tut they did never yet obtain a repeal of them
by act of parliament.

But it is further urged, that although there
were no formal repeal of the law, yet it was
never put in execution as a law, but even pre-
sently upon the making was rejected, and use
and practice went quite against it : and for in-
stance hereof, a record was vouched, that E. 2.
held himself so little bound by it, as that in the
1 1th year of his reign he set an imposition with-
out assent of parliament upon wool I, wooll-fells,
leather, wines, cloth, aver de pois, and divers
other kind of merchandizes. To this I answer,
that if it were true, that a weak and impotent
king, as he was, did contrary to the law, doth
tins make the law void, and no law ? but if we
look into the whole record, and scan this action
of E. 2. from the beginning of it unto the end,
we shall finde it a very good instance to prove
the practice and execution both of this law of
5 E. 2. and of that in 25 E. 1. For it is true,
that E. 2. in the lltli year of his reign did bor-
row of the merchants a certain sum of money,
above the due custom o£ woolls, wooll-fells,
wine, aver de pois, leather, and such other goods
imported and exported. But it appeareth by
the record, [Rot. Claus. 11 E. 2.1 he took it but
for one year ; he took it by the advice and
counsel of the merchants ; and he took it per
vium i/iutui, as a loan. The direction of the
writ is, ' collectoribus mutui nobis per merca-
4 tores alienigenas et indigenas de certis rebus
' et merchandisis usque ad certum tern pus fa-
' ciendi.' This was done in good terms, he did
not claim it as his right, but did borrow it,
which I do think is a good evidence against his
right. But what became of this? the state
would not abide it, for all these fair shews. And
therefore afterwards the king sendeth out other
writs, by which he dischargeth all merchandizes
of this loan, saving only wooli, wooll-fells and
leather; and for the loan taken upon those
commodities, it was limited to continue but
until Michaelmas after, and good security was
given to the merchants by the customers to pay
themselves, by way of defalcation, out of the
customs which should be due after Michaelmas,
those sums which were so borrowed of them.
The words of the record are worth the observ-
ing, * cum pro expeditione gutrns Scotia?, et
4 aliis acduis et urgentibus necessitate bus nobis
* multipliciter incumbentibus, pro qaarum exo-
4 nerntione quasi infinitam pecuniam refundere
4 oportebit, pecunia plurimum indigeamus in
4 prxsenti, et nuper pro eo quod exit us regui et
4 terrartim nostrarum, simul cum pecunia nobis
4 in subventi ne pnemi&orum tain per clcrum
4 quam communitatem regni nostri concessa, ad
4 sumptuk predictos cum icstinatione qua expe-
' diret faciendos, nou sulticiunt ; exquireutes
4 vias et mudos, quibus possemus pecuniam ha-
4 bere commodius et decentius pro pnemissis, de
4 consilio et advisamento quorundam mercato-
4 rum tarn alienigenarum quam indigenarum
' viam invenimus lnfrascript. vis.' and so settetb
down the manner of the loan, and the security
for the paymeut of it. This, I take it, was nei-

ther an imposition, nor a wrong in any respects
Also by tl»e first record it appeareth, that the
loan set on wines, aver de pou, and such other
commodities, besides wooll, wooll-fells and lea-
ther, were presently discharged by E. 2. which
sheweth they weie taken to be within the intent
of the statute of 25 E. 1.

The fifth statute all edged on the behalf of
the subject is that of 11 E. 3. stat. 1. cap. 21.
by which the commons pray the king to take
no more then the old custom of the half mark.
The king prayeth aid of the commons for a time
above the custom u,pon his necessity of wars.
And the conclusion is, that by that act the king
doth grant, that after the feast of Penticost,
12 moneths following, he will take no more of
woolls, wooll-fells, and leather, but the old cus-
tom, and doth promise to charge, set, or assess
upon the custom but in manner as aforesaid.

The sixth statute is 14 E. 3. stat. 2. cap. 1.
The king doth grant by way of charier to the
prelates, earls, barons, commons, citizens, bur-
gesses, and merchants, that tiiey be not from
henceforth charged nor grieved to make any aid
or sustain charge, if it be not by the common
consent of the prelates, earls, barons, and other
great men, and commons of the realm, and that
5i parliament.

These two statutes grew upon an occasion
of an imposition set on wool by the king with-
out assent of parliament. Little hath been ob-
jected against them, but only to the first, that
it was obtained of grace, and not upon instance
of right, which they gather out of the words of
the law, which are, * the commons pray the
king that he would stablish, that from hence-
forth no more then the old custom be taken?
The like reason may be made against the king
out of the same words in the same law ; for the
king in the same act prayeth the commons to
give him an imposition upon woots for a time
above the old custom. But the record of the
petitions exhibited in parliament, on which
| these two laws are made, cleareth the objection.
The first was deltveicd by the lords in this
form, [llot. Par. 13 E. 3. num. 5.] Us grands
rulunt, that tho male toll, set on woolls, newly,
be altogether abated, and that the old custom
be held, and that they may have this in point
of charter, and by mrolment in parliament.
This word, volunt, had been too high for a suit
of grace, and therefore must be intended of
right. The commons petition [lb. num. 13.1
in form is somewhat humble, but in effect and
purpose is rough and stern. The words are
these : * the commons pray that the male toll
of woolls be taken as it was used in antieut
time, which is now enhanced without the assent
of the commons, and grandes, as we conceive;
and that if it be otherwise demanded, that
every one of the commons may arrest them
without being challenged/ According to these
petitions, the first of these two laws is by in>
rolinent in parliament; the second is in form
of a charter : the first doth express
special commodities; the second' doth
generally at alL

n] STATE TRIALS, * Jamsi I, 1606,

directly (Duelling ibis point
it 14 E. 3. stat. ". cap. !i. the king dotli

■ .

!t safely cine in!,, (he roil iii of FnuLiiid

1. their good and wfely

f, a-nd safely return, paying the subsidies,

- Timinl ttberprofiisreasaanhlydue. Upon

ords of tlm law, wh great advantage

id this, that besidei I'niKim unr] suhsidv,
b comprehend all the certain mid Ordinary
ss (be ting hath upon the wares and goods
serchant*, there arc other profit* (poken of
■ annot be tinder-
■ lions l.,\ the king wiilmul
nt of parliament.— To tbba I answer ; if
-rcre not duties due to ihe king besides
"liii-l, iiilj;!it snt jafiu the
i <ii tin ■„■ ivordt, tins objection might

: hi it; but it is plain,
n these two, there are other profits

% upon roeri I ■

vage, tonnage, and (lie like. And you shall
Ira petition m parliament, 50 E. 3. against
— me of time above the old rate.

tb law is li E. 3. star. 2. cup. 5.

it enacted, I hut every merchant

nay freely buy and tell, mid pass ilic sea with

hindnes of wool! and all other

:,:- the custom of old lime used, nc-

the statute made io the kisl pnrlia-

i-l.cnr, whub was the slat. II E. 3.

'J. Tin* law doib expressly es.-

. ,■■• lu i, | import Inns,

1 atli law it thai 18 E. 3. slat. 1. rap. S.

•i*Tl,, it neonctcd, that the sen be o| to

tt manner of merchants to pnjs 11 ith their uier-
pirns* thein.

... iiUII ','- r;,|i, ■!. fni-lho

—met -.I' i mid ,i!i::.

.'null l"|- inn nil, I Ins

sen, that nothing lb;dl lie Inken nver the due

esMoeas, nut taken of llieni tu his use by colour

•f twt, hi in r ilieir wills.

1 I E, 3. una. «, that nil mnii-

..- may Imv
m& v'l "I manner of inerchnndizes, nod freely

■■■ ml; tin- cus-
Ma»a«daalitidiMtbct(»fdiit'.

ivln.h it iv.t.
' uuld be set up In ports,
it) Mild very duty of every

ring, tall, nnd duty, or su I' n r, Io he

4tn»'»'->i nuil ii quired of wares mill nierchan-

■ ■■ I !"■ '1'-

■ iiui until nit be exacted
. been used anil

liniu "hi 'hie upon n.irts

-. Iili'll I'UpO-

■tDaaare rsriu Ird, nliute <|i ■■> I .

being sal ,,ii hi pri -i nr

"" ns the »dl of the king

—on an Information in ihc Eictiequer. [502
These are the laws, which I conceive most
directly tend to the restraining the kings of
Bogttnd from the exercise of tlmt irregular
power of imposing, at the first offered by Diam
tube put in execution, yet not pressed ni their
riant) nnd never practised hut upon opposition
nf the whole suite, and at lust deserted nnd

given (ivin 'until of late; as by that which fob

loweth in the fourth place will appear.

Mv fourth und lust nssertion i», Una this
practice of imposing without assent of parlia-
ment is rniifrn uiiircui ninjornm. In this I tsill
make an historical pert us (ration of the tunes
past, whereby I will discover and stake known,
what passages have been io this business in
this Liu'doui, and especially in the high court
of parliament for the space of 300 years and

more but past, since the beguimne of the reign

of E. 1. si thence which tune, and not before,
this kingdom hath grown into the glory and
reputation of farraigne trarfiqoe. And as a
wuithj gentleman of the kings learned coiincel
made certain considerations upon this question,

Nil! I !'-i,| »(i-en»iln!iied out of the greatness

of hn wit and reason ; so I grounding myself
upon the practice of former limes, which is llie
safest role whereby to square the riglil !«iih of
t: inii and people in this cum nion wealth, where
their right is jut eoiuur.tudiiianuni, a right
that grow t tb by use and practice, I will pro-
po-e uniu yuu i.eitiiinn olncrvaijoiii out of the
action nnd enptrieuce of firmer limes mitill the
rnigons of the two hue queens ; by which you
may the belter giound and frame your judge-
ments in the deieriiiliniliiiii of the right in this

1. My first observation is in prjint of iiicuni-
it'ince, that tbeie never was any impositiotl
»ft, hiiL iii time ofacLuall war, and duplicalii
vail/ii : l bey were set un very ruielv tmd
spuniiglv, Inn for a short lime, and I bat rer-
taiut and definite, and upon some li'"' corimn.-
ilnn -., and that by the assent of (he lueichauti
Ixnrethe bunhm. In unr lima
the occasion not so sensible, the continuance lu
he perpvtiiiil, toe number imnv bnndrcds,
iihn.i-t un Linde of roiniuudity spared. I will
t;iie you some few instances of these circum-
stances out of the records themselfca.

The maletolt of wool!, jet on lij E.l, which
IBM tl"' OCCaOHI of the Hat. SJ yeare of his
nigne, was given by nicrchunis. TtW record

• Mihtidiuin guetne resjii,1 It ftmher sheweth,

it was for his necessity of wani-, wl
ivj] gnat also.

For the lime of E. 3 there ueed not many
instances i for his whole rnignc was aim ,-l M
actuall wurfii'e. As in ibe Otli year of Ins
raignc for bii war m Scoilan-J ami In l.nnl, in
tile 13th year of hisraignc for his war in Frame,
severed! impositions were set on. — In the 17th
year of E. 3, the record in the Tower Snttl-
tiouelb, that t0>. loipusitum win upuii a lacka
Of ivootl liy Ibe grant ol inriihaiii-,
iu the lime' of war.— In the KMh year ol E, 9,
it .ip[ieareth in the record, that Hm:

50 J] STATE TRIALS, t James I. iOOtf.— Hit £reut Ctisc qf Impotitioni, [504

then put upon woolls was by the assent of mcr- ' * qua* custom as dure conces«erint nrastatiooes
chants fur two years, for the necessity the knvj; ' ' el lusiuuias subscriptns, viz.* ana bo fcetteth
had in his passage over tin* >ea, in recover his | down the increases, ami amongst Uie rest this
right, :ni(] to defend theiealme. ! 3<A upon the pound, and so proceedeth, * ac

!i. My second ol nervation is never anv im- , ' quidam mercatores de regno nostra et notes-
p'iKiiiun was set on by the kin*: out of parlia- ' * tale nostra, ut ipsis dictis liberfcutibus et uu-
im-nr, but complaint was made of it in pnrlia- ! f inunitatihus uti et gaudeie, ct quod de prisis
men! ; and not one that ever stood after such ' nosiris quiet i esse possint, prestation es et cus-

< tuiuas liujiismodi de bonis et merchandisis
4 suis nobis solvere velint, ut accepimus, assig-
' nnviinus vos, c\C. ad cuatumas et prastationes
' predict us de mercatoribus de regno et pntes-
1 tate nostra colligcud. qui eas gratanter et
1 sine coercionc solvere vuluerint. ; iter lanitn
1 quod aliqucm mcreatorem de dicto regno et
' potentate no>tra ad pi a'staUMies et custunias
' huju^modi nobis invito solvend. nuUateuu*
* distrimiatis.* Surely it" E. 1. had claimed the

iiaviit , iiiiii ••<#b ••••«• i iiriv «_ » v ■ iiiwiiii iiuv i uUiu

complaint made, but remedy was afforded for
it ; * et wind rtx inronsidto fecit, consulto re-
' vocawr,' his sovcruifme power controlled his
subordinate. Ju which it is a thiu^ very no-
table, that the king in r.o oue case ever claimed,
or so much as ever named his right or prero-
gative, which no doubt would have been done,
i\' it had been thought due, but gate satisfac-
tion to the complaint by one of these three
uaies; — Either by discharging them quite, and
making some j»n»i<l law against them. 'Jdly,
by entreating j|.e people to hold them some
sho.t time bv their fav.mr. — 3d!v, bv waving
his present pov.i:.-»:on, and tnk'u>g that of their
gift by act ol' parliament, as an aide which he
had sit on b\ his absolute power a* an impo-
sition.

Itistancesof the first; V* K. 1. the impositions
of uuols taken oil", and a law made against it,
and the kin^ undertook fur him and his succes- !

&or.* to doe *o im lur.ic. 33 K. 3. iO. the im- ' the nrchhitknp of Canterbwie, in which let-
:osiiioii of 3.«. 1//. on a f-acke of wooli nut off I ti'is the king sccuuth to have a creat ennfi-

prerogatne of imposing, he would never have
given these cautious in the requiring of that
which he had taken to be bis due, as that they
should not exact it ui" anv of his subjects' that
\vi iv not vullini: t-i pay it, nor tiouble nor ais-
trninc them for it.

In the twelfth \eere of E. 3. we find the re-
cord [Uot. .Mem. Vi E. 3. dorm. 21. in Turr.]
of certain letters written from the king, beingk
then at Rirwick in the Scottish waires, unto

I

upon complaint : and a law made against it, ! deuce in the devotion of the archbishop, and
33 1". 3. c. i. Tin- like statute -1 j E. 3. ea. 4. '. therefore earnestly intreateth him to further
upon a complaint of an imposition on wools ' hi* enterpriser with bis prayers to (Sod, and
made m parliament, -l.'i E. 3. u. '. '. Uot. I'arl. | then a.ldeth further : * Ad hoc pater, cum po-
lustancts of the sicmd : v.'l E. 3.HU. 11. a ( * pains rcgni nj-.tri variis oiuiibu,-, tallu^iis
petition upon an imposition of ?<;. upon a • el impo.sitionibn>, hai iMiiiNprjpj:ra*etiir (quod
s.ieke of w.miI, ;*•. up.»n a tunne ef uine. and ; ' d«'!».'.:te"? v?i\ risr.tn; fc« d iievitabili ntcessitate
(i/. upon <.iir Jt /•• ■■!», all ii>chr.Ycd prcsentlv, | * Cumou'si de ii>-.ie n one.'dus ipsiun nlhuc re-
•aii»i^ the 'is. upi»n a s.ic'ao of %\oul, and for ■ * U-v.sre n«m v..!i;i.e«. d:« turn pojiulun:, ut tan-

that iutn ated that it mijit vj-,\ t i : I E'sster fol-
lowing, and so it did, and was then taken avav.
Instance of the thin!. '.V» E. :J. im. 'ii. tlu
commons made petin n a^nin-t an imposition
of 40-. up :ii a s.u-'x iif woo', ^nMitid to the kini:
by the merchants shewirg that they uiivtit iMt
to be liotiinl bv their act. 'I'he king did not

' i.y.n nece^ita:e:n n strain huuiihler el benigne
p:.:iaur ct e.irit;.ti\e oustiut-ttt, et priorcm,
r/'.nin |>cr.e> n » coiiei-pit de cettro iu>tanter
i:« orationibus il eh emoMiiU suis. (oneribus
pii;heti>. ij!'.:' iK.n e\ maltia \el pn>umpiiune
\ •.Miliaria ip*>um i» a\ant, non ob>iau(ibu<)
i\!:iheant CHritatem, mdu -i;eniiaiii munciibus

claiinc rij;ht or justice ; but because bis warier J * et aliis mod>, qnibu, sieundum Deiiui \idc-
were ureat, upon his repicst bad it granted , • biiis piis exh nia .i.mibus inducati% et uos
Unto him tor two yeeres ly act of parliament, J * penes tundem < \-. u^eiis: ^penuuus u uuquc

mod pretended no title of prerogative, neitiier
wis it ever spoken of.

3. My third observation i.«, that our kiius
Time acknowledged that it is not their riiiht.
JL i in his^ wris he sent to the officers (>f hi-
prtr- tolerie 3rf. on the pound over the old
e.*<- ■ if le of the de> «ens n* well as of the aliens
» suffer the denizens to eijoy ilm*e privi-
the aliens did enjoy hy the payment of

' p( r Di i »;rati;im, miju> n.a u> cuiii t.s ma;-
4 gentihus sola p-itla ieiis it lar^-.tlui compro-
' hatur, bcnetitisa cosh1, cii>at:v.» dictum popu-
• lum v:>it .re et ci':>i.la;i pro 1ih\» ei tempore
' oiipornn'.s.'

The priiu'i: a!i V*i\\£ I nute out of this record,
upon the utv point of this my third ob-erva-
t: r.\. i>. 'hat the km.; mte-alm^ to txcuse hiin-

e!f i*f tin hijftUiis bv I. im laid on the pen. le.
eot custonie, doth eive ths direc- \ .u d to awed tin. ben.^h >i i»:mi^ and ijis-
■T: that tiny should not take H«f!t;ee in la\ieg tl er- . n. s.i'h tin » were ir^t

-»m ^altut tlieir wdl. *I he words of t]lt

.J etpreti it very fully: • cum mercatore>

• ^lieni^cnv, pro quibuMlam hbor-

|?W not concessis e: precis nos-

"*«M|«e remissis. nobis de boms et

1 or.era rx peMiir.j'.i u* \- lunt.iri.i.* 'hat is
burthens That le j.>.::,.il t> l..\ «n at bis
owne will, win reb\ In io dim. e*b m,.p.i»-ti ns
with-n.t asscr.t »f p r .'.'i. *:. un.rh aie,
* oner* tx \ «la t :ti r<^ ^., to e.iVti.1 • f pre-
^U* <|nibuscunque infra rej;nimi | Mini). ti«-n, «l:u h d"i » 1V . -.]\ i \i ,mle ciaane of
ttoftna adducend. ultra ami- j ri^ht, aud Oprowth il>e iautuiucss of Uie act.

'.:,: ri„,

S3

STATE TRIALS, UameiI. 1

t'li-i-ouj bunion in bis people, nbich ibawath
his ohm piti •'< i hew. He tutfa farther, ' do-
' lentes. rrleiuons.' shewing his griefe and re-
morse at il ; ' et mevitnbili necessitate COm-

■ :i ."■■ 'i by, unavoidable

■hewing he was forced lo iL agaiusl
iiL.ir whii li ii i Inn Mi 'ml hreakelh
!. h r i >i rii'ih, In- would not inani-
tion by law. ■ A dlu ii n
mi iiisiuuatoti, he would ease them
ui good line. ■ Ltiiiiiin.ni eilulienii'..' ihev
ihould uliurd bun charity in tlie

i so be iii point of justice or right
■ ■

biiiop should dune linn in iiit people. By

: • .tvrls leave the point of justific*-

Lastly, he promi*eth he

i.il i ■ uiiiiri than ' beueficiis coni-

' prnsativn,' would give them recoi

■ ■I aised iii" tlieiu ; which

. .< lit claimed them not a= due, for

den I** needed uol git e i tcouipi lieu ibr tlicnj,

■ petition was etliihited in

Ftraanmit, iluL levies be not inude by cuui-

■atartu, vo i hey be in this ease, nur otlier

i' people unless they be

limited in parliament. Tlie tings answer i»,

11 uy Mich unpo-itn.ins Here nude, it was by

CI i ol' the pre-
:, nnd Kline of the i qui
lenr ; yet lie "ill Uul that mi Ii iruj
duly nuule lie ilnimiie in cmisenoi-nrr. line
ua king acknowledge! b un imposition not to
■k\ though with tlir consent of the
heir; bouse mid tome (if the i
Mac u w*i uul in lull (mi limiir mi 1 1 in-
to lie buuM have thought so, if it Ituil been
HiiiiiKl •>»"('.

ii and warlike
more beholdiot; to

u right in ilii- crowne tin u

the people, ul n parlmiui nl

i the oevruth jeete ol Ui. ruigJia Hindi a

.

• Ii u contained

: i iien I to uui

me record i\ nut in

II act downe I in

■' upon I lie parliaincbl mil,

e a paraphrase upon it. ' John

my court of tnir-
■
y 1 liuie add i

■

i ■

llwnudve*, and
wd ul' ihtl my

■
■ . tins. I ml

i, ami home ii

o my progenitors

in ifie Eicfcqncr. [3V6

* to tune of need ; edjerets I trust, that yea

' ..• L'inilliull' ii!" tin, K) Lud, Mill

■ be M tender mid kii.de unto me in = iic.h eotai

' as ben tufore tiny commons have bun in but

'of my progeiiit'iuis. And fur i lie gooiUiil,

• mi true hearti that yee have

* borne, continued, mid ibewas1 U DM at ull

* tunes heretofore, I lharike toll M beitrtily a* I
' tan. Also 1 |rul ."-'' wiS n mi nine "i time
'OMliftg; liir "ball by the (NCt nl (ind I
' shall be to you us good and gracious > king,

I rjgfrtfrTnadj upon you. as ever
' did any of my progenitors upon commons of
' tins my reahne in dayes past, and shall also
' m time of need apply my person tor the
' wenle nnd defence of you, and nl tins my
iparinc, my boily nor life lor auy
' jiupaniv : a same.'

Out of this, we nitty observe tirst the Liiu>«
proK-t-.ilioii t., live at hn uwtie, and not to
charge lus. subjects, ; by « -lui-li I gatliei lie did
nctoowledge ti certain mid distmit piuprrty 01
that wlikh was his subjects liom time wldch
was his own, which eicludeth llic- rijjlit to lai-
pn-c nt bis will; fur if Uinl lie adunlieil, lite

is bit which tin king will lenve lum ; for tluFio
is no limit or rcstraini of the i]iiHiitity, tlie
rifhl bajng 'I'lmitird, Inn iinely the kings will. —

. ihing 1 observe it this, that in
I hi wirnld cinliiie ki«-

ii ibese two bounds. The one, it
should bee in great and undent, cinses cuntero-

■ . .Jt ai r.iin. m,ii ii., detaw "i"
them and Ins reahue, th.m bis own pleasure j
wherein lie toiuleiunelh tk)M oecnsitms that
grew upon excesse of pnmte tip* wee by over

gCOU lummy, M ollierwise, .■•n'l ii-.i.i.1

Mich like pi'L.li'j,ii HUH Mll—wilH lh« wlmio
IttM, 1 bo otW hoouil in limn is dMI iIbiso
biltdilis si i. odd he ucundum inoitai i:i,i\miun, M
hrrctulore bud bean done and burue by tlie
i 'iiminnus lo hi* ancestuojs u> time of MM —
Tlie thud limn; 1 oUerve is, Ihjt he nckiuiw-
I iinbiia did paacted out of tlictr
gMuVwII and kindness, and liol out at hu
right nnd |in. i 1'iirih, that

be -iii-liil thi-y would bee as tender and kiude
to lum in suili eaten, ns herttufote uny com-
mons hud been to Ins [HiytJlilniii

■,,|.cu.e |ininn.ed 1 1 v < lie
i i:r: l i i.i, subjet is, tor their good wills and
kindness, his goodlier and pMOk bis just and
riLib'euus g. iveiiiuieni , the jto|iardy ul Ins Ixuly
nurl lite for their wenle and ikfcnoo, Hid tlun
ling u-Mnne lo Inoiselfc a right to lay burdens
i . ..t ail own will wiitiouttlieir as-
nimphj thai offend to toy tan at ln» need
wiili ihe price of his blond, the must sacred
ratiou* in the kuigdoui* r

1. Ml louitb observation is, that in idl peti-
iin.i- eodikiwd by Hie i.oiiiiui.ii- io pBrlinirseat

i.i-:oO-l IliijHisitiiiii'-, til- IMV knot nl I'.. .1

gnefe, ami the principal cause of their nmi-
pbuBlp biili been wpiinaiil ia those petit io;

,507] STATE TRIALS, 4 James I. 1 606.— The great Case of Imposition*, [508

that the impositions have been without assent
of parliament ; by which is necessarily inferred,
that their griefe was in point of right, not of
burden. — In 21 E. 3, nu. 11. the complaint of
the imposition of 2s. upon a sacke of wooll, 2*.
upon a tonne of wine, 6d. upon aver de pois,
the cause of grievance expressed, because it
was done * sans assent de commons.' — 25 £. 3,
nu. 22. In a petition the commons complaine,
that an imposition upon wools was set by the
consent of the merchants ; they pray that com-
missions bee not made upon such singular
grants, if they be not in full parliament ; and if
any such grants he made, they may be held as
void. — 17 £. 3. no. 28. The commons in
their petition informe the king, it is against
reason they should be charged with imposi-
tions set on by assent of merchants, and not in
parliament.

5. My fifth observation is, that, whensoever
any petition was exhibited against impositions,
there was never any respect had of the quan-
tity, but they were ever intirely abated, as well
where they were small, as where they were
great ; no request ever made to make them
less when they were great, nor excuse made of
their case when they were exceeding small ;
which sheweth, that it was not the point of
burden or excesse was respected in their com-
plaint, but the point of meere right. — 25 E. 3,
nu. 22. Fourty shillings set an imposition
upon a sacke of wooll, upon complaint, all
taken off, and no suit to be eased ot part be-
cause it was too great.

36 E. 3. nu. 26. 3 s. 4 d. upon a sacke of
wool all taken off, and no excuse made for the
smalncss; for 21 E. 3. nu. 11. 2 s. a sacke,
2 s. tonnage, and 6d. poundage. — 50 E. 3. nu.
163. A great complaint was made in parlia-
ment by the commons, that an imposition of a
penny was set upon wools for tonnage over and
above the ancient due, which was hut a penny,
and so the subject was charged with 2 d.; also
that a penny was exacted for mesonagc, which
impositions the record duth express did amount
to 100/. a yeere. — This petty imposition was
as much stood upon in point of right, as the
other great one of 40 s., and was taken off upon
complaint in parliament, without either justifi-
cation or excuse for the smalncss of it.

6. My sixih observation is, that those which
have advis d the setting on of impositions
without assent of parliament, have been ac-
cused in parliament for giving that advice, ns
of a great offence in the state, and have suf-
fered sharpe censure and great disgrace by it. —
Neither doe I finde that the quality of the
person hath extenuated the blame ; ns 50 E. 3.
William lord Latimer chamberlaine to the king,
and one of his private councell, was accused
by the commons in parliament of divers deceits
and extortions and misdeed*, and among other
things, that he bad procured to be set upon
wooll, woollfi'lls, aud other merchandizes, new
impositions, to wit, upon a sack of wooll lis.,
which the lord Latimer sought to excuse, be-
cause he had the consent and good liking of

the merchants first. But judgment was given
against him, that he should be committed to
prison, be fined and ransomed at the kings
will, and be put from being of the council;
and this procuring of impositions to be set on
without the assent of parliament is expresly set
down in the entry of the judgment for one of
the causes of his censure. — Richard Lyons, a
farmer of the customs in London, the same
year was accused in parliament for the same
offence. He pleaded, he did it by the kings
command, and had answered the money to the
kings chamber : yet was condemned and ad-
judged in parliament to be committed to pri-
son, and all his lands and goods were seised
into the kings hand. And at the last the hate
against these authors of impositions grew so,
that 50 E. 3. in the same parliament, a peti-
tion was exhibited in parliament to make this
a capital offence. The record [Rot. Pari. 50.
E. 3. n. J 7, 18, 19, 20.] is very short, and
therefore I will set it down verbatim. * Item
' prie le dit common, que soit ordaine per sta-

* tute en cest present parliament de touts ceax,
' queux cy en avant mittont ou font pur lour
' singuler profit novels impositions per lour au-
' thoritie demesn, accrocheants al eux eny ul
1 power de riens que soit establi en parlia-
' ment, sans assent de parliament, que ils eyent
'judgement de vie et member, et de forisrao

* ture.' To this rough petition the king gave a
milde and temperate answer, ' courre la com*
1 mon ley come estoit al avant use.'

7. My seventh observation i«, the cessation
between 50 E. 3. after this censure in parlia-
ment, and 4 Maria?, almost 200 years, during
which time no king did attempt to impose
without assent of parliament. And yet we
finde in the parliament rolls, that there was
not one of tho*e kinii* that reigned in that
time, but had impositions granted him upon
fit occasion by act of parliament upon all goods
and merchandizes, and at divers times during
their reigns, sometimes more, sometimes less
upon the ton and pound, but ever for a time
certain, and indefinite. So the use of them
was not given over, but the power of imposing
wns so clearly and undoubtedly held to be in
the parliament, as no king went about to prac-
tice the contrary. — But to this cessation, that
was of great weight and credit in our evidence,
a colour was given by the other side, to avert
the inference made upon it aguinst the kings,
right, that is, that during ihat time there was
so great a revenue grew to the crown by double
custom paid for all merchandizes both in Eng-
land mid at Callais, hy reason of an act of par-
liament made 8 II. 4* which was, that no goods
should be carried out of the realm but to Cal-
lais, and by reason that the merchants paid
custom both there and here for the same goods,
that in 27 Hen. 6, the custom of Callais was
68,000 /. the year ; a great sum, if you consider
the weight of money then, what price it bare;
and by reason hereof princes not delighting to
charge their murmuring subjects but when need
is, being so amply supplied otherwise, did not

309] STATE TRIALS, 4 James I. 1606.— on an Information in the Exchequer. [510

put that prerogative in practice. — To this I an*
swer, that if that were true that was urged, it
might be some probable colour of the forbear-
ance of imposing. But I finde it quite con-
trary and that by record : for there was no
such restraint of all commodities not to be
transported to any place but Callais, but onely
woous, woolltells, leather, tinn, and lead, that
were staple wares, which by the statute 37
£• 3. were to be transported thither, and not
to any other place, and the staple continued at
that place for the most part from that time
until] long after, 27 II. 6. but there was no
double custom paid both here and there by the
same owner : but the yearly profits of the cus-
toms of Callais at those times were so far short
of that which hath been alleged in 27 II. 6.
that it nppeareth in an act of parliament, 27
II. 6. cap. 2. printed in the book at large,
that the commons do complain, that, whereas
in the time of E. 3. the custom of Cullais was
G&flOOl. per annum, al that time, which was
27 H. 6. by reason of the ill usage of merchants,
it was fallen to be but 12,000/. the year. So
then there was great cause in that respect to
have set on impositions by reason of that great
abatement of customs, and yet it was not then
offered to be done without assent of parliament.
Bat if jou look a little further into the extreme
necessities of those times, you shall finde there
never was greater cause to have strained pre-
rogatives; lor it appeareth in an act of parlia-
ment, 28 H. 6. that it was then declared in
parliament by the chancellor and treasurer,
wlio demanded relief of the people for the
king, both for payment of his debts and for his
yearly livelihood, that the king was then in-
debted 372,000/. which now by the weight of
money amounteth to above 1,100,000/. and
that his ordinary expences were more then his
ready revenue by 19,000 /. yearly. So if ever
there was cause to put a king to his shifts, it
was then ; yet we see they did not venture to
pat in practice this supposed prerogative. It
further appeareth in that statute, that the peo-
ple, among those reasons they alleariged, why
they were not able to retain the king, gave this
far one, that they had so often granted him
tonnage and poundage upon merchandizes,

5 which it appeareth he took nothing
merchants by imposition without grant;
far if he had, no doubt they would not have
stock to nave put him in mind of it. But I
pray consider, what became of this motion of
the chancellor and treasurer. The proposition
had depended in parliament many years. The
•fleet was, the people entreated the king to
resume all grants he had made from the begin-
ning of his reipn, untill that time, being the 28th
year of his reign, excepting such as were made
■pan consideration valuable, that he mii;ht so
enable himself by that mean by which he had
impoverished himself and the whole kingdom.
This took effect, and the statute of resumptions
was thereupon made the same year ; which rc-
osrd, because it is not in print, and declureth
things with great gravity and authority,

[28 H. 6. Stat, de Resump. in Turn Lond. not
printed.] I will set down the very text of it, so
much as is material to our purpose.

* Prayen your commons in this your present
parliament assembled to consider, that u here
your chancellor of your realm of England,
your treasurer of England, and many other
lords of your council, by your high command-
ment to your said commons, at your parlia-
ment holuen lust at Westminster, shewed and
declared the state of this your realm, which
was that ye were indebted 372,000/. which is
grievous, and that your livelihood in yearly
value was but 5000/. And forasmuch as this
5,000/. to your high and notable state to be
kept, and to pay your said debts, will not suf-
fice : therefore that your high estate may be
relieved. And furthermore it was declared,
that your expences necessary to your houshold
without all other ordinary charge came to
24,000/. yearly, which exceedeth every year
in expence necessary over your livelihood
19,000/. Also pleaseth it your highness to
consider, that the commons of your said realm
be as well willing to their power, for the re-
lieving of your highness, as ever was people
to any king of your progenitors that raigned
in your said realm of England : but your said
commons been so impoverished, what by
taking victual to your household, and other
tilings in your said realm, and nought paid for
it, and the quinzime hy your said commons so
often granted, and by the grant of tuunage
and poundage, and by the grant of subsidy
upon woolU, and other grants to your high-
ness, and for lack of execution of justice, that
your said poor commons be full nigh destroy-
ed ; and if it should continue longer in such
great cliarge, it would not in any wise be had,
ne bom. Wherefore pleaseth it your high-
ness, the premisses graciously to consider, and
that yc by the advice and assent of your lords
spiritual and temporal, and by the authority
of this your present parliament, for the con-
sideration of your high estate, and in comfort
and ease of your poor commons, would take,
resume, seise and retain in your hands aud
possession all honors, &c.'
This was very plain dealing by the people
with their king, and this is the success of the
demand of supply and support had in those
days, being required in point of gratification,
without any recompeuce or retribution for it.
Thus then we have cleared this point, that be-
tween 50 E. 3. and 4 Maris, there was not
one imposition set without assent of parliament.
Queen Mary in the fourth year of her reign,
upon the wars with France, set an imposition
upon clothes for this consideration, that the
custom of wools was decayed, by reason for the
most part they were made into clothes, which
afforded little custom ; for that which in wool!
paid for custom and subsidy 40*. made into
cloth paid but 4*. 4d. To recompeuce this by
an indifferent equality, there was set upon a
cloth 5*. 6d. which imposition did not make up
the loss sustained in the custom of wooll, by

611] STATE TRIALS, 4 James I. 160C.— The great Case of Impositions, [512

IS*. 4d. in 40s. This was jusfo/»,but not just 2.
This religious prince, invironed with infinite
troubles iii tbe church and commonwealth, und
much impoverished by her devotion, in re-
nouncing tlie profits of the church-hinds that
were in the crown by the suppression, was the
first that made digression from the steps of her
worthy progenitors, in putting on that imposi-
tion without assent of parliament ; for that very
consideration of the Joss of custom, by turning
of wooll to cloathing, came into treaty in the
94th year of E. 3. when the art of clothing be-
gan first to be much practised in this kingdom ;
and then in the recom pence of the loss so sus-
tained in t lie decay of custom of wool Is, there
was set upon a cloth by act of parliament above
the olde custom, 14rf. for a denizen, and for an
alien 21rf. This is recited in a record in the
Exchequer, 48 E. 3. Hot. 2. 11. The*, in origin.
But I pray you examine, how this impost i"n
of queen Mary was digested by the people.
We see in the case of my lord Dier, 1 ft. foi.
165. that the merchant found great grief nr it,
and made exclamation and suit to queen Eli?.
to be unburdened of it. The xery reason of
their grief expressed in that case is, because it
was not set on by parliament, but by the queens
absolute power; so that was the ground of that
complaint, the very poiut of right. — This cause
was referred to all the judges, to report whether
the queen might set on this imposition without
assent of parliament. They dners times had
conference about it, but have not yet made re-
port for the king ; which is an infallible pre-
sumption, that their opinions were not for him.
For it is a certain rule among us, that if a
question, concerning the kings prerogative or
his protit, be referred to the judges, if their
opinions be for the king, it will be speedily
published, and it were indiscretion to conceal
a; but if there be no publication, then we

down particularly in the book of rates that is
in phut. 1 hey are not easily numbered. Tlie
time for which they are raided is not short.
The patent prefixed to that book, hearing date
28 Julii, 6 Jacohi, will instruct you sufficiently
in that point. They be limited to the king, his
heirs and successors ; which I suppose is the
first estate of fee simple of impositions tbat
ever man read of.

8. My eighth and last observation is npnn
tunnngc and poundage given to the king of this
realm, upon wares and merchandizes exported
und imported, which is an imposition by act of
parliament, and, as it w ill appear, was given
out of the peoples good-will, as a very gratifi-
cation to the king, to enjoyn him thereby from
the desire of voluntary impositions, and to con-
clude him by that gilt in parliament from at-
tempting to take any other without assent of
parliament, lor after the ceasing of voluntary
impositions, these parliamentary ones were
frequent in the times of the king that succeed-
ed. But they were never given but for years,
with express caution how the money should be
bestowed ; as towards the defence of tbe seas,
protection of trathr, or some such other public
causes. Sometimes special sequestrators mane
by net of parliament, by whose hands the
monev should Ik* delivered, as 5 R. 2. c. 3. m
u printed statute. The rates that were given
were very variuble, sometimes 9s. tunnage, and
6</. poundage, as 7 H. 2. 3s. tunnage, and 194.
poundage, 10 It. 2. which grants were not to
endure, the longest of them, above a year ;
18</. tunnage, tirf. poundage, in 17 R. 2. 3*.
tunnage and 12'/. poundage granted to H. 4, in
the thirteenth year of his reign for n certain
time, in which statute there is this clause, that
this aide in time to come should not be taken
for an example to charge the lords and com-
mons in manner of subsidy, unless it be by
the wills of the lords and commons, und that

make no doubt, but that their opinions are

either against the king, or at least they stick, ! by a new pant to he made in full parliament
and give none for him. " in time to come. This clause in good and

Tla? same queen Mary, upon restraint of : proper construction m.iy he taken to be a very
bringing in of French commodities occasioned ! convention hetwe

by the then wars with France, sit an imposi-
tion upo«i Gascoyn wines, which continue! h
yet. 5;) the kingdom of England by the injus-
tice of that prince was clogged with these two
heavy impositions, contrary to the right of the
kingdom and the acts of her progenitors.
Queen Elitabeth set on that upon sweet

en tlu- king and his people in
puilinmeut, that he should not from thence-
forth, nor any of his successors, set on imposi-
tions witliout assent of parliament. The like
imposition was granted to H. 5. in the first
year oi his reign for a sliort time towards the
defence of the realm, and safeguard of the sea,
upon coiklition expressed in the act, that the

wines, which grew also upon the occasion of > merchants denizens and strangers coming into

the troubles with Spain. That upon aliome
was none. It was rather a monopr.lv to master
Smith the customer of London, for ;he i (gros-
sing of all a Homes into his own hands, for which
priiiledt^e he gave a voluntary imposition upon
that commodity. It was like the pri\ilcdL*e

rited to John Pechey of the sweet wines by
3. for which the patentee was called into
the parliament house, 50 E o, and was there
punished, and his patent taken away and can-
celled.

What impositions have been set on in the
kings tine, 1 need not express. They are set

I

the realm with their merchandizes, should be
we.l and honestly used and handled, paying the
said subsidy as in the time of his father, and
his noble progenitors kings of England, without
rtppre»M«,n or extortion. In the end of which
act the commons protested being bound by any
grant in time to come, tor the purposes afore-
said.

II. 6. in the 31st year of his reign, bad tan-
nage and i oundagc given him for his lire, E. 4b
had it given him the third year of his reign, as
it appcarcth in a statute 12 E. 4. cap. 3. H. 8.
iii the sixth veur of his reign, and *U SHiee-io

STATE TRIALS, 4Jami»I. 1806.— on 01 EhV«
Medb, pnviof i

il rur-ir of iheir itrignt have hod it given
i»r term of A ..

.. ,rh limber at rlint, from

U ion. F01 crii
I
gfwt ibu > 1 ■ 1 ] . ■• 1 - 1 f. : ■ . 1 1 of

.

: bj hw prerognlne might
rrithoal asset t «rf purli 1-

tit*ke tli*l. ui I

> (Jlfctll. -Illl hl.lilHUuh „(' [[,(- j.,1,,,-,

■ : 1 I.,- in ;.;..i..-,l. and how
iri[, nnrl Hir who) time h.
ic 11, which Ik: uiijii ]..-■■

.iiese unplens-
• -— 1'iic itntntc* of lunnis*

: liiiiv, do yet 1

»1lo-

I the substance
intuit I Jnc. rirp 33 «(
Out we trust, Mini have sure confidence

■

: -ill |lli'il.( I.I. Ilii.li:

a-, «iil drnhen* *i birniie.1 1 ■,

. Im well «nd I eatlj

i',,|. iuch thing* wlw ■ ■■
lypgrMitrd, ii- liny were in the litni

■ :nd prtiliiL-siir?, with-

Lbem to be done. ,Bj thfi

i'» tli, the true intent of

1 be, 'ini there ought

i,ii|,...iri,ji> fi tie I ml upon merchant.

bj this statute ; mid this

, 'I'll ll.tr-. (ilfti.il hy Ii- 1

■ ■ ' meuf I . 3. to the time
■ ■ ileclmed,
h Of this hist reason, made frou

it oft*

c .isntiin. the peoples right, and
obtttr in iii; [1119-

11 most insisted upon is
.. prerogative rnyiil liatli
1 of the (invent mid port, ui this
•t iht verv i.

of these gules; that he
mt them, mid to npt n

" itud to wl oni lie 111 his princelt
; tun! Iiy Ihe law of

1* tlie land, •» from coming
my nf Ins own power ntid

. tid imponniion
. out of ■

■
eood* ; tlicre-

n the Erelteqtter. [Jl-t
imposition fot bis tufitr-

„, in,

r ti e grounds ,

nl-'lCCI i'jii, I -!'■ ...

' em. Other < 1 the - i > (jualified.

h v be , iv '. ssed. But the ml 1 ore and

. tin 1 . I 1 ■ . . .v (It ii) ;

1 it there 'nmMtaOv *>.'. 1 ..■

1 ir;,m B tl e 1I..IIM- t . .1 ibtOJj Of

II ,I.,.I. is I -i

1 lie ling oni ly fidin'ury, nnil in pimi ni' rm.i
mill ciiM.'ilnlnill, llrt- nim Ii:-;, 1I1 11.

crfinien st -11. tl unin — .\ilii!i the Li .-

indium purlwtiHi jet be hjth but tin Wntodr,

which 1= trust, win not d

I1..1I1 pnwi 1 1 . open awl ,1,111 U|-un com di 1.1-

iiuii of pal >lk good to the peop e

but DOt In 1.1.1I.1: |>niu iii.tl lit ui ill iiv ii . I lie

.,..;. ■- 1 roll I ■

porn in their own urture are uobTike, free for

. ... d mt; yet fm the 1 1

■. -.Ill I'ili.l.' |,y il.r.' v

poijcjf ol the pi ■',',. ■ '

11 the owe* *

«d. in

11 cue, tlmt in

,1 1 he woiihl bring
limit; vt. ix.1i h 111 tint •-'. ■ ■■■.!■ ■ ■
king and Ins crown.— lilt king by ilie COlH
hiw, may send his writ, 'if £Mn> rfjgMft

tlie n :ilm , hut the suiinii

the ■

■ quid to versus partis evicts; nhnque
' iitisLr.i clnrn desonM tl diverHt
' plurimit nobis M tWOBa DMItB [ircjudtcin

■ pmeequi.' Filth. N. n 85. h. point

of giivcniinciM, niiii cuimuon gujd ■

be iimy restrain the Mrtun. Bui 10 c>rndu<te

t v*J t»l*e iniiuey nut id ictroin,

i4i.is.il jjDv.'ri.uieii!, tniit ifiil common ju*<

mnvuiiliy l..t ditlue oltice of ft

Hut let us onmpnre tills pwXef of lb( kin;- in
foruiRn »fl*air>, Wtljl tl c .liU- power he hjtli In

... nimeoi Thi re i
Imt tlie king both the tusuiilv ,.,

null then

,.,„l c

• iu.1 li.Iv i:l ||mj L-.llil

ill r.lit'lilliil, n> Hell

ill tlie putts and h 11 vein, end Bpu t..ui-

tllT- • ul lltC »r;d pi ...

that them at his plen-iirc. As il tin: uih -rtioo
ui the -iiAiu-s be duwertm in pin 1
tlie tn j- of l...iiil..[i, the king ten 1
tlmt ROM irnui thnte pi « ■ - (fara 1
the eft] Ma.) he tl ■ ■

upon those ihut lir ■.it. 1. i! i ■ i .,
■

.

01 triiiri, .imil i„. t l 11 1 l ii.tr reMTMN Um bringing

en li . 1 lij

. long in bit dbcredoD,

9 L

515} STATE TRIALS, 4Ja*tesI. 1606— 77*<r great Case of Impositions, [516

in point of equity, and for qualifying the rigour
ofthel.iu, may enjoyu any of his mi I >j ecu by
his ch-jneettor from suing in his court of com-
mon-law. Mav lie therefore make a benefit
by restraining nil from suit in his courts, unless
they pay him mi imposition upon ilnir suits'?
In 2 E. 3. in the c:ue of the carl of Richmond
before-cired, the king had granud unto the
m f n of Gieat Yarmouth, that all the ships that
imivel ;-.t t!ie port of Yarmouth, which con-
sisted of three suvcr.il ports, Great Yarmouth,
Little Yiirm mth, and Gcrnchton, should arrive
all at Great Yarmouth, nnrl at no other place
withm that port. The law fulness of this patent
being in question in the kings court, it was lea-
soned in the kin^s behalf for the upholding o(
the grant, us it is now, that the king had the
custody of the port; he might restrain mer-
chant*) from landin » ut all in his kingdom :
therefore out of the same power might appoint
where, and in wli.it haven they should land,
and no other. This patent was demurred on
in the Kings Bench, as being granted against
the law; but ilk* case depending was a dj mined
into parliament for the weight and consequence
of it, and there the patent wa? condemned, and
a law made [9 E. 3. cap. 1.] against such and
the like grants. — The presidents, that were
vouched fir maintenance of this power of re-
straint in the king, were four produced almost
in so many hundred years, whereof two were
in 2 E. 1. one in 10 E. 3. another in 17 II. 6.
since which time we hear of none hut by act of
parliament, as they had been usually and regu-
larly before. To these I will give answer out
of themselves, out of the common-law, out of
divers statutes, mid out of the practice of the
common- wealth. The icstraints in the time of
E. 1. one of them hhs to forbid the carrying of
wooil out of the realm, the other was to forbid
all traff.ck w ith the Fleming*. That of 10 K. 3.
was to restrain the exportation of ship-timber
out of the realm. That of 17 II. 0. to prohibitc
tratlique with the subjects of the duke of Bur-
gundy. The*e presidents arc rare, yet they
nave in them inducements out of publique res-
pects to the comtnou-weaiih. For the rule of
common-law in this case, I take it to be ns the
reverend judge sir Anthony Fitzherbert holds
in his writ of tic txcas rcgnum in Nat. Br. 85.
that by the common-law any man may go out
of the kingdom, but the king may upon causes
touching the good of the commonwealth re-
strain any man inwi going by his writ or pro-
clamation, aul if be then <?o, it is a contempt.
This opinion of his is continued bv the book,
1 Eli*, fol. 105. Dier, 12 & 13 Kliz." Dier, '296.
In like manner, if a subject of England be be-
\orul sen, and the king send to him to repair
home, if he do it not, his land* and goods shall
be seised for the contempt; and this was the
case of William de Britain earl of Richmond,
19 E. 2. He was suit by the king into Gas-
coy ne on a message, and refused to return, for
which contempt his goods, chattels, lunds, and
tenements were seised into the king's hands.
The record is cited 9 & 3 Philip and Mary, in

my lord Dier. fol. 128, b. and die law there
held to be so at that time upon a question
moved in the queen's behalf against divers,
thht being beyond the seas refused to return
upon commandment sent unto them to that
purpose. 'J he same is attain for law confirmed
in the dm chess of Suffulke's case, 2 Eliz. Dier.
176. But the commnn-law was altered in this
point by the statute of .5 It. 2. cap. 2, by which
the p:issage of all people is defended, that they
may not go without licence, except the lords
and other great men of the lealm, merchants,
and souldiers. So fir the merchants, which
are the people dealt withal, in the business in
hand, the common-law remaineth as it was be-
fore the statute ; and so it was held, 12 Eliz.
Dier, 196, where the case was, an English
merchant, being a papist, went over-sea, and,
being there, did settle himself to remain there
for the enjoying the freedom of his conscience.
It was moved here in England, that his going
without licence should be a contempt; because
he went not to tratlique as a merchant, but for
the cause of religion. It was resolved, no such
averment would be taken in this case; for that
the very calling and vocation of being a mer-
chant did give him liberty to go out of the
kingdom when he would, and therefore the se-
cret intent of his going was not to be enquired
after. ' Sed lex inspicit quod verisimdius.'
Therefore it was in this case held no contempt.
But at this day the law is as it was before,
5 II. 2, cap. 2, for that statute is repealed,
4 Jac. cap. 1. And all men whatsoever are
now at liberty by the common-law to pass out
of the realm. There is only against this incon-
venient lilwrty a proclamation' elated at West-
minster, 9 Jul. 5 Jac. to the very same effect
in point of restraint of passage with the statute
of It. 2. So the subject is in this much the
more at ease and liberty then he was before,
that his uoing over-sea without licence doth
not induce any forfeiture, but onely incurreth
the censure o^ a contempt ; and therefore it
were to be wished that some firm law might be
made in the case, both for the execution of so
good a point of policy, and for the more quiet
of chelate, in knowing the certainty of the
punishment for the offence.

This liberty and freedom of merchants hath
been strengthened and confirmed by many not-
able laws before recited, as 14 E. 3. stat. 9.
cap. 2. 15 E. 3, stat. 2, cap. 5. 18 E. 3. Stat. 1,
cap. 3, and di\ers otln-r. And therefore though
it be admitted that the king may restrain per-
sons and goods, yet it mav well be denied, that
he hath power of himself alone without assent
of parliament simply and indefinitely to restraiu
nil Irathque in general, or to shut up all the
hu\ens ;,ud ports a"d to bar the vcut and is-
suing of wares and merchandizes of the whole
kingdom ; as it uppt areth plainly, that this
hath been done this 300 years, or near there-
abouts, by act of parliament onely, and that
the kingdom of England made this matter of
trnmque so tender a case to deal in, as I bat it
bath ever held it a matter fit for the consult*-

517] STATE TRIALS, 4 James I. 1G0G.— on (in Informatum in the Exchequer. [513

! Jtiir&miily made. »n oiclmance whereby the
J traliick of the Kml^h nation was restrained.

tint! of the great council of the kingdom, and
tor no 01 her.

In II P,. 3, the exportation of woolls was
prohibited by act of parliament, in winch sta-
tute there was this clause, untiil that by the
king and hi* council it he (hereof otherwise
provided: which power so piven to the kintr, to
lie u«ed for the good of the common wealth,
gave occasion to him to abuse it to his prolit
and commodity, by guiug licences of transpor-
tation to nil, that would give forty shillings upon
a sack of wonli above the due custom. This
appearcth in the records in the l'.xehequer, 13
K. S, Rot. 2. Rem. Ihe*. I will describe the
record, that you may perceive the ground of it
the tetter. 4 Hex collectoribus customs in

* portu magna? Jcmiouth salutem. Quia con-
1 cessimus dilecto et hdeli nostra Hugoni de
4 Wriothsley, quod i:*e vigiuti ec sc;,iem sac-
4 cos lane et dim id. de lanis sui* propriis in
'* portu praedicto c.irriare, et eas usque Ant-
4 werpe ad stapulam nostram ibidem ducere
4 possit, solvendo ibidem dilecto cleiico nostro
4 Willielrao de Northwel custodi guardernba:
4 nostra? 40s. pro quolibet sacco pro cubtuma
4 et subsidio inde nobis debitis, &c. vobis man-
4 dam us, quod pnrdict. Hugon. dictos viginti
4 sept em saccos Ian as et dim id. in portu prx-
4 dicto carriarc permittatis, &c.' Aid another
the same year. ( Rex collectoribus custuroa?,
4 &c. Cum nuper ordinuveriinus, quod passa-
4 gium lanarura, &c. apertum existeret, et quod
4 sigiiium nostrum, quod dicitur coket, quod
4 prius claudi et sub scrra custodiri muudavi-
4 mils, a peri ret or, et npcriuin tencretnr ; ideo

* vobis maiidavitnus, quod sigillum praulictum
4 in portu praedicto apcriri, el apcrtum teneri
4 faciutis, et omnes illos, qui huju.Mnedi l.tn u
4 carriare et ducere velmt, permittntis, n ccp-
4 tis prius ab iisdem, viz. do mercatorihus et

4 aliis indigents 40*. de quolibet sacco lauae.'
Divers other such sales of trntiick occasioned
by this parliamentary restraint were made be-
-tween 11 K. 3, that the restraint was made,
and 14 E. 3, that this inconvenience being es-
pied, ilic sea was opened by statute, and the
restraint removed, 14 K. 3, stut. 2. c. 2. 15 E.
3, cap. 5. stat. 2. And this 40*. so exacted
was complained of as an imposition in parlia-
ment, and the occasion and the effect were
both taken away together by act of parlia-
ment, 14 E. 3, stat. 1. cap. 21. and btut. 2.
cap. 1.

It followed in all kings times sithencc the
death of K. 3, that this opening ami shutting of
the havens, restraining and enlarging of traf-
fick, was done by act ot' parliament. — I will
five one instance in the reign of every king.

5 R. 2, c'ip. 2. stat. 2. tor the pissnge of wuoll
wooll-fells and leather. 6 11. 4, cap. 4. for the
trariique and commerce wirii in ere hunts aliens.
8 H. 5, cap. 6. stat. 2. for the restraint of staple
commodities to places certain, and for the
trnmque of* the merchants of the west. 27 H.
6, cap. 1. that is enacted in parliament, which
is contained in the proclamation 17 II. 6, cited
fer * precedent, that is, because the duke of

i liar therefore the Ku^lMimen should not traf-
tick with the suhjec t> i>:" the duke of Rurjiundv.
The same thing enacted upon the hke occa-
sion, 4 E. 4,c, 1. 1*1 II. 7 - c. 21. the impor-
tation of divers comuintiiiies forbidden, a*, be-
in i; prejudicial to the manufa.c:ur<s within the
realm. 6* II. o\ c:- p. 1?. lr:e expoitation of
Norfolk woOlls out of the re din forbidden.
20 II. 8, cap. 10. power is tiiun to the kin*; to
order and dispone of the uatiick of merchants
at his pleasure ; anil the reason is given, be-
cause otherwise the leagues and ami tits witn
foreign princes might he impeach* *l hy reason
of restraint made by divers statutes then stand-
ing on foot ; wherein' it appeurcth that it was
not then taken to be law, that the kin» had an
absolute power in himself to order and cii*>po»e
of the course nf traliick without !u*lp of a sta-
tute. 2 li. (i, cap. 1* fxportatioii ol leather re-
strained. 1 ct 2 I'h. ft Alar, tin* expoitation
of herring, butter, cheese, mid other \iciuaN
forbidden. ll> Khz. cup. ti. the exportation of
tallow, raw hides, loath*. r. >^o in all times no
use of proclamations in matters of this miture,
but acts of parliaments still procured. Wheie-
fore in mine opinion it bcho\eih them thai do
so earnestly urge this argument, the kit;::; may
restrain traliiek, therefore may impose, to
prove better then they have d-me, ll>..t the
kin<i may restrain trathek of his own al s. iiite
power : for as the natural policy and c<m>tiui-
tion of our coiiiiuon wealth is, we may better
sav, that is law whieh is dc mvic ^ftntisy then
that which iloweth from the reaxm of :(tiv man
guided by his general notion and apprihcnaiou
of poaer rejial, in ^c/im , not in iwlividuo.

The last assault made a^ainM the ric,iit of
the kin^doiii, was an objection untinied i.jum
policy, and matter of state ; a*, that it may so
fall out that an imposition may be set by a lo-
re i»n prince that may wring our people, in
which case the counttrpoise i*, to sit on the
like here upon the subjects of that prince ;
which policy, if it be not speedily executid, I»ul
stayed until a parliament, may in the mean
time prove vain and idle, and much d.um.L'e
may be sustained that cannot aftei wards he
remedied. — This strain of policy maktth no-
thing to the point of right. Our rule is in this
phin commonwealth of our-*, 'oportet nemincui
4 esse sapicntiorem legihu*.' If there be an in-
convenience, it is fitter to have it removed by
a lawful means, then by an unlawful. Rut (his
is rather a mischief then an iuconvenit nee ;
that i*, a prejudice in present of 6on»e few, hot
nothuitful to the commonwealth. Ami it is
more tolerable to sutler an hurt to sjmc few
for a short time, then to jiive wav to the breach
and tiofurinn of the ri^ht of the whoic iaar<on ;
for that is the true incoimvcicnce. Neither
need it be so ditiicult or tedious to ha\e thu
consent of the parlianunt, if they wire 1.-. M ;4s
they oupht, (»r mi}:ht be. Rut otir sun si
pnide in this w ill be the e\; rnple nf our ances-
tor* iu this v^ry case, and that in the time of

519] STATE TRIALS, 4 James I. 160G.— The great Case of Impositions, [520

one of the most politick princes that ever
reigned in this kingdom. 7 U. 7, cap. 7. you
shall finde an act of parliament, iu which it
was recited th>.t the Vcncians had set upon
tlie Eugiish merchants that laded malmseys at
Cindy tour ducket* of gold upon u butt, which
in sterling is eighteen shillings die butt. It
was therefore enacted, that every merchant
stranger, thai brought rialmsey into this king-
dom, should pay eighteen shillings the butt
over and above the due cu**tom u-od ; this im-
position to endure, until they of Venice had
set aside that of four duckets the butt upon
the Knzlishinon,

Much haih been learnedly uttered upon this
argument in the maintenance id* the peoples
right, and in answering that which hath been
pressed on the contrary. But my meaning is

not to express in this discourse all that hath or
may he said on either aide, but on«iy to make
a remembrance somewhat larger of that which
I niystlf offered as my tymbolum towards the
making up of this great reckoning of the com-
monwealth, which if it be not well audited, may
in time co&t the subjects of England very dear.
My hope is of others, that labored very wor-
thily in this business, that they will not buffer
their pains to die, and therefore I have forborn
to enter into their province. 1 will .end with
that saying of that true a ltd honest counsellor
Philip Comines in his fifth book, the 18th
chapter, " That it is more honorable for a king
to say, ' I have so- faithful and obedient sub-
jects, that thry deny me nothing I demand,'
then to say, * I levy what me list, and I have
priviled^es so to do.' "

[" At the end of the foregoing Argument by Yelverton, an Extract from a Petition
of Grievances addressed by the Commons to King James in 1610 is added, one
subject of which is Impositions by Prerogative. But the whole Petition is ih
♦ Mr. Petyt's Jus Parliamentarium ; and as we are not aware, that it is to be found
either in the Parliamentary History, the Journals of the Commons, or any other
printed book, except the two before mentioned, it is here inserted as a fragment
of some curiosity. To this Petition, we shall add lord Bacon's Speech on pre*
senting it to the king. The king's Answer to so much of the Petition as re-
garded Impositions, ii in the Parliamentary History, vol. i. p. 1132. Mr. Petyt,
in his book before cited, gives some remarks of his own on the subject, with an
extract from the Journal ot the Lords for 23d May and 6th June 1012, when it
was unsuccessfully ai tempted to obtain the Opinion of the Judges on the Question
of Imposition." Hargrave.]

Petition of Orievaicces bv the Commons in
1610, from Petyt's Jus Parliamentarium,
p:tge321.

To the king's most excellent Majesty.

Movr gracious Sovereign ; Your majesty's
most humble commons assembled in parlia-
ment, being moved as well out of their duty
ami zeal to your majesty, as out of the serine
of jiiol grief, wherewith \our loving suljects
an generally through the whole realm at this
time possessed, because they perceive their
common and ancient right and liherty to be
much declined mid infringed in these late years,
do with all duty aiid humility present these our
jutt compliiintt thereof to your gracious view,
most instantly craving justice therein, and due
redress.— -And although it he true, that many
of the particulars, whereof we now complain,
were of y>uic use in the late queen'* time, and
then not much impugned, because the usage ot
them being then more moderate, gave not so
great occasion of offence, and consequently not
so much cause to enquire into the right and
tulidity of them ; yet the right being now moie
thoroughly scanned, by reason of the gieat mis-
chiefs and iucouveniencies which the subjects
have thereby sustained : we are very confident
i hat your majesty will be to far from think-
ing it u point of honour or greatness to
continue any grievance upon your people, be-
cause you found the in begun in your predeces-

sor's times, as you will rather hold it a work of
great glory to reform them ; since your majesty
knoweth well that neither continuance of time,
nor errors of men, can or ought to prejudice
trutii or justice; and that uothing can be more
worthy of so worthy a king, nor more answera-
ble to the great wisdom and goodness which
abound in you, than to understand ,the griefs,
and redress the wrongs of so loyal and well de-
serving people.

In this confidence, dread sovereign, we offer
these Grievances, the particulars whereof are
hereunder set down, to your gracious consi-
deration.— And we oiler them out of the great-
est loyalty and duty, that subjects can bear to
their prince ; most hun*bly und instantly bo-
seeching your majoty, as well for justice sake,
more th.tn whicli, as we conce.vc, in these pe-
titions we do not seek, as also for the belter
assurance of the state, and general repose ofyoor
faithful and loving subjects, and for testimony
of your gracious acceptation of their full affec-
tions; declared as well by their joyful receiving
of your majesty ntyour happy entrance into these
kingdoms, nhich you have been often pleased
with favour to remember, as also by their ex-
traordinary contributions granted since unto
you, such as have been never yielded to any
former prince, upon the like terms and occa-
sions, that we may receive to these our con-
plaints your most gracious answer. Which we
.cannot doubt but will be such as may be

391] STATE TRIALS, 4 James I. 1606.— on an Information in the Exchequer. [525

thy of your prince] j self, nnd will give satisfac-
tion and great comfort to all your loyal hjicI
most dutiful loving subject*, who do and it ill
pray for tbe happy preservation of your inost
royal majesty.

New Impositions.

The policy and constitution of this your
kingdom appropriate!! unto the kings of this
realm, with the assent of the parliament, as
well the sovereign power of making laws, as
that of taxing, or imposing upon the Mibjcc t-»
goods or merchandizes, wherein they h.tve
justly suiii a propriety, as may not without
their consent be ultei < d or changed.

This is the cause that the people of this
kingdom, as they ever shewed themselves faith-
ful and loving to their kings, and ready to aid
them in all their just occasions with voluntary
contributions; so have they been ever careful
to preserve their own liberties and rights, when
any thing hath been done to prejudice or im-
peach the same. — And therefore, when their
princely occasioned either by their wnis, or
tbeir over great bounty, or by any other neces-
sity, have without consent of parliament set
impositions either within'the land or upon com-
modities either exported or imported by the
merchants ; they have in open parliament com.
plained of it, in that it was done without their
consents ; and thereupon never failed to obtain
a speedy and full redress, without any claim
made by the kings of any power or prerogative
in that point. — And though tbe law of propriety
be originally and carefully preserved bv the
common laws of this realm, which are as an-
cient as the kingdom itself; yet these famous
kings, for the better contentment aid assurance
of their loving subjects, agreed, that this old
faadamental right should be farther declared
and established by act of parliament : w herein
it is provided, that no sucn charges should ever
be laid upon the people, wirhout their common
consent ; as may appear by sundry records of
former times.

We therefore, your majesty's most humble
commons assembled in parliament, following
the example of this worthy care of our ances-
tors, and out of a duty to those for whom we
serve, finding that your majesty, without advice
or consent of parliament, h:ith lately in time of
peace set both greater impositions, and far
more in number, than nuy your noble ancestor*,
did ever in time of war, have with all humility
presumed to present this un*t just nnd neces-
sary Petition unto your majesty, that ah iuipn-
sitions set without the assent of parliament ii»h v
bt quite abolished and taken away : and thut
yaw majesty, in imitation likeui»e of your no-
ble progenitors, will be pleased, that a law may

% that all impositions set or to be sc
your people, their goods or merchandises
Mva only by common absent in parliament, sire
*nd shall he roid; wherein your iirtj(*ry shall
tot givt your subjects good satisfaction in p«»hit
of their rtjfaft, bat boo bring exceeding joy and

coin'brt to them which now sutler ; -partly
through the abating the unco of unlive com-
modities, and partly through the. raining of all
foreign: to the overthrow ot' me; charts mid
shipping ; the causing of a eenerall dearth and
decay of wealth among your people, who will
be Ik reby no less discounted than disabled to
supply your majesty, wheu occasion shull re-
quite it.

Ecclesiastical Commission*.

Whereas by the statute 1 Eliz. cap. 1. inti-
tuled * An Act restoring to the crown the undent
Jurisdiction over the siuie Ec< lc«iasticul,' &c.
power w.is given to the queen and her succes-
sors, to constitute and make a commission in
causes ecclesiastical ; The said act is found to
he i.iconven rnt and of dangorou* extent in
divers resuects : 1. For that it enableth the
making of such a commission, as well to any
one suhject born as to more. 2. For that,
whereas by the intention and words of the sta-
tute, ecclesiastical jurisdiction is restored to tbe
crown, and your lughmss by that stature en-
ithlcd to eivc only such power ecclesiastical to
the said commissioners; yet uuder colour of
some words in that statute, where the commis-
sioners are auihnrised to execute their commis-
sion, according to the tenor and eifect of vour
hifchne»s**s. letters patent?, and by ieticsspaienis
grounded thereupon ; the said commissioners
do fine and imprison, and cxcrciai? other uu-
tliority not belonging to the ecclesiastical j uris-
dicriou restored by that statute; which we con-
ceive to t>€ a ercat wroug to the suhject ; and
that those commissioners mi^lii as well, by
colour of those words, if thev were so nut ho-
rised hy your hi" I mess's lettir* patents, line
without stint, and imprison without limitation
of time; as aUo, according to wii! and discre-
tion, wfrh'int any rule* f(tp*, spiritual or tem-
poral, arf>ud«e un<* i<np sc utter cuntii-caUon nf
i!0'id>, forf* i! ure >f hinds; yea and (he taking
away of a Innh, and ot life it-clr"; and this for
any matter whatsoever pcrtainm* to spiritual
jurisdiction. Which uevtr was nor could be
meant hy the makers of that law. il. For
that hy the >tatuit , the king and his successors
'(however your ma,»-ty hath been pleased out of
your gracious di -position otherwise to order)
may make and direct such coin mission into all
the counties and di«.cc*cs; ytu into every parish
of Kn<jhmd; und thereby all causes may be
tak< n from jur*d;ction of hishopfc, chancellors
and archdeacons, and laymen bolely to be en-
nl hd to e.\co:iin>iimcate ami exercise all other
censures spiritual. -1. I ha t ev.-ry petty oftence,
pertaining t , spi'itual jurisdiction, is hy colour
of the said words and Utters patents, grounded
th'ieup'vu, made subject to excommunication

be mane during this session of pnrlinment, to and punishment hy thnt strange and exoi bitant

power and commission; whereby the least of-
t«Nidi rs, not committing any thing of any enor-
nioiis or hiu.li nature, may lie drawn from the
most retnoti places of the kingdom to London
or York ; which is vrry grievous and incon-
▼cnieut. 5. For that limit touching causes

I

523] STATE TRIALS, 4 James I. 1606.— The girat Case of Impositions, [524

appoint and alloc to women discontented at and
unwilling to live with their husbands, such por-
tion and allowance tor present maintenance, as
to them shall seem meet ; to the pre at encou-
ragement to wives to he disobedient and con-
temptuous against their husbands. 3. In that
their pursuivants and other ministers employed
in the apprehension of suspected otlenders in
any tiling spiritual, and in (he searching for any
supposed scandalous books, use to break open
mens house*, closets, and desks, rifling all cor-
ners and secret custodies, as in cases of high
treason or suspicion thereof.

All which premises, amongst other things
considered, your majesty's most loyal and duti-
ful commons in all humbleness beseech you,
that for the easing of them, as well from the
present grievance, as from the fear and possi-
bility of greater in times future, your highness
would vouchsafe your royal assent and allow-
ance to and for the ratifying of the said statute,
and the reducing thereof, and consequently of
the said commission, to reasonable and conve-
nient limits by some act to be passed in the
present aes^i-jn of parliament.

subject to this commission, being only with
these words; viz. ' such as pertain to spiritual
' or ecclesiastical jurisdiction;' it is very hard
to know what matters or offences are included
in that number : and the rather because it is
unknown, what ancient canon* or laws spiritual
are in force, and what not. From hence
arise th great inconveniency, and occasion of
contention.

And whereas upon the s^mc statute a Com-
mission Ecclesiastical is made, therein is griev-
ance apprehended thus: 1. l*'or that thereby
.the same men have both spiritual and temporal
jurisdiction, and may buth force the party by
oath to accuse himself of any offence, and also
enquire thereof by a jury: and lastly, may in-
flict for the same offence at the same time, and
by one ami the same sentence, both a spiritual
and a temporal jurisdiction. 2. Whereas upon
sentences of deprivation or other spiritual cen-
sures given by force of ordinary jurisdiction, an
appeal lyeth for the party aggrieved, that is
here excluded by express words of the commis-
sion. Also here is to be a trial bv jury, vet no
remedy by traverse nor attaint; neither can a
man have any writ of error, though a judgment
or sentence be given against him, amounting to
the tailing away of all his goods, and imprison-
ing of him during life, yea, to the adjudging
him in case of prtrmunirc, whereby his lands
are forfeited, and he out of the protection of
the law. 3. That whereas penal laws and of-
fences against the same cannot be determined
in other courts, or by other persons than by
those trusted by parliament with the execution
thereof ; yet the execution of many such sta-
tutes (divers whereof were made since the first
of Eliz.) are commended and committed to
these commissioners ecclesiastical, who are
either to inflict the punishment contained in
the statute being praemunires and of other hi oh
nature, and so enfosce a m:m upon his own oath
to accuse and expose himself to those punish-
ments, or else to inflict other temporal punish-
ments at their pleasure. And yet besides und
after that done, the party shall be subject, in
the courts mentioned in the acts, to punish-
ment by the same acts appointed and inflicted.
Which we think very unreasonable. 4. That
the commission giveth authority to enforce men
called into question, to enter into recognizance,
not only for appearance from time to time, but
also for performance of whatsoever shall be by
the commissioners ordered.

And also that it giveth power to enjoin
parties defendant or accused to pay such fees
to the ministers of the court, as by the com-
missioners shall be thought fit.

And touching the execution of the commis-
sion, it is found grievous these ways among
other: 1. For that laymen are by the commis-
sioners punished for speaking (otherwise than
in judicial plnccs and courses) of the simony
and other misdemeanors of the spiritual men,
though the thing spoken be true, and the speech
tending to the inducing of some condign punish-
ment, it. la that tfiese commissioners usually

Proclamations.

Amount rnnv other points of happiness
and freedom, which your majesty V subjects of
this kingdom have enjoyed under your royal
progenitors, kines and queens of this realm,
there is none which they have accounted more
dear and precious than this, to be guided and
governed by certain rule of law, which giveth
both to the head and members that which of
right belonged) to them ; and not by any un-
certain or arbitrary form of government. —
Which, as it hath proceeded from the original
and constitution and temperature of this estate,
so hath it been the principal means of uphold-
ing the same in such sort, as that their kings
have been just, beloved, happy and glorious;
and the kingdom itself peaceable, flourishing
and durable, so many ages. — And the effect, as
well of the contentment that the subjects of
this kingdom have taken in this form of govern-
ment, as also of the love, respect and duty,
which they have, by reason of the same, ren-
dered unto their princes, may appear in this,
that they have, as occasion hath required, yield-
ed more extraordinary and voluntary contribu-
tions to assist their kings, than the subjects of
any other known kingdom whatsoever. — Out
of this root hath grown the indubitable right of
the people of this kingdom, not to be made sub-
ject to any punishment that shall extend to
their lives, lands, bodies or goods, other than
such as are ordained by the common-laws of
this land, or the statutes made by their common
consent in parliament. — Nevertheless, it is ap-
parent, both that Proclamations have been of
late years much more frequent than heretofore,
and tluit they are extended, not only to the
liberty, but also to the goods, inheritances, and
livelihood of men; some of them tending to
alter some points of the law, and make them
new : Other some made shortly after a session of

525] STATE TRIALS, 4 James I. 1606.— on an Information m the Exchequer. [5%

parliament, for matter directly rejected in the
tame session : Other appointing punishments to
be indicted before lawful trial and conviction ;
Some continuing |>enaltica in form of penal
statutes ; Some referring the punishment of
offenders to the courts of arbitrary discretion,
which have laid heavy and grievous censure*
upon the delinquent!) : Some, as tie proclama-
tion for starch, accompanied with letters com-
manding enquiry t) he made i.gainst trans-
gressor* at the quarter se*si< n> : And some
\uuching former Proclamations, to countt nance
ami warrant the latter; as by a catalogue here-
under written moi e particularly appcau to. By
reason wliereof there is a general fear conceiv-
ed and spread among- 1 your majesty's people,
that Proclamations \v ill In degrctscrow up and
iocreasc to the strength and nature of laws.
Whereby not only that ancient happiness [free-
dom] will be ns much blemished (if not quite
taken away) which thrir ancestor, have so long
cojityed; But the same may also in process of
time; bring a new form of arbitrary government
upon the realm. And this our fear is the more
increased, hv occasion as well of certain books
lately published, which ascribe a greater power
to proclamations than heretofore hath befn
conceived to belong unto them : as also of the
care taken to reduce all the Proclamations made
sioceyour majesty's reign into one volume, and
to print them in such form as nets of parlia-
meut formerly have been, and still are used to
be; which seemtth to imply a purpose to give
them more reputation and more establishment
than heretofore they have had.

We therefore, your majesty's humble sub-
jects, the commons in this parliament assem-
bled, taking these matters into our considera-
tion, and weighing how much it doth concern
y»mr majesty both in honour and safety, that
web impressions should not be in forced to
letxie in your subjects minds, have thoucht it
to appertain to our duties as well towards your
majesty, as to those that have trusted and sent
otto (heir service, to present unto your ma-
jesty's view these fears and grii ■!•» of your
people; and to become humble *::iaors unto
your mstjestv, that thenceforth no tine or for-
feiture of goods, or other pecuniary or corporal
puouhruent, may be inflicted upon your sub-
jects, (other than restraint of liberty, which wc
aho humbly beseech may be but upon urgent
■tensity, and to continue but 'till other order.
■ay be taken by coume of law; uukss they
thallorTciid against some law or statute of tin's
Tnbn in force at the time of their ohVuce com-
mitted ; and for the greater atsuruurc and
Comfort of your people, that it will phase your
auy est y to declare your royal pleasure to that
purpose, either by some law to be made in this
KSHon of parliament, or by some such other
course, whereof your people may take knnw-
Itiire, as to your princely wisdom shall seem
■tfticonveiih nt.
A Catmlvgue of tone of the Proclamations

eowplniwd of.
t Proclamalioui importing alterations of

some points of the law, and making new : 1 1
Jan. 1 Jac. fob 57. forbiddeth chusiug of
knights and burgesses bankrupt or outlawed;
and coinmandcth choice of such as are not only
taxed to subsidies, but also have ordinarily
paid and satisfied the same, fob 57. — If returns
ho made contrary to proclamation, they are to
he rejected as unlawful and insuiheienr, fol. 60.
— 25 Aug. 5 Jac. fol. 151. That the Proclama-
tion should be a warrant to any officer or sub-
jtct to seize starch, and to dispose or destroy
any stuff, &c. And rtstrainetli all men not
licenced to make starch, ft J. 154.

2. A Proclamation made shortly after parlia-
ment, fur n. utter directly rejected the prece-
dent session : 1 March, 2 Jac. fol. 112. A
proclamation for building with brick, after a
bill to that end rejected.

3. Proclamations touching the freehold live-
lihood of men : 16 Sept. 1 Jac. fol. 41.. Rais-
ing and pulling down houses authorised, and
prohibition to build them again at any time. —
12 Oct. 5 Jac. fol. 160. Forbidding building
and taking away the materials ; and appointing
the owners land to be lett by other men at
what price they plea e, fol. 101.

4. Proclamations, icier ring punishments to
be done by justices of the peace, mayors,
baliils, constables, and other ofheers; or
seizure bv persons who have no authority to
enquire, near and determine of those offences ;
so it is to be inflicted before lawful triul and
coiivirtion. 8 Jan. 2 Jac. fol. 72. A pro-
clamation for folding wools, &c. 23 August,
5 Jac. fol. 151. A seizure of starch, &c.

5. Proclamations penned with penalties, in
form of penal statutes: 4 Nov. 1 Jac. fol. . . .
Pain fit" confiscation of goods. 18 Jan 2 Jac.
fol. 72. Ten days imprisonment, and standing
in the pillory. — Justices of peace to forfeit 20/.
if they see not the proclamation of folding
wool!:* executed. 23 Aug. ft Jac. fol. 151. For-
feiture of one moiety of starch, &c. seized, &c,

6. Puni-hment of offenders in courts of arbi-
trary discretion, a» Star-l'hunbcr : 1 March, 2
Jac. fol. jo », Proclamation for building. — 12
Oct. 5 Jar. fol. 150, a Proclamation for build-
ing.--July, <5 Jar. fol. 177, Proclamation for
ati-.rch. — if 5 Jol;.-, 6 Jac. fol. 1150, Proclama-
tion for building.

'7. Former Proclamation* become precedents,
and \ouc';cd in lift: r Proclamations. 18 June,
2 Jac. fol. 75. avouched 5 F.d. 6. and 4 Kliy.
fi.l. 73 — 25 July, 6 Jac. fol. 180, uiLiitiomth
f.-ruur Proclamations against buildin*:*, and
e\plaincth and qualified) them.

Wrift of Prohibition, 4'C

Your majesty's commons, in this session of
parliament assembled, do cbearfullv acknow-
ledge the spring and fountain of public justice
of this >tato to be originally in v»»r nu-ieMv.

- * • • • •

For the bent-lit thereof i* conveyed and deii*cd
into f\( iv member of tins politic liody by your
highness'* writs.

Amongst which none are more honourable:
fur the support of the comu.on justke of the

527] STATE TRIALS, 4 J Aires I. 1606.— The grtat Que of Impositions, [Wf

realm, than tlie writs of Prohibition, Habeas
Corpus, ct de how ate replcgiando : which writ*
have been c» er held and tbund to be a chief
means oi' relief unto the poor, distressed and
upprrs-ed subjects of this kingdom, and can be
no inconvenience at all: seeing they are no
way c inclusive against any man, nnd do draw
no tunetit to the procurers, but rather a fruit-
less charge, if they he obtained upon any unjust
ground or pretence. — Ju the free granting of,
nnd proceeding upon, some of which writs,
especially that of Prohibition, "there hath of
late been observed to be some obstruction, by
reason that upon the complaints and the im-
portunity of some, who de».ethe support of in-
ferior courts against the principal courts of the
common law, (wherein ywiir majesty hull been
greatly troubled; you have taken into your
royal consideration the several extents of the
jurisdiction of the said stvetal courts. — Since
which time the said writs have been more spar-
ingly granted, and with stricter cautiens than
anciently lrnth been accustomed.

It is therefore most humbly desired that it
may please your majesty, whose glory is never
more conspicuous than when the poorest of
the commoir.ilty are blessed with tlie influence
of the ancient heains of justice, to require your
judges in the courts o| Westminster t-> grant
the said writs, in ca*cs wherein such wiits do
lye, ana by law are grantable ; and in Mich
sort as that such persons whose bodies being
either committed to prison, or their causes like
to recover great prejudice by proceedings
against them in times of vacation, may nut be
debarred nor deferred from having the speedy
relief and benefit of those Writs, more than in
former times.

Four Shires near Walts.

. Forasmuch as the exercise of authority over
the counties of Gloucester, Hereford, Wigorn,
and Salop, by the president and council of
Wales, by way of Instructions upon a pretext
of a statute made in the 31th year of the reign
of kin.: Henry 8, is conceived not. to be war-
ranted by thai, or any other law of this realm
of Hi .^laud. — And for that in the second ses-
sion of this present parliament, there did a hill
pass the hou«e of cnmniuiis, wliereby it was de-
clared iliac the true intent and meaning of iha't
heftire menti med statute was not thereby to
subject theM' counties to that kind of govern-
ment by Instructions ; and yet notwithstanding
the inl: ibitants of those counties are since ut-
terlv d'>cou raged, and in eft'ect debarred from
the tryal of the right of that kind of jurisdic-
tion over l!'0»e counties, by the ordinary r>im>c
of the common ltvvsof this land, by reaviii ot
IVolii'n'unis which were herttoliiie frequently
granted, upon siu:<;t>tioii that those counties
are noi part uf Wales, or of the in ir>he> of the
sain-.*, which is the very point in question, are
now \erv h:uu to be obtained, except in cases
where those 4 if that council do exceed the iu-
ttmciioiis set down to thnn by your majesty :
As aUo for thai, in c;im wbeit uctiou» have

been brought at the common law, whereby
that question might have come to decision, the
plaintiffs have been stopped, s imetime* by In-
junctions out of your majesty'* court of C ■lian-
cery from their proceedings, sometimes before,
sometimes after judgments, and also by impri-
sonment :— The preci dents of wluch proceed-
ings do concern all your majesty's loyal and
diriful subjects of this kingdom, as well in re-
spect of the stopping of the f.xie course of jus-
tice, as also by reason that if that kind of juris-
diction were at first extended over these four
counties, and be now still continued without
warrant of law ; the consequence of this exam-
ple may in future times give countenance to
the erecting of like jurisdictions in other places
of this realm.

And forasmuch as your majesty was pleased
to command all the judges to consider of this
que>tioa>, and tint they thcieupon bi stowed
very many days in hearing the cause argue •< by
learned counsel on both sides, and in viewing
and considering gicut numbers of recoids, ]>ro-
duced i-efore them concerning that cm use ;
w here! »y they have, no doubt, truly iurormed
themselves of the right.

It is therefore the most humble petition of
the commons in this present parliament assem-
bled, tint yoi.r most excellent majesty will also
)>e pleased to coin ;•. and, tiiat the judges may
deliver their opinion upon that so exact and de-
li Iterate hearing, v hich was had before them,
concerning the right of the aforesaid jurisdic-
tion over those four counties, by force of that
statute ; and that the opinion whi< h they shiJl
deliver therein, nny be in such sort published,
as that all your majesty's subjects whom it
| in'iy concern, may have means to take know-
ledge there if; and that your majesty will
vouchsafe it* dectuie it, by v-riir most princely
pleasure, that any of your majesty's subjects
who may have occasion thereof, may try his or
their right in that point, by the due and culi-
nary course of the common law, either by suing
out of Prohibitions, orany otiier your majesty's
writs, without restraint; and that if the said
jurisdiction over the-e four counties shall ap-
pear to your majesty by the opinion of the
judges, or otherwise, not to be warranted by
law, that then your majesty wll be pleused,
out of your most princely and grncious favour
inward?, all your loyal dutiful subjects, to order
the ceasing of the said jurisdiction over those
counties, to the great comfort o( the iu habit ants
of iho*e counties, and of the rest of your sub-
jects of all the kingdom. '

New Drapery.

Complaint was made in all humble manner,
the second session of tin* present parliament,
of many disorders, outrages, and oppressions,
committed upon occasion of letters patents
granted to the duke of Lrnov, for ^earchiiig
and Malm* of stud's and manufactures, called
by the name of New Draperies. — Which patent
we held in all, or the most part of it, to be
questionable, and iu many apparently unlaw*

$29] STATE TRIALS, 4 James I. 1G0G.— ow an Information in the Exchequer. [530

fill, and tlie execution thereof' we found
stretched by liie liirmers :md deputies beyond
the extent of the said Utter? patents, us ap-
pears in the particulars sec down in the said
grievance. — To which it pleased your majesty
to give tint gracious answer ; * tbat the validity

majesty, uinougst other grievances of your peo-
ple, in the second session of this present parlia-
ment, your highm ss »» as pleaded to an-wer, that
your grains in thut behalf were no otlu r than
s-ch as were warrantable hv the l.iws. — \\ ljerc-
as the grievance was the greater, tor tuat all

' of the said patent should be left to l>e judged laws concerning the sale of Wines heini; intend-
' by the law, and whensoever any abuse arising ; ed and conceived to stand and be repealed,
'in the execu ion there- if should appear, it ! there were uevui the ie^s, by the oversight o\ them
' should severely he punched.' — Winch was < whii h were trusted in that busines*, casually
for chat time lo our good satisfaction. — Yet I omitted, and lefi unrepealed, certain idwdcte
finding by divers com phi: nts made now in par- : laws impossible to be ob>eived; as namely,
lumen r, tint not only the said loiters patents ! one, in the time of king Edward 1. commanding
are still in force, and the validity of them un- Wines to be bold at U. the suterii; and one
decided by judgment, hi it disorder* in the exe- other made in the '28th year ot king Henry 8,
cation of them, are so far from bcinq reformed, I prohibiting all pcison.t, und. r penalty, to sell
that they multiply every day, to the grievance
of your majesty's subject?* ; and those of the
poorer sort, who exercising the-c manufactures,
are subject to much ojj,>u:-r,io:\ to the great
hindrance of some, and iiUcr uadui.ig of many,
Ui hath appeircd in the. pailicularitiCa of the
complaint? presented to u*.

Our humble desire is, th.it your majesty will
lie pleastd, according to yonr firmer resolu-
tion, to give order that this cau>c, which hath
thu long hung in sixpence, be speedily brought
to judgment ; and that before all the judge*,
because it ennccrneth nil the subjects of the
liod ; and in the mean time that the execution
of the said letters patent:*, so far forth as they
concern the said New Drapery, may he suspend-
ed till judgment he given : whereby your sub-
ject, vi ho do in all humility present this griev-
ance unto your majesty, may be relieved, and
hare no occasion to reiterate their complaints.

Ucence of Wines.

Whereas by ancient and late statutes it hath
l*en enacted, that Wines should be retailed at
web low rates and prices, as lor this 50 Mai's
past they could not be afforded ; and for re-
dress thereof, it was ordained by a statute in
die jth year of the late queen Klizaheth, that
'those former laws notwithstanding) Wines might
he sold at such prices, as by proclamation from
lime to time to be made by consent of many
Jftat o lien ces, should be published and set
down: which proclamation, ucvcithelcss, the
late queen and your mutt cxcellcut. majesty have
been drawn to forbear, upon the earnest .suit of
certain persons, who therein only intended their
private gain : by reason whereof, both great
Was of nioiiry in tine-*, rent*, and annual pay-
ruents, have been cotten an 1 raised unto the
*ud person*, and their assignees, and »reat da-
mage and prejudice hath likewi-e fallen and
liRfit upon your people; no? only by i-nhaucing
the price* <»f wine*, licencing nwr-mun\ tavern-*,
•iiri appointing <>f unmeet person^, in unlit

places, to keep the same ; but al-i by reason I such, as undtT your majrstv's threat
Uut corrupt, mi.;i;led, ivil, and unwholesome ' already procured Licence tor such snleoi' \\ me*.
^laohnvu been tiLte-icd and sold, d the jjrent |

**rt of trie health of your holmes A people : I At- -houses.

iBeman «Miinctiines en^ro.-SiUj all the licences I Whereas l-v the laws of this vunr ma;, "-tv's
jied for that place. j realm of iami md, no t-iv-, «■■!■ . «■.• ',\*\y *:•:■ us

V) hereupon com] da in t being made to y.-.nr of any kmd v. h.uv.>eu r, oii«-hi u.- e -u b*. u.*+

VtlLl II. 2 M

any French Wines above 8(7. the gallon ; ;:ud
other Wines, as sacks and sweet Wines, above
Is. the gallon : — And one branch of a statute
made in the 7tii \ev.r of Knar Kdward 6, proh;-
biting men to sell smy Wines by retail iii their
houses.

Whereupon your majesty hath been induced
anrl drawn to ground new patents of dispensa-
tion, and to grant the beuelit thereof u.t > the
lord admiral : — Whereby the like discommodi-
ties and inconveniencies have since ensued unto
the commonwealth, um formerly did aiise and
grow upon the other npealed l.iws, wlrrcof in
the former petitions «.f vour subject-, exhibited
unto vour maientv in the saui second, session,
your hiy l.ness ne\er h.nl anv direct and clear
uuormalion :

May it therefore please your m est exct 'Irr.t
majesty, at the humble request of your com-
mons, (who have taken into consideration the
greater'- chanjes and expences which the said
lord admiral hath been at in y ■Jiir maje^tx's ser-
viee, and ba\e considered likewise lb:* present
licences a'.d grants, toi'\a(uabie co:iMdt.-i:'tions
unto many Iinndrt d- <ii'vour la^hncs's subji'cts
which, w:th-)Ut ^re.it lois to tne -.'id 'jri'ii^e-jj
cannot be so suddenly u.ai\k: voith <.ut ol' vour
princely wisdom and 'joodutss, wIjckio you
have profc.-^cd in»t to extend and -.train your
prerogative royal, c.uuii"* tlie puiiiic ct'iod of
your people, for the particular *; tui of anv pri-
vate persons, to vouchsalc : that from thence-
fbitb there may no moie u rants of thai natuie
be made unto anv of your ^objects wIioiun)-
ctcr; but that the sai'l rt.iti.te of the all) ol
Kti/abeth f-.»r the apprisinu, of Wines, to bepid>-
h'shed by prO( lamition, as lime :aid ta-tati-m
sludl reipiire, may be put in t \ecuuon : and
(hut your majesty v\iil likewise voachs ■if.- to
grant your royal a^ent lo a bill of lepe.d of the
said ob.-olelc Mtatute", and ;>11 tiUt-v >vh*-]-eiipon
any such not ul*taun> and ■ 1 1 - y*.u* ttion* uu^ht
be grounded. —In which ••taint*" ul'repial, pio-
vi-iou shall be made lor the iudimnitv o!' all

li i\e

•-i \.

dctwi

431] STATE TRIALS, 4 James I. 1606.— The great Case qf Impositions. [5»

or imposed upon your people, or upon any of
their goods or commodities, but only by autho-
rity and consent of parliament. — \Vhich being
undoubtedly the ancient and lundapiental law
ot the land, i* vet tor more abundant clearness
expressly declared in mi miry acts of' parliament,
made and enacted m the tine of sundry your
majesty's progenitors, the noblest and most
prudent kiii^s ol* this re>lni: Your commons
with just grief do coinpliin unto your majest*
of the i.tie tax and imposition hud and imposed
yearly upon sucn as are allowed to keep Vic-
tualling Houses, or sell ale and beer by retail :
which imposition not being taxed by assent ot'
parliiiimnt, but commanded and directed only
by letters and instructions, your commons are
persuaded that the same proceeded rather from
misinformation, than by the direction and judg-
ment of your most noble and royal heart.

Wherefore your said commons, knowing the
grief of your people in this bf half, do (accord-
ing to their duties) in all humility inform and
signify unto your majesty : t. That the s ml
taxation being singular and without example,
and it is in itself a precedent of dangerous con-
sequence, and (as your people fear) may easily
(in time) be extended further, as to badgers of
corn, makers of malt, drovers of cattle, and
such like, who in such sort are to be licenced by
justices of the peace, as those persons are, upon
whom, at this time, this present tax is charged
and laid. <>. Such houses being oftentimes, at
the best, harbours of idleness drunkenness,
whoredom, and all manner of villanies, the
licences are now, (the hone^ter sort in most
places refusing to undergo the new charge,)
rented and taken by the looser and baser sort of
people, who have no conscience how they gain.
By reason whereof all manner of vice and evil
behaviour is likely every day to increase.
Neither can the justices of the peace conve-
niently prevent the same: for that the persons
licenced under the late contribution, afunii
with clamour, that they have a toleration for a
year, anil that such persons are not friends unto
the crown that seek to suppress them, und
thereby to diminish your majesty's revenues.

'I hired v, many jusrices of the peace, (Icing
sworn to execute their office) which for this
particular conceive to be, that Ale-house keep-
ers liiiuierly licenced, are not to be suppressed

without just and reasonable cause, cannot bo
satisfied touching their said oath, but are much
distracted and perplexed what to do, the lata
instructions notwithstanding, against such per-
sons, as otherwise being not known to be of
evil behaviour, only to refuse to pay tins late
taxed and imposed sum of money.

Iu consideration whereof, your humble com-
mons most instantly beseech your most excel-
lent majesty, that the former letters and in-
structions may be countermanded or stayed,
and all further directions and proceedings in
that kind for born.

Sctircoal.

Among many resemblances which are ob-
served to be between natural and politick bo-
dies, (here is none more apt and natural than
this, that the diseases of both do not at one in-
stance commonly seize upon all parts ; but be-
ginning in some one part, do by tract of time,
and by degrees, get possession of the whole,
unless by applying of wholesome and proper
remedies iu due time they may be prevented,
which, as it is in many things veiy visible, so it
is in nothing more apparent than in this matter
of Impositions: which beginning at the first,
e.ther with foreign commodities brought in, or
such of your own as were transported, is now
extended to those commodities, which growing
in this kingdom are not transported, but utter-
ed to the subjects of the same: For proof
whereof, we do in all humility present unto
your majesty's view the late imposition of one
shilling the chaldron of Sea-Coals, rising in Blith
and Sunderland, not by virtue of any contract
or grant, as in the coals of Newcastle, but
under a mere pretext of your majesty *s most
royal prerogative : Which imposition is not
only grievous for the present, especially to those
of the poorer sort, the price of whose only and
most necessary fuel is thereby to their great
grief enhanced, hut dangerous also for the fu-
ture, considering that the reason of this prece-
dent may be extended to all the commodities
of this kingdom.

May it therefore please your most excellent
majesty, which is the great and sovereign phy-
sician of the estate, to apply such a remedy as
this disease may be presently cured, and all
diseases for time to come of like nature pre-
vented.

Speech of Sir Francis Bacon to the King, the 7th of July 1610, on presenting the
Petition to his Majesty, who was attended on the Occasion by sir Francis and
eleven other Mclnbers ; taken from 2 Bacon's Works, 4to ed. p. 212.

Most gracious Sovereign ; The knights, citi-
zens, and burgesses assembled in parliament, in
the house of your commons, iu all humbleness
do exhibit and pre>ent unto your most sacred
iuuje*ty, iu their own words, though by my
hand, tlieir Petitions and Grievances. They are
here ' ouceived and set down hi writing, accord-
to 1 1) cient custom of parliament ; they are also
pr friccd according to die manner and taste of
tkrsu lutar times. Therefore for me to make

any additional preface, were neither warranted
nor convenient; especially speaking before «
king, the exactness of whose judgment ought to
scatter and chase away all unnecessary speech
as the sun doth a vapour. Tins only I must
say. Since this session of parliament we hare
seen your glory in the solemnity of the creation
of this mo>t noble prince ; we have heard your
wisdom iu sundry excellent speeches which yOtt
have delivered amongst us. Now we hope t#

5SS] STATE TRIALS, 4 James I. 1607.— The Case qfPramunire m Ireland. [534

find and fed the effects of your goodness, in
your gracious answer to these our petitions.
For this we are persuaded, that the attribute,
which was given by one of the wisest writers to
two of the best emperors, ' divus Nerva tt divus
1 Trajan us,' so saith Tacitus, ' res olim insocia-
' biles miscuerunt, imperium et libei-tatcm/
may be truly applied to your mnjestv. For
never was there such a conservator of regality
in a crown, nor ever sued a protector of lawful
freedom in a subject.

Only this, Excellent Sovereign, let nor the
sound of grievances, though it he sari, seem
harsh to your princely ears. It is but pcwitim
coltnnb*, the mourning of a dove, with (lint pa-
tience and humility of heart which apperinineth
to loving and loyal subjects. And tar he it
from us, but that in the midst of the sense of
our grievances we should remember and ac-
knowledge the infinite benefits, which by ymr

ijesty, next under God, we do enjoy ; which

hind us to wish unro vour life fulness of days,
and unto your line royal a succession and con-
tinuance even unto the world's end.

It iPstrth that unto these petitions here in-
cluded 1 do add one more that^oethto them all:
which is, that if in the words and frame of
them there be any thing oftcn.-ivc ; or that we
have exprcs-ed ourselves otherwise than we
should or would ; that your majesty would
cover it and cast the veil of your grace upon
it; and accept of our good intentions, and
help them by your benign interpretation.

lastly, 1 am most humbly to crave » particu-
lar pardon for myself that have used these few
words; and scarcely should have been able to
have used nnyat all, in rrs|>ect of the reverence
which 1 bear to your person and judgment, had
I not l>ccn sonif what relie\ed and comforted bv
the expciiuice. which in my service and access
1 have hud of your continual grace and la
vour.

Hill. 4 James I.

84. The Conviction and Attainder of Robert Lalou, Priest, being
indicted on the Statute of the l(>th ltd. II. cap. 5, commonly
called, The Case of Praemunire in Ireland.
a. d. 1607.

[From Sir John Davtcs's Reports.]

1 HIS Robert Lulor, being a native of this
kingdom, received his orders of priesthood
above 30 vears since at the bunds of one

Richard Brady, to whom the pope had given
the title of bishop of Kilmnre in l.'Ntcr; and
for the space of '20 years toucher Lis authority
tail credit was not mean within the proxincc
of Leinster. He l»ad also made his name
known in the court of Koine, and held intelli-
gence with the cardinal who was protector of
this nation; by means whereof l,e ohtaimd
lot title and jurisdiction or' Yicur-Giiicrnl of
tbeSee A post o lick, within the arch-bishoprick
of Dublin and trie bishopricks of Kild.ire and
Femes. 1 his pretended jurisdicuon, extend-
ing well- nigh over all the province of Leinster,
be exercised boldly and securely m:mv vears
together, i.ntil the proclamation was published,
•hereby all Jesuits and priests ordained by fo-
reign* ut I iority were commanded to depart out
of i hia kingdom by a certain time prefixed.
After which time he began to lurk and to
change his name. Howbcit at last he was ap-
prehended in Dublin, and committed t > piis >n
in the Castle there. Upon his first Kxamiua-
tmn taken bv the lord-deputy himself, he ac-
knowledged that he was a priest, and ordained
by ■ popish titulary bi»ho[) ; that he had ac-
cepted the title and oh* ice of the Pope's Vicar-
General in the three dioceses bef ire -named,
•id had exercised S|uritu;d juri-d'r lion in Joro
cuuekmtue ; and in Miudi y other points he
Maintained and justified the pope's authority.
Only be mid, he wns of opinion that the pope
U bo power to excommunicate or depose his

majesty, because the king ii not of the pope's
religion.

La lor* s first Indictment and Conviction.

The next term after he was indicted upon
the statute of 2 Eliz. enacted in thin realm
njjninst such as should wilfully and advisedly
maintain and uphold the jurisdiction of any
foreign prince or prelate in uny causes ecclesi-
astical or civil within this re .din. By which
statute the tir^t offence of that kind is punished
with loss of goods, and one year's imprison-
ment ; the second offence inenne'h tl e penalty
of the pramunirt ; and the third offence is
made hi^h treason. T'pon this indictment he
was arraigned, convicted and condemned, and
so rested in pr son during the next two terms
without any farther 'question. He then made
petition unto the lord-deputy to be set at li-
berty : whereupon his lordship caused him to
be examined by sir Oliver £t. John, sir James
Fullerrnn, sir ,)< flery Fcntnn, the Attorney and
.Solicitor-General. At fir-»t he made some eva-
sive and indirect answers ; bu: at fast volunta-
rily iui'l truly h«' made this ensuing Acknow-
ledgment or ('on*e-"i"u, v.hich he inn ket down
in writing word for word :■?> he made it, was
ad\i?edly read by him. and ^ul^cribed with bis
own hand, and with the Ir.inds of th«se who
took hi.sevmiinnti'*u : and afurwnrds he con-
tinned it by his oath before the lord-dtputy
and council.

Isiloi's (\)'ifc**inn or Ackinwlnlt;titcvtm
Filter, he doth acknowledge, ih.it be is not
alawiul \icur- General in the dioccse^of Dub-

533] STATE TRIALS, 4 Joiei I. ltiO?.— 77* Case of Pramnnrc in Ireland. [586

lin, Kildnre and 1'crncs ami Ihinkith in his ■ within this, kingdom of Ireland. 2. That by

pretext or colour of tli.iL Lull or brief he was
constituted Vic.ir-Geiit-ral of the see of Rome,
and took upon him the ttile and title of Yicar-
Geiural in the said several dioceses, tt. That

conscience that lie cannot lawfully take upou
him ilit- said oincc — I; cm, lie doth nek no w-
ludgn our sovereign Im'il kins; Jnines, that now
is, to be h.* Liwtul chief and supreme, governor

in all caiiait, as well ecclesiastical as civil, and | he did exercise ecck-i.'Stsciil jurisdiction as
that he is bound in conscience in obey him in ' Yicar-Gtiu-ral uf iho <ie of Koine, by institut-

nll tic said c:iiim> ; and that neither the pope,
nor :-ny other foreign preb^e, prince or poten-
tate, hatti anv power to c-outroul the king in

iny, divirs pen-oas to benefices with cure of
snuU, by iirantinii, dispensations in causes ina-
trimoniul, by pronouncing sentences of divorce

anv cai.^c i -ct Ic.-hiMical or ci\il within this king- i between divers married persons, and by doing
doiu, or anv i.f his majesty's dominions. — Item, all other acta and tiling pertaining to tpisco-
bc doth in his consoieiMv believe, tiiat all hi- pel jurisdicion, within tie said several dio-
shops ordained and made by the kind's autho- ccses, ajjainst our so\er<i£n lord the king, his
tir>i'ity nilhiii any of his dominion* are lawful 1 crown and 012,11 it y royal, :md in contempt of
bishops : and that no bishop mufie by the pope, J his majests, and disherison of ins crown, and
or by any airhni-ity derived from (he pope, , contrary to the form and effect of the statute,
within J lie kiiu'-i doiuini -us, hnth any power or j \c.

authniitv to impugn, disannul or on.troul any ' To the* Fudictinenr Lulor plcided Not Guil-
act (h>t. e by any bi-unp made by his majesty's . ty ; and when the issue w:is to be tried, the
authority a? aforesaid.- -ltcoi, he ; lolesselh I iiHiuc and reputation «>f the mar, and the 11a-
hhnsclr w illia:; and i\udy to ol# y the kin^, a«. ; ture of the caii*c, drew all the principal gentle-
a good and oiiodicut mi ject oiuj'it to do, in ail : men hcth i.f the pale and province1* that were
his lawful commandment*, cither concerning 1 in town to the hearii.i: of the matter. At
Ins function ui pru--;! ood, or any other duty \ which time a stili>tr.uii.iL jmy of the city of
InlnisMn; to a ^'>.,d subject. Dublin behjiswoin lor the trial, and the points

Ai.tr this i Dnr'e^sion made, the state here j of the indiciiuert being opened and set tort h
ha! u » pinp<:o to proceed "nainst him se\eie- i b\ the kind's fc(TJ< ::.t ; ihe i.itoruey-^r-neral
iv, cit;.cr lor h.b cm.tuep' oi taepioclamati-m, ■ thought it net hnp< :line;.t, but \ey necessary,
t.r oi.v'ue ii:' .m^t ih.. i .w : m) as h? had mure . before !.-.• descend* d .■> t'.,'.1 parlicultr evidence
!.be.i\ li..:ii hi fore, an i manv of his fii( rnls a<r:iii.-i. ll.c pri-or.'. r. 1-» i:1.: iin and -ali-fv the
l.t:-l .. it--, iiiii.o hun ; vi o u l!iiiLr i:'m what ■ i.i:.nf" in two pu.nis. 1. What reason moved
t! i. !i .;ij j* j:;~ i'l-nfi s"iion, he "ute^'cd U"fi» ■ us to tiroai.d ti.is indLtnif nt upon the old sta-
tin ir., .1. r !n !. i! nisU ;a:!vnf»wUiinetl il.e kind's , iu:e of l(i Hah. 'Jf ruber than upon *>onie
c;\ ;i ::;id teuij; .j! p i\\e;-, wi.iiuiit any confix • oti»er Inter U\w made since tlie lime of Hen. 8.
Mi- i ••!- .idniitl:'iice ••■ hii MiU.oriiy in sj.iiitu.il ! l2. Wi.at wm'tiie trav cai'sc** of the making
<au>.-. '1 hi- i tin. ieroi!ed imt , f e lord- j nf thi'* lav. of lo Ilic-li. and other formal laws
«i« paly by ..-.::. «:*\ ^a.ti :nen. wi.t) ^m; fii h : .iiiidi^t provix#i-, r.nd *in,h as did appeal t»
iiutu v !*. ;■ i:. .-a ;■, i.i« 1-u-ilthip ihoi:£i. tit, that :hc court of li^iiu- in tho*e tunes, when bot:i
>!:»Ce i.e i id l.'v :>. >\ tin: pain of fn u'L-mnirCy tie prince and people i.f Kn<;laud did f»»r the
by ev r.. :r.iii]i t ,.-:-i*fp"d jimrd.i tioa. a> Vicar- must p;--r ucki.ov.it i!*::' t!>e popo to be lite
fieri-:'-.! to t: t- j.o, ., il.at lie sdio.ld h^- attaint- ; il.iiti . n:h ::>u>o(i», ami only oracle in matters
td ur" . i.at i)tii iii: ; lo uell to n.ai:" Ij.io ; n «»f r: i . '■•:•, and Old to. low J. - doe'riuc ill li'.Of-t
i\..iO|'|. to olli. i- iii U!^ profession, (f .r :ilmo>i •■; '. . ■ point-.' wheieni \e imi»\ d;>sent from
in « ve.v (i.:.ti.». «.. t;.> kir:;_.|oiu iIilii i> a titu- ! .iii.

lary biM. p ■*i"l i- tie I by the pope\ as ;d-»o tliat : 1. I'm* the fir^t peinr, we «ial piirpo^tly fer-
iit i in* tr..;,- .ii'l.-?. t.;:il i: ji:«t uci::.>ion m»^i;t he ' ' '■ ar m pn»cted a^:iin^t iiim upon any latter
taki ii, f i piihi^li ii.r ( .iia—ion a.nd .Ackoiuv- j law. lo tlu- end that such a- v»ere ij.noiant
led.:ii.>-Ui wbiti. I:« !» ■. ! -.••;■:. ilaiily made, .-ilii- ; u.inlit le iiiformed, t *j«it Ihul hi lore Hcnr\ 8.
ed. .tii-l (ui' ii'.i-fo i . i.-.iiii ht'iiiie l! i- lonl-'v.:* b-rn di\ers laws were i..a..e ruaiiist the
fit, |.-tr\ am! r<..:iii:i, wi:o :.a\e hke.«:.M' suh- ' \:- in;;«i.i.n of the I i"h'ip «>f liomc upon lite
».Tihc • '..'.l:.1 nai..i> ii? »'..i!u-*«?e? ihei«of. \ r-Lli.* f,i" the rronu ot i'.= ^hiiid, wdl-niih as

.... . ,, •-!. irii ;.ml scwrc as win ^ta!ur.l< which have

/.x/«.i , /i..'.V.., :■/ ii, .1,1 t .: y..t. |ii h c J. ■ j,.,.-,,:.,!,. !U lairr!llili;: Sli„l jha, iherefore

Hcvusp":" ■* I:. . . ft-.'.u. I J..*-olii. an In- v. o ii.a»ii 1 1 nice tn pnvicd upon a law made

iii: Miien: »•..•- fi . .. d --. ■•: i !ii*ii :•! il':* Iviul**- ■ "= a * ■ i ■ " «h«u 'Ji.ii* x;u> p;u»t, wian the kin*!, lie

Inn- h i.i i=;« :ii- >!.. i..e • ♦ lo i'lCo. 2, cap. .">. !■■..'> *t,i<\ i«n!.nmi:». which ir: :e t!.t law*, and

coc.Vi .:: .j, t;.e-e -t a i ;; 1 i ": it-. "a-. ;• ._.*. w i.;« ij ,i:-i ii'lvrnre: l!.e l".w-, did

1. l"i il he i:.u! i '^« w;:i bail "T '■■...: : a - :••. i.\ u. -r j-nr :\ . 1 1 . ► »\ t:.t- » i:m ip:i::on«> in

ih.i-td ur p.. c i.«. i ... \. . i«-a.; •■« IJ n ■•, .• •*.: n wuc 1 mi;'. i r;:-i I v.d sa the

\i

I .

i\i:i^ ?• i " #"\ n

I-. , i . : l n-'b * . i
<i.'_. .. » i ..\ ■-, I .

i; n

»-. Ml '■

«.'

.!■. 1

*-oiri!!".»: ia .-f...; ;.iir.; i ..!■:::;■ i , j ■ ■ : i* - ui»-
lint i ila:.;;i ih'i.iv .«i:<i l*..\ i At ;.a;J.« ;o
i • ri- ■ i u:e a \ ic.::-t feuer:.l !"iv ti.e ■ «. -.f Koine.
by tne nai.ie -it lie Se Ap<-; :!i. !k. in the

1

U. ■
In l

'is; «-eci»i:l p-.ii'-t. t'-e i"\ii*c* thpl

■ » ■.'.]. o*t k : •■ n i .; .i.e 1'i.j i*h nat'on

:j >. :-:::! ■ ■ .o^L.tnus »..t" the *an;e

n.:i». f. ui'ir ni •:;• ■_ i :.-t : t :'..j!;»r,cc ihnt

c. «-id j

'- . !v iif.'f .11 ni'.v j:;'"i-

ri.r these

bit i ril dioceses of Dublin, KilU.irc and Feme*. ' laws w^rc «i:ulc to :-.]i!-.clJ ■.;:■. i^nii.tain tl*

537] STATE TRIALS, 4 Jamm 1. 1607.— The Case cf Prammire in Ireland. [538

sovereignity of the king, tin* liberty of the peo-
ple, the common law, and the commonweal,
which otherwise hud been undermined and ut-
terly ruined by toe usurpation of the bishop of
Rome.

Fur albeit the kings of r.n&land were abso-
lute emperors within their dominions, ami had
under them us learned a prelacy and clergy, us
valiant und prudent a nobility, us free and
wealthy a commonalty, as anv wan then in
Chr>ieiidom ; vet if we look into the stories
and records of the.»c two imfK-rinl kingdoms,
we shall rind, that if tin >e laws of ( •rovi?iuii
and piemunirf had not been mi*de, they had
lost the name of imperial, and of ki..udoius too,
and hdd been lout; j*iuce mane rrioiitary pro-
vinces to i lit- bidiop of Rome, or rather pait of'
Si. Peier's patrimony in demesne. Our kirirjK
had had i heir scepter* wre-ttd out of their
hand:?, their crown, spurned oil'froni their hr ;i>1>,
their neck* trod upon ; they h.sd been made
lar]uie<t en footuuu to the hi-h.-p of Koine, us
some i'i" the emperors and Trench khms were ;
our prelate1* had been mado his chaplains and
clerk*, our nobility hi* va^als and >rrvant«,
our commons his slaves and villain*, if the-e
act-* of luanumisHon had not freed them, hi
a word, before the mukirg of iIikm- laws, the
flourishing (Town and roiiiin ->n wealth oi' Ki in-
land was in extreme danger to hate brea
brought into uii st ini.-erable servitude and
slavery, under colour of religion and demotion
to the see of Hume. And this v\as not oulv
•wn and frit by the kinir, and much repined »»t
and protested ajiaiii't by the nobility, but the
common'*, the l« ne.nl multitude of the sitbp ct»,
did exclaim and cry nut upm it. For the com-
mons of Ku^lnud mttv be an example into all
other Mihjccs in the world in this, that thev
have evi r been tender and m. ii-.ihle of t lit-
wpjii<;s and di-honour* o.Vcnd unto their kings,
and have c\er contended to uphold and main-
tain their honour and •".•viieijiity. And tin ir
t.ulh and iovalrv h..\e been genr rally Mich.

Li *"i *

though every :»\v hath brrmd.t. forth Mime par-
ticular in >n«!e;> of dtsl vaity. n» no prctcn.ce
ot 2cai or n i'juiii couid ever withdraw the
greater ikih of the Mibim :<• to suhinit tl tin-
Hv« to a lii'-i-^n yoke, no i ot when popery i
was in her hi-i«:h» and exultation ; wlureoVthiV.
act and divei* others of the -nine kind are \
Hear an 1 manifest testimonies. Tor this act of j
16 Rich. 'I. was made at the prayer of 'he mm- '
moils: which pravcr they make not for them-
***he-, iKiiiicr *- i 1- w they lh< i» own *cif-love |
therein, us in mi.er bill* wbiui contain tiuir
piciauie-, but their lo\c ami /i al to t! e I. mi; '
Md I, it crown. When after the Norman ( "on- |
•iWat iky imp. u Unicd thetr king* fur I hi Cie.it .
Charter, ti.ey sought their own hi. cities; and |
m orh'.r lulls pM-ferred Coiumoniy by the com- •
in*i!i> .ijmii-l -hiicf-, escheat op,, puncVM-, or
^* like, li ? y -tck flu ir own pr-..':t ami c n«e.
ilat hero I- esr petition i- to t!i. k.n^, to i :..'■ «.
a km tur tl»; i;« fei»e<« and maliilc nance oj' I:. . '
°*n liouour. "1 !:■ v f,:ii;>!a,::i( that bv l» dl,
Wid proctssts from IwO-ie*. tlie kini: i^ iji.pi .i I

of that jurisdiction which belongs of right to
bis imperial crown; that the king doth lo^c the
service and council of his prelates and learned
men by translations made bv the hi»hop of
Home; that the king's laws are defeated at his
will, the tr en mi re of the realm is exhausted and
exported to enrich nis court ; and that by those
mean* the crown of England, which hath ever
hi on free, and Mihject unto none, but imme-
diately unto (rod, should be submit: ed unto
the hii-hop of Koine, to the utter destitution of
the kiuz and the whole realm; which (rod de-
fv nd, say tla y : and thereupon, out of their e\«
cecdii:£ 7i'U I and fervency, tin-v olli r to live
and die with the kin;: in defend of the liber-
ties of the crown. And best:y, they pray and
require the king by way of justice, to examine
ail the lords in parliament, what they thought
of the^r manifest wrongs and i^urpation^, and
whether they would star.d with tnc kiu» in de-
fence of bis roval libeiti'. s, or no. \\ hi< h the
kine did accrirding to their petition : and the
lord^ spirit oal and temporal did all aiiMvcr,
that flie-e usurpations ot the bishop of Rome
were against the liber tie» of the crown, and
i lint tin- v weie all bound by their abeyance to
f-rand with the kin*!, ard to maintain his honour
and pit rotative. And thereupon it was en-
acted with a full consent of the three estate?,
that such as should purchase in the court of
Koine, or elsewhere, any bulls or processes, or
other things winch ui'^ht touch the kin*; in his
ir- mn f.mi tl-<rnir \* loyal, and Mich as should
htjjiv (hi in into the realm, and Mich aa sdioiild
ieceiv«> them, pulli^i. them, or execute them,
they, il-eir uotarie-. [uoctoi>, uiaiiitainers and
counMlJomt should be all out cm the kinir'» pro-
tection, tiuir lauds and jruodt forfeit el to the
kin*:, tiuir hodiis attached if they u.itihl be
fousid, or else prore*>?> of prawunirv J'm'ias to
he aw aidi d a^niust tl.eiu. lp«m these mo-
tivi ••. ai.d "ith lhi> a'ieciiou and /eal of the
people, was the tl itute of 16 Kich. 'J. made,
whereupon we haie framed our indiciiuci.t.

Now h t us l>>k higher and see, whether the
former l.-ws n a.le by kin1; Kiiw. 1. :;ud kinj*
lvlw. .'!. : L"iiuc! the u^urjiation oi the bi-f-np of
Uoni'-, were not -.'rounded upon ilie like cause
nnd rr .i<i-n, 'lise Mutule of .'"}• Ivdw. ;». cap. J.
e\]»n- "i»"_* tl>e mi.'i h.i. i!-» th;.tdi:l arec by IIieie-5
of I itiitiou, whici: drew tl e bodies 4;/ tl:C
pf-ople, and by iiiuls of pro\i«i «u nnd n -ervu-
lioii life cicv;->ti(".>l hem i'ci -. wi ich ilr« w th'1
wc.iitii >it' the ie.-.lu>, to the (i <. 1 ef lini.i', • :«jI it
dei'hu'f, tl: t bv the-e mean- lb.- ai.cn. :.t i.;%i -,
ciMom* and fias.chi'jes < f th>' reaim ^.tivui;:-
fomi'h'd, tl.i- nvv.ji ol" 0111 >r\e.t • w < i-i the
kin^diii.mi^hi d. a::.! hi* p: i*>oii i..(-i \ ik i..u-. d,
the tri;-'ie and mho of t'. ■ hmi! cured
awav, the *: 1 ji i is of t!:: ;\ : ■. v.1,--': L .: and
iinj'ov . r ■ j !. l!.»- l:i.i'!a.vn «■ l.'-ly ilraih
\-.; !• .; '.>•' '. lit -li" ■■ii, di\ :'ie m ; v .ei-, ho-j Ua-
l.i v, a1, i- .■».!- :•:.■! oll.er i.i.ii.s of charily
in _ '■ 1 li 11.

.\':':i:,'ir ! '.v . o. cap. 1. upon tl e ?;:■:. voin
.■lid ' ! <: ■:•!•■ c •'. |la:nt. (for that l'l r.'-e :s
L.nc c r oi lite great men and *-; iiiii.eiiS

539] STATE TRIALS, 4 James I. 1607.— The Case of Praemunire in Ireland. [540

touching citations and provisions, it is enacted,
that the offenders shall forfeit their lands, goods
and chattels, and their bodies be imprisoned
and ransomed at the king's will.

But in the stut. of 25 Edvr. 3. wherein the
first law against provisors made 25 Kdw. 1. is
recited, there is a larger declaration of these
inconveniences than in the two lust acts before
mentioned. For there all the common* of the
realm do grievously complain, that whereas the
holy church of England was first founded iu
estate of prelacy by the king* and nobility of
that realm, and by them endowed with great
possessions and revenues in lands, rents and
ndvowsous, to the end the people might he in-
formed iu religion, hospitality might be kept,
and other works of charity might be exercised
within the reuhn; and whereas the king and
other founders of the said prelacies were the
right hi II patrons and advowees thereof, and
upon avoidance of such ecclesiastical promo-
tions had power to advance thereunto their
kinsmen, friends, and other learned men of the
birth of that realm, which being so advanced
became able and worthy persons to serve the
king in counsel, and other places in the com-
monweal ; the bishop of Home, usurping the
seignory of such possessions and benefices, did
give and grant the same to aliens, which did
never duel! in England, and to cardinals, which
might not dwell there, as if he were rightful
patron of those benefices; whereas by the law
of England he never had right to the patro-
nage thereof; whereby in short time all the*
spiritual promotions in the realm would be en-
grossed into the hands of strangers, canonical
elections of prelates would be abolished, works
of charily would erase, the founders and true
patrons of churches would be disinherited, ihe
king's council would he weakened, the whole
kingdom impoverished, and the laws and rights
of the realm dc-tioyed. Upon this complaint
it was resolved in parliament, that these op-
pressions and grievances should nut he suffered
in any manner: and therefore it whs enacted,
that the khi" and his mi bj vets should I hence-
forth enjoy the rights of patron a «:e ; that lr*.e
elections of uichhishop*, bishops, and other
prelates elective, should he made according to
the ancient giants of ihe Finn's progenitors and
their founders ; that no bulU of provision -hould
be put in execution, hut that the provimirs
should he attached, lined and ransomed at the
king's will, and withal imprisoned, rill ihev had
renounced the benefits of their hulls, satisfied
the party grieved, ai;d given securities not to
commit the like otlence again.

Now, Mr. Lalor, what think you of these
things ? Did you belit ve that such laws as the-e
had been made against the pope *flO, '«.' .">(),
300 years since? Was king lien. H. the first
prince that opposed the pope's usurped autho-
rity ? Were our proieMauls the first, subjects
that ever complained of tta court of Home?
Of what religion, think you, were the pro-
pounders and enacters of these laws? Were
they good catho licks, or good subjects, or what

were they? You will not say they were pro-
test* nts, for you will not admit the reformed
religion to be so ancient as those times : nei-
ther can you say they were undutiful, for they
strove to uphold their liege lord's sovereignty.
Doubtless the people in those days did generally
embrace the vulgar error- and superstitions of
the Romish church, and in that respect were
papists as well as you. But they had not learn-
ed the new doctrine of the pope's supremacy,
and transceudant authority over kings; they
did not believe he had power to depose princes,
and discharge subjects of their allegiance, to
abrogate the fundamental laws of kingdoms,
and to impose his canons as binding laws upon
all nations, without their consents ; they thought
it a good point of religion to be good subjects,
to honour their king, to love their country, and
to maintain the laws and liberties thereof, how-
soever in other points they did err and were
mis-led with the church of Rome.

So as now (Mr. Lulor) you have no excuse,
no evasion, but your conscience must condemn
vou as well as the law; since the law-makers
in all ages, and all religious papists and pro-
testanta, dt> condemn you: unless you think
yourself wiser than all the bishops that were
then in England, or all the judges, who iu those
days were learned in the civil and canon laws
as well as in the common laws of England.

But you, being an Irishman, will say, per-
haps, these laws were made in England, and
that the Irish nation ga\c no particular con-
sent thereunto, only there was an implicit
consent wrapt and folded up in general terms
given in the statute of 10 Hen. 7. cap. -2ft.
w hereby all statutes made in England are esta-
blished and made of force iu Ireland. As-
suredly, though the first parliament held in
Ireland was after the first law against provisors
made iu England, yet have there been as many
particular laws made iu Ireland ncain^t provi-
sions, citation?., bulls and bre\cs of the court
of Koine, as aie to be found in all the parlia-
ment-rolls in England. What will you say if
in the self-same parliament of 10 Hen. 7. cap.
5. a special law were made, enacting, authoriz-
ing' and confirming in this n aim all tin- statutes
of England made against provisors ; if before
this the like law were made 3*2 Hen. 6 cap. 4.
and Utiaiu 28 Hen. 0. cap. '10. the like ; and
before that, the like law were made 40 Edw.
3. cap. 13. in the famous parliament of Kil-
kenny; if a statute of the same nature were
made 7 Edw. .\. cap. 2. and asetci'i r law than
all there, 16 Edw. 4. cap. 4. that such as pur-
chase ;nv hulls of piovisirn m the court of
Rome, as S'-mi ;•* they have pi*4ili-hed or exe-
cuted the same to the hurt ol any incumbent,
should be adjudged traitors; which art, it it be
not rrpeahd b\ the statute of f|ucen Marv,
may tirrifv Mr. Lalor mure than all the aus
which are before rememl ered ?

Hut let us ascend yet higher, to see when
the pone's usurpation, whuh caused all these
complaints, began m En-land, with what suc-
cess it was continued, and by what degrees it

Ml] STATE TRIALS, 4 James I. 1607.— Ite Co* tf Praemunire in Ireland. [54*

me to tbat height, ihitt it well nigh overtopped
the crown; whereby it will appear whether lie
bmd gained a circle by prescription, by a long
and quiet possession, before ilie making of these
ki«s

The first encroachment of the bishop of
Rome upon the lib? rties of the crown of Eng-
land, was made in the time of king William the
conqueror. For before that time the pope's
writ did not run in England, his bulls of excom-
munication and provision cuine not thither; no
citation, no appeals were made from thence to
the court of Home ; our archbishops did not
purchase their palls there, neither hud the pope
the investiture of any of our bishopricks. For
k is to be observed, that as under the tempo-
ral monarchy of Rome, Britany was one of the
last provinces that was won, and one of the first
that was lost again : so under the spiritual mo-
narchy of the pope of Rome, England was one
of the last countries of Christendom that re-
ceived his voke, and was again one of the first
that did reject and cast it olf. And truly, as in
this, so in divers other points, the course of this
spiritual monarchy of the pope may be aptly
compared with the course of the temporal ino-
naitliies of the world. For as the temporal
fixmarchies were first raised by intrusion upon
other princes and commonweals ; so did this
spiritual prince (as they now stile him) grow to
his greatness by usurping upon other states and
churches. 'As the temporal monarchies, follow-
ing the course of the sun, did rise in the east,
sad settle in the west; so did the hierarchy or
government of the church. Of the four tem-
poral monarchies, the first two were in A sin,
the latter two in Europe ; but the Roman mo-
narchy did surpass and suppress them all. So
were there four great patriarchs, or ecclesiasti-
cal hierarchies, two in the east, and two in'the
west; but the Roman patriarch exalted him-
self, and usurped a supremacy above them all.
And as the rising of the Roman empire was
most opposed of Carthage in Africa, (cmula
Home Carthago ;) so the council of Carthage
and the African bishops did first forbid appeals
to Home, and opposed the supremacy of the
pope. And doth not Daniel's image, whose
Wad was of gold, and legs and feet of iron and
day, represent this spiritual monarchy as well
•» the temporal; whereas the first bishops of
Rome were golden priests though they had but
wooden chalices, and that the popes of later
times have been for the most part worldly and
earthly minded ? And as the northern nations
&rtt revolted from tlie Roman monarchy, and
it last brake it in pieces ; have not the north
•ad north-west nations first fallen away from
the papacy ; and are they not like in the end
to bring it to ruin ?

Bet to return to our purpose. The bishop
of Rome before the first Norman conquest
Wd no jurisdiction in the realm of England,
Hither in the time of the Britains, nor in
the time of the Saxons. Eleutheriu*, the
pope, within le*s than '.'00 years after Christ,
*ritts to Lucius, the .British king, and calls

him God's vicar within his kingdom : which
title he would not have given to that king,
if himself, under pretence of being God's
vicnr-general on earth, had claimed jui isdiction
over all Christian kingdoms. — Pelngius the
monk of Bangor, about the year 400, being cited
to Rome, refused to appear upon the pope's ci-
tation, amriningthat Britain was neither within
his diocese nor his province. — After that, about
the year 600, Augustine the monk was sent by
Gregory the great into England, to convert the
Saxons to the Christian religion. The British
bishops then remaining in Wales regarded not
his commission nor his doctrine, as not owing
any duty, nor having any dependency on the
court ot Rome ; but still retained their cere-
monies and traditions which they received from
the east church, upon the first plantation of the
faith in that island, being divers and contrary
to those of the church of Rome, which Augus-
tine did endeavour to impose upon them. — The
like doth Bcda write of the Irish priests and
bishops. For in the year. 660, he reporteth,
that a convocation of the clergy being called
by king Oswif, the:e rose a disputation between
Colman, one of our Irish saints, then present in
that synod, and Wilfrid a Saxon priest, touch-
ing the observation of Easter, wherein the Bri-
tish and Irish churches did then differ from the
church of Rome. Colman, for the celebration
of Faster used in Ireland, affirmed it was the
same, ' quod beatus cvangclUta Johannes, dis-
' cipiilus spcrialiter a Domino dilectus, in om-
' nibus quibus pra*erat ecclesiis celebrfisse legi-
' tur.' On the other part Wilfrid alledgcd, that
all the churches of Christendom did then cele-
brate Easter after the Roman manner, except
the churches of the BriLiius and Picts, ' qui
1 contra totum orbem' (saith he) ' stulto lubore
' pugnant.' Wliereunto Colman replied, • miror
' quare stnltum laborcin appellas, in quo tanti
' apostoli, qui super pectus Domini rccumbere

* dignus fuit, exeinpla scctamur. Numquid rc-
' verendissimum patrem nostrum Coluinbain et
' ejus successores, viros a Deo dilcctos, divinis

* pagiilis contraria sapuisse nut egisse creden-

* dum est ?' In this disputation or diulogue two
things may be observed : first, that at this time
the authority of the bishop of Rome was of no
estimation in these islands , next, that the pri-
mitive churches of Britany and Ireland were
instituted according to the form and discipline
of the east churches, and not of the west, and
planted by the disciples of John, and not
of Peter. Thus much for the time of the
Britains. For the Saxons, though kins Ina
gave the Peter-pence to the pope, partly as
aim*, and partly in recompence of a house
erected in Rome for entertainment of Eng-
lish pilgrims ; yet it is certain, that Alfred and
Athelstane, Edgar and Edmund, Canutus and
Edward thcCi-ufessor, and di\ers other kings
of the Saxon race, did give all the bishopricks
iu England per annul urn ct baculum, with-
out any otlwr ceremony, as ihe emperor and
French king and or her Chrittian princes were
wont to do. They made also several laws for

543] STATE TRIALS, 4 James I. 1607 — The Case qfPramwiire in Inland. [544

the government of the church. Among others,
St. lAiw.ird begins hit laws with this protesta-
tion, that it is his princely charge, * tit poj«ulum

* doiuiui, et super omnia sanctum ecclesium, re-
' gut et gubeinet.' And king Edgar, in liis ora-
tion to his English clergy, ' ego/ sailh lie, ' Cou-

* stantini, vns Petri gludium habetis : jungamus
' dextras, r tgladium gladio copulcmus, ut tfjici-
' autur extra custia leprosi, et purgetur sunctu-
4 anuin Domini. ' So us the kings of England
with their own clergy did govern the church,
and therein sought no aid of the court of Rome.
And the truth is, that though the pope had then
long hinds, yet he did not extend tltem so fur
as England : because they were full ut' business
Dearer home in drawing the emperor and the
French king under his yoke. But upon the
conquest made by the Norman, he apprehended
the Jii>t occasion to usurp upon tiie liberties of
the crown of England. I'or tlie Conqueror
came in with the pope's banner, and under it
won the battle which got him the garland; and
therefore the pope presumed he might boldly
pluck some llowcrs from it, being partly g:inod
by his countenance and blessing. 1 Icrenpou he
sent two lobule* into England, which were ad-
.milled and received by the Conqueror. With
them he called a svnod of the clergy, and de-
posed old Stigaud, archbibhop of Canterbury,
because be had not purchased ids pnll in the
court of Komi*. He displaced many bishops
and abbots, to place bis Norma sis in their
rooms. And amount the rest il is to be noted,
that the king having earnestly moved Wolstan
bishop of Worcester, being then very aged, to
give op his stall'; his answer w.is, that he would
give up his statl'nnly to him of whom he first
received the same. And so the old man went
to St. Edward** tomb, and there oderc! up his
stali'nml ring, with Ties*; words : ' Of t her, O
' lioly Edward, 1 received my siaifand my ring,
1 and to thee I do ito'.v surrender the same again.'
Which proves, fiat be lore the Xornrin ct in-
quest the king did invent his bishops per unuu-
lum et buculum, as I s.iid before.

Thuswesfe, by thj admi-sion of th" pipe's
legates, the iirst step or r-mry hiade iuro his
usurped jurisdiction in England. Aliu.1, the
kii)£ still retained the ;o*olute pi #wer of in wil-
ing hithnps, and seemed only m u-i* the ad\iee ,
and assist .nice of the legates i.i ecclesia^ticid j
matter*; tot tliat no decree pa^ed or was pin.
in execution with out his roval a*sent there;! uto.
Besides, how far forth h" s;ti united hiir.self to
the pope, it appeared] by a *hort cpi.sil'.' he
wrote in (ise^nry 7, in I ho lorm. ' E\cel'en-
' tisshno -ancue ecclc.-ui! p.istoii, (iriii'irio,

* gratia Dei A^lon^n r *\ et dux No.'iuan-

* ormn Wiiliclmui sniutcui rum imiicitia. li u-

* bcrtus le-jnhu tuu-, relijio^e pater, ad me \e-
' nieiis v\ tua parte, me ndajnniii;, ut t;bi et

* succcs-oriiais tins lidcliiaUm l.icen i->, et de
' pectmia, (jaam autoreport- 9 hum ad iiom m:nn
' ecclesiam mittere suleh*nt, melius eo^ii.uein.
' L'nmn mlmisi, alteram non nd:ni»i. 1 "ideii-
' tatum fa < ere nolui, riec volo ; qui.*, live ego

* promisi, nee uatecessores meos untec^ssoribu*

' tuis id fecisse comperio. Ptcuuki, tribusfere

* anuis, in Galliis me ageine, ne ghgeoier col-

* lecta est. Xuue vero diviua rui-eneordiu zne
' in regimiu mciaii reverso, quod coliectuai est
' per pnrtatnm legatum miUetnr; et qood re-

* liquura est, per legutos Lanfranci archiepis-
4 copi udeli* no»tri, cum opporluuum fueril,

* transmittetur, &c.'

But in tne time of his next successor, king
William Ruius, they attempted to pass one
degree farther, that is, to draw appeals to the
court of Home. For Anselme being made
archbishop of Canterbury, and being at some
difference with the king, besought his leave to
go to Koine, under pretence of fetching his
pall. The king, knowing he would appeal to
the pope, denied him leave to go, uud withal
told him that none of his bishops ought to be
subject to the pope, but the pope liimself ought
to be subject to the emperor; and that the
kini' of England had the same absolute hber-
ties in his dominions as the emperor hud in the
empire; and that it was un ancient custom
ami law in England, used time out of mind
before- the Conquest, that none might appeal
to the pope without the king's leave ; and that
he that breaketh ibis law or custom doth vio-
late the crown and dignity royal, and he that
violates my crown, saith he, is mine enemy,
and a traitor. ' How answer you this?' quoth
the king. ' Chribt himself answers you,' saith
tijj archbishop, c tu es Petri's, ct super banc
' petram, \c.' wherewith the king was nothing
saii^tied. And thereupon Anselme departing
out of the realm without licence, the king seized
his temporalities, and became so exasperate
and implacable towards the bishop, as be kept
him in perpetual exile during his reign ; albeit
great intercession were made for Ids return, at
well by the pope as the king of Iraucc.

In the time of the next king, Hen. 1, though
lie were a learned and a prudent prince, yet
they s-.u-jdit to gain a farther point upon him,
and to pluck a ilower from his crown of greater
value, namely, the patronage and donation of
bisbopricks and all other benefice* ecclesiasti-
cal. Tor A lifeline being revoked and re-es-
tftbUsiitd in the see of Canterbury, the bisliop-
ricks of Salisbury and Hereford led void,
which the kint; botowed on two of Ins chap-
lains, lint Anselme their metropolitan did re-
fuse to consecrate them, sj as the archbishop
of York was fain to perform that oiiice, who
with the chief of the L.nnli«h cicrgv stood with
the l.iu<:, and withstood Anselme. Hereupon
the Ki'ir it ;j'iii" s him to do his homage ; the
hi-hop deme* it. 'J he kinv: demands of him
whether ilie patronage ami in\estiture of all
li buji.c'rs were net his r<i:bttnl inheritance.
1 be b'^liup s'id it was not his risihl ; because
pope 1'rii.Jii had 1. trlv male u ikrrcf, that no
i »v |»tfi-M n should _ivi: any i re!: siastiral bene-
fice. |IIi?lor. .lornalon^is M. S. in Arciiiv.
Hob. <_ otton, Ei|. Aur.] Thi« was the first
question, that e\<i was made, touching the
king nf lnjland s right of patronage and dona*
tion ol bishopiitks within his dominions. Thift

545] STATE TRIALS, 4 James L 1G07.— '/for Case qfPramunire in Ireland. [546

new question caused many messages and em-
bassages to Rome. At last the king writes
|rfainly to the pope, ' notum habeat sauctitas

* vestra, nuod me ^ ivente, Deo auxiliante, dig-
' uitatc< et umis regni nostri nou minuentur ;

* et *i ego, quod absit, in t.uitn me directionc
4 ponercm, magnates mci, into torius Alalia;
' populus, id nulla modo paterctur.' Besides,
William de Warrenast, ihe kind's procurator
in the coutt of Rome, told the pope, that the
Ling would rather lose his kingdom than he
would lose the donation of bishopricks. The
pope answered, ' Know you precisely, sir, I
' speak it before God, that for the redemption

* of my bead I would not suffer him to enjoy it/

After this Auselme bein" received into the
king's favour, in a synod ot the English clergy
bokLen at London in the year 1107, a decree
was made, * cui anuuit rex Henricus,' saith
Matth. Paris, ' that from thenceforth,' ( nuu-
4 qnam per donationem baculi pastoral is vel
1 annuli quisquam de episcopatu vel abbathia
1 per regem, vel quamlibet laicam mnnum, in-

* vestiretur in Anglis.' In recom pence where-
of the pope yielded this favour to the king, that
thenceforth no legate should be sent from the
pope's side into England, unless the king re-
quired it ; and that the archbishop of Canter-
bury for the time being should be for ever U-
t>atus natut ; and Auselme, for the honour of
bis see, obtained, that the archbisliop of Can-
terbury should in all general councils sit at the
tope's foot, ' tanquam alt en us orbis papa.'
Notwithstanding, as the succeeding popes kept
aot their promise touching the sending of le-
gates, so this self-same king, after the death of
Auselme, broke the decree touching the inves-
titure of the bishops. For he gave the archhi-
•hoprick of Canterbury to Rodolph bishop of
London, saith Matth. Paris, * et ilium per an-
' nulum et pastorale! n baculum investivir ;' as
before be hod invested Williehnum Gi fiord in
the bisboprick of Winchester, * contra uovi
1 concili statuta,' as the same author reporteih.

The times of the next succeeding king, Ste-
phen! were full of civil distentions, which made
the land well-nigh waste, so as St. Peter's suc-
cessor could not take any fish in such troubled
waters. Vet during this king's reign they won
ibit point of jurisdiction, which the v attempted
to gef , but failed thereof, in the time of king
William Kufus; namely, that appeals might
be made to the court of Rome. For in a
synod at Loudon summoned by Henry bishop
nf Winchester, the pope's legate, it wasderrced
that appeals thould be made from provincial
councils to the pope. Before that time * ap-
1 prllntiones in usu non ernnt,' saith a in<>iik of
Ait lime, 4 donee Hcnricus Winton. episco-
1 pus mnlo fcno, duin hiatus esset, t rudeliter
# latriiHt.' Tli ins did the pope usurp three
Wain points of jurisdiction upon three several
kings after the Conquest, for of William Kufus
he could win i:o'uing, namely, upon the Con-
queror, the sending of legate^ or commissioners
to bear and determine ecclesiastical causes ;
apon Hen. l. the donation and investitures of

VOL. !!.

bishopricks and other benefices; upon king
Stephen, the appeals to the court of Home.

Now are we come to king Henry 2, in whose
time they made a further encroachment upon
the crown, whereby they endeavoured to make
him but half a king, and to take away half his
subjects, by exempting all clerks from secular
power. Hereupon rose that long and great
contention between Henry 2, and Thomas
Becket, which on Reckei's behalf may he
rghtly termed rebellion and treason ; the just
cause and ground whereof was the same that
made the late difference between the pope and
the Venetians. For a priest had committed a
foul murder ; and being thereof indicted and
convicted, prayed the benefit of his clergy ;
which being allowed unto him, he was deliver-
ed to the bishop of Salisbury, beiug his ordi-
nary, to make his purgation ; which the mur-
derer failing to do should by the law have been
degraded, mid delivered back to the secular
power. But the bishop, contemning the law
of the land, to enlarge the liberties of the
church, sent his prisoner to Thomas Beckct
then archbisliop of Canterbury, who shifted
him into an abbey, and so rescued him from
the capital punishment he had justly deserved.

This gap of impunity being once opened, the
clergy grew so outrageous, as the king wa9 in-
formed of a hundred murders committed by
clerks, and vet not one of them executed for
the same ; for thai the* archbishop had protect-
ed them all after the same manner. For this
the king was justly incensed against the arch-
bishop, who justified his doing herein. Where-
upon a common council as weil of the bbdiops
as of the nobility was called, wherein they did
revive and re-establish the ancient laws and
customs of the kingdom for the government
of the clergy, and ordering of causis cccloins-
tical, whereof these were the principal heads or
articles :

The Constitutions of Claringdvn.

1. That no bishop nor clerk should depart
the realm without the king's licence ; and that
such as obtained licence should give securities,
that they should procure no hurt or damage to
the king or realm during their absence in
foreign parts. — 2. That all bishopricks and
abbeys being void should renin in in the king':,
hands as his own demesnes, until he had chosvii
and appointed a prelate thereunto ; and that
every such prelate should do his homage to the
king before he were admitted into the place. —
3. That appeals should be made in enures ec-
clesiastical in this maimer: from the arch-
deacon to tin.* ordinary, from the ordinary lo
the metropolitan, from the metropolitan to the
king, and no farther. — A. That Peter-pence
should be paid no m >re to ihe p>pe, but t«» the
king. — .%. That if any clirk hhoiih! commit
felony, he should be h:»n:ed ; if treason, he
should be drawn and quartered. — 6. Thnt it
should be adjudyorl high-treason to hriug in
bulls of excommunication, whercb\ the realm
should be cursed .—-7 • That no decree should

547] STATE TRIALS, 4 James I. 1C07.

he brought from Lite pope to be CNecuted in
England, upon pain of imprisonment and con-
liscalion ol goods.

To tucse an (I other Constitutions of (lie like
nature made at Clarin^don, all the rest ot* the
bishops and gre.it men did subscribe, and
hound themselves by oath to ohseive the same
absolutely. Only the archbishop would not
snhscribe, utul swear, but with u saving, * salvo
4 suo ormiie et houorc sanctre ecclcsia:.* Yet at
last. Ik- wa<> content to make the like absolute sub*
script ion Hiidoalh as the rest had done; butpre-
bentlv he repented, and to shew his repentance
suspended hi instil from celebrating mass, till he
Lad received absolution lVoin the pope, 'lhen
he began to maintain and justify the exemption
of clerk* again ; whereat the king's displeasure
was kindled anew; and then the archbishop
once a^ain promised absolute obedience to the
kind's laws. (See the fickleness and muta-
bility of your constant martyr.) The king, to
bind fast this slippery Pro ten-, called a parlia-
ment of the bishops and barons; and sending
for the roll of those laws, required all the
bishops to set their seals thcieunto. They all
assented but the archbishop, who protested he
would not sit his ical, nor give nllo-.vauce to
those law?. The knit:, being highly niVended
with his lebclhoua demeanour, repined the
barons in parliament to give judgment ol him,
who being his siibp ct would not be ruled bv
l»is law* ; * cito facile mihi jusiilium dr illo,
' <pti homo mens ligms est, it Mare juri in
•" curia men reeusat/ \\ hereupon the barons
proceeding against him, and lie ng ready to
emdemn hiui ; * 1 prohibit you,' miuth the
uuhhishop, * i.t the name of Ahnighu (iod to
' proceed ugniiM me ; tor 1 have appealed to
* the pope :' and so departed in# contempt of
tliat high court, ' omnibus cuiiiumiihiH,' saith
Hovcdcn, ' (juo prngrideris prnditnr ? «\-pecta
1 ct audi judicium tuum.' Alter tlu<> lie lurked
secretlv near t!ie sea-shore ; and chungm" his
apparel ami mime . like a Jesuit of these times,)
he took shipping witU a pur| use to lly to Rome.
But his p.issigc being hiniered bv contrary
wind-, he was summoned to a pailiuinent at
Notthcimptu:), where he made default wilfully ;
fi.r which contempt, his temporalities wen
seized, and his body being attached, he was
a barged with so great an account to the king,
as that he v\a* found in arrear iiu,000 marks,
and committed lo prison ; w hence he found
means to c>c:ipc shortly after, und to pass out
of the icaliii to Koine. He \\.is no sooner
gone, but the king sends wr is to all the shrnli'-.
in England to ariach the bodies of all Mich as
madu any appeals to tin court of Koine. Here-
upon many mi s*;e;es and letters pushing to and
fro, all the MiUrauans of ('antcrbiiry join in a
letter to the pope, wherein ihcy eomJemn the
fugitive archbishop, and justify the kiuu's pro-
ceeding*. I 'poll this lb; pope sends two
legates to the king, being then in Koimnndy,
to meSialc for the an.hl.i*!iop. They, with the
mediation of the Fieich king, prevaled so far
with king Henry, a* that he wut plc-scd to a<>

— Tfic Case of Prctmunire in Ireland. [54S

cept his submission once again, and promised
the king of France, that if he would be obe-
dient to his laws, he should enjoy as ample
liberties as any archbishop of Canterbury ever
had ; and so sent him into England with re-
commendation unto the young king his sou,
then lately crowned ; who, hearing of his com-
ing, commanded him to forbear to come to his
presence, until he had absolved the archbishop
of York and others, whom he had excommuni-
cated for performing their duties at his corona-
tion. The archbishop returned answer, that
they had done him wrong in usurping his office ;
yet if they would take a solemn oatli to become
obedient to the pope's commandment in aH
things concerning the church, lie would absoUe
them. The bishops, understanding this, pro-
tested they would never take that oath, unless
the king willed them so to do. King Henry
the father, being hereof advertised into France,
did rise into great passion and c holer, and in
the hearing of his so rvanis uttered words to this
effect ; * Will no man revenge me of mine ene-
mies ?' Whereupon the four gentlemen named
in the stories of that time passed into England,
and first moving the archbishop lo absolve the
bishops whom he had excommunicated for per-
forming their duties at the young king's coro-
nation, and receiving a peremptory answer ol'
denial from the archbishop, they laid violent
hands upon him, and slew him ; for which the
king was fain uot only to suffer corporal pe-
nance, hut in token of his humiliation to kiss
the knee of the pope's legate. And this is the
abridgment of Meckel's troubles, or rather treft-
»oiih, tor which he was celebrated for so famous
a martyr. — And thus you see by what degrees
the court of Rome did within the space of 100
and odd years usurp upon the crown of Eng-
land four points of jurisdiction, viz. First, send-
ing out of legates into England. .Secondly,
drawing of appeals to the court of Home.
Thirdly, donation of bishopricks and other ec-
clesiaMicid benefices. And fourthly, exemption
of clerks from the secular power. And you
see wilhal how our kings and parliaments have
j from time to time opposed and withstood this
unjust usurpation.

Now then the bishop of Rome having claimed
and well nigh recovered full and side juris-
diction in nil causes ecclesiastical, and over all
i persons ecclesiastical, with power to dispose of
; all ecclesiastical benefices in England, whereby
I he had upon the matter made an absolute cou-
1 ipiest of more than half the kingdom, (for every
', one that could read the psalm of Misvrert was
i a clerk, and the clergy possessed the moiety ot*
{ all temporal pos.-e^ions) there remained now
! nothing to make him owner and proprietor of
: all, but to ;et a surrender of the crown, and to
! make the king his fanner, and the people
, his villains, which he fully accomplished and
! brought ro pass in the times of king John and
1 of llenrv 3.

{ The quarrel between the pope and king John,
which wrested the sceptre out of Ids hand, and
in the c ud brake his heart, began about the

549] STATE TRIALS, 4 James T. 1607.— The Cum qf Ihctmunire in Ireland. [550

election of the archbishop of Canterbury. I
call it election, nnd not donation or investi-
ture ; for tlie maimer uf inventing of bishops by
the staff nnd ring after the time of king Men. 1.
wis nut liny more used, hut by the king's
licence they were ranonicnlly elected, and
being elected, the kins; gave his royal as-sent to .
their election, and by restitution of their tem-
poralities did fully invest them. And though
i his course of election begun to be in use in !
the time of Rich 1. and lien. 2. yet I find it
not confirmed by any constitution or charter
before the time of king John, who by his
charter dated the 15th of January, in the 16th
rear of his reign, granted this privilvdge to the
church of England in these words, \ iz. ' Quod

* qunliscuuque consuetudo temporibus pnr-de-

4 cessoram nostrorum hactcnus in ecclesin An- '
4 gticaua ftierit obseTvatu, ct qnicquid juris

* nobis liactenus vindicavcriinus, fie ca?tero in |
4 universis ct singulis ccclesiis ct monu>teriis, :

* catlicdridibus et couvcntuulihus, totius regni ,

* Augluv, libera; sint in perpetumn elcctiones

* quorumcunque pnelatorum, majorum et mi- |
1 norum : sulvfi nobis et luurodibus nostris cus- |

* todiii ecclesiarum et monnsteriorum vacan-

* hum quae ad nos pertinent. Proiuitiiiuns
1 etiam, quod nee imped iemus nee irnpediri

* pennittemus per inini>tros nostras, nee pro-

* curahitnus, quin in univcrsis et singulis monns-

* terns et ecclesiis, postquam vacuerint prada-

* turap, qucmcuuiquc voluerint libcre sibi pra>

* ticiant electores paslorum, petita tamen a
4 nobis prius et lueredihus nostris liccntia eli-
'pendi, qnnm non dencgahimus nee diflcrcmus.
4 Et similiter, po>t celebratam eleciinnem,

* nosier requiratur assensus, qucm non dencga-
' biious, nisi adversus candem rationale propo-
1 Mierimus, et legitime* probavcrimus propter
1 quod non debemus consentire, tkc.'

But to return to the cause of his great quar-
rel with the pope. The see of Canterbury
being void, the monks of Canterbury suddenly
and secretly without the king's licence elected
one Jteii^nold their sub-prior to be archbishop.
»bo immediately posted away to be continued
by the pope. But when he cumc there, the
pope rejected him, because he came not iihtoiii-
uended fro.n the king. Hereupon the monks
made suit to the king to nominate some fit
person to whose election they minht proceed.
The king commends John Gray bi>hop of Nor-
wich, his principal counsellor, who was after-
wards Lurd justice of this kingdom, who with a
fiiil consent w.is elected by them, nnd after-
wards admitted and fully invested by the king.
IheM* two elections bred such a controversic
as none miuht determine but the pope, w ho
U«c a thort rule in the case ; for he pro-
nounced both elections void, and caused some
of die monks of Canterbury, who wore then
present in the court of Home, to proceed to
the election of .Stephen Langton, lately made
cardinal at the motion and suit of the French |
king: who being so elected was forthwith con-
finned and consecrated bv the pope, and re-
commended to the king of England with a flat- •

i

tering letter, and n present of four rings set
with precious stones, which were of great value
and estimation in those days. Ilowbeit, tin*
king more esteeming this jewel of the crown,
namely, the patronage of bishopricks, returned
a round and kingly Answer to the pope, thai
inconsiderately and rashly he had cassed and
made void the election of the bishop of Nor-
wich, and had caused one Langton, a man to
him unknown, and bred up and nourished
amongst his mortal cncmic«, to he consecrated
archbishop, without any due form of election,
nnd without his royal assent, which was most
of ail requisite by the antient laws nnd customs
of his realm, limt he marvelled much, that
the pope himself and the whole court of Home
did not consider what a precious account they
ought to make of the king of England's friend-
ship, in regard that his one kingdom did yield
them more profit and revenue than all the other
countries on this side the Alps. To conclude,
he would maintain the liberties of his crown
to the death, he would restrain nil his subjects
from go in*! to Home. And sim*e the arch-
bishops, bishops nnd other prelates within his
dominions, were as learned and religious as auv
other in Christendom, his subjects should be
judged by them in ecclesiastical mat'ers, and
should not need to run out of their own
country to beg justice at the hands of stran-
gers.

. Hut what followed upon this ? The pope,
after a sharp reply, sendeth forth a bull of ma-
lediction against the king, and of interdiction
against the realm, whereby all the churches in
England were shut up, the priests and religious
persons u ere lot bidden to use any liturgies or
divine service, to marry, to bury, or to perform
any Christian duty among the people. This
put the Uiiii! into such a rage, that he on the
other part seised the temporalities of all bk>hops
and abbots, and confiscated the goods of all
the clergy. Then doth the pope by a solemn
sentence at K-niie. depose the king, and by :i
bull sent into England dischargeth his subjects
of their ullrgiance, and by a legate sent to tiki
king of France g:ive the kingdom of England
to him and hi* Mjcccss.mrs for ever.

These things brought such confusion and
misery to all estates and degrees of people in
England, as the kint! became odious to all his
subject*, as well to the laity as to the clergy.
Eur as the bishops and religious people cursed
hiin abroad ; so the baron* took arms agaimt
him at homo, till with much hloo.Uhed thev
forced him, bv i*ranfin*i the (iruat Charter, to
restore king Edward's laws, contaiuiim the an-
cient liberties of the subjects of England.
The pope beiiiL' a spectator of this tragedy,
and seeing the kinu in so weak and desperate
estate, sent a legate to cotnfott him, and tn
make a reasonable motion unto him ; to wit,
th.it he should surrender and cive np his ctovmi
and kingdom to the pope, which should be le-
gi anted unto him a^ain to h-dd in ft e-farm and
\ns>nlage of the church of Home: and th-.i
thereupon the pope would bless hiin ami hi«

551] STATE TRIALS, 4 James L 1607.— The Que qfPnemunin in Ii-eland. [663

realm again, and curse bis rebels and enemies
in sucb sort, as he should be better established
in his kingdom then he was before. In a word,
this motion was presently embraced by that
miserable king, so as with his own hands he
gave up the crown to ihe pope's legate, and by
an instrument or charter sealed with a bull or
seal of gold, he granted to God and the church
of Home, the apostles Peter and Paul, and to
pope Innocent the third and his successors, the
whole kingdom of England, and the whole
kingdom of Ireland ; and took hack an estate
thereof by an instrument scaled with lead,
yielding yearly to the church of Home over and
above the Peter-pence 1,000 marks sterling,
viz. 700 marks for England, and 300 marks for
Ireland, with a flattering saving of all his liber-
tics and royalties. The pope had no sooner
gotten this conveyance, though it were void in
law, hut he exconimimicatctli the barons, and
repeals the Great Charter, ailiriniug that it
contained liberties too threat for his suhjects;
calls the king his vassal, and these kingdoms
St. Peters patiimouy ; grants a general hull of
provision for the bestow ing of all ecclesiastical
benefices, and takes upon him to be absolute
and immediate lord of all. And thus, under
colour of exercising jurisdiction within these
kingdoms, the pope, by degrees, got the very
kingdoms themselves. And so would he do at
this day, if the king would gi\e way to his ju-
risdiction.

But what use did the pope make of this
grant and surrender of tlie crown unto him ?
What did he gain by it, if our kings retained
the profits of their kingdoms to their own use ?
Indeed we do not find, that the fee-farm of
a thousand marks was ever paid, but that
it is all run in arrear till this present day.
For the truth is, the court of Home did
scorn to accept so poor a revenue as a thou-
sand marks per annum out of two kingdoms.
But after the death of king John, during all the
reign of lieu. 3, his son, the pope did not
claim a seigniory or a rent out of England and
Ireland, but did endeavour to convert all the
profits of both lands to his own use, as if he
had beeu seized of all in demesne. For who-
soever will read Matt. Pari* his story of the
time of king lien. 3, will sny these things spo-
ken of before were lnit the beginnings of evils.
For the exactions and oppressions of the court
of Home were so continual and intolerable, as
that poor monk, who lived in those times,
though otherwise he adored the pope, doth call
England Bakium's ass louden, beaten, and en-
forced to speak ; doth c;ill the court of Rome
Charybdis and Barathrum avar:tia\ the pope's
collectors hurpys, and the pope hnn>elf a step-
father, and the church of Home a stepmother.
lie sheweth, that two third parts of the land
being then in the hands of church-mcu, the
entire profits tlicreof were exported to enrich
the pope and the court of Jtome : which wa*
done lor the most part by these two ways- aud
means. First, by conferring the best ecclesi-
astical benefices upon Italians, and other

strangers resident in that court, whose fanners
and factors in England took the profits, turned
them into money, and returned the money to
Rome. Secondly, by imposing continual taxes
and tallages, worse then Irish cuttings, being
sometimes the tenth, sometimes the fifteenth,
sometimes the third, sometimes the moiety of
all the goods both of the clergy and laiety,
uuder colour of maintaining the pope's holy
wars against the emperor and the Greek
church, who weio then said to be in rebellion
against their lady and mistress the church of
Rome. Betides, for the speedy levying and
safe return of these moneys, the pope had his
Lombards and other Italian bankers and
usurers resident in London and other parts of
the realm, who o fie red to lend and disburse the
moneys taxed, and return the same by ex-
change to Rome, taking 6uch penal bonds, the
form whereof is set down by Matt. Paris, aud
such excessive usury, as the poor religious
houses, were fain to sell their chalices and
opes, aud the rest of the clergy and laiety had
their backs bowed and their estates broken
under the burthen. Besides, the pope took
for perquisites and casualties the goods of all
-clerks that died intestate, the goods of all
usurers, and all goods given to charitable uses.
Moreover he had a swarm of friars, tlie first
corrupters of religion in England, who per-
swaded the nobility aud gentry to put on the
sign of tlie cross, and to vow themselves to
the holy wars ; which they hud no sooner
done, but they were again perswnrled to receive
dispensations of their vows, and to give money
for the same to the church of Rome. I omit
divers other policies then used by tlie pope's
collectors to exhaust tlie wealth of the realm,
which they affirmed they might take with as
good a conscience as tlie Hebrews took the
jewels of tlie Egyptians. Briefly, whereas the
king had scarce means to maintain his royal
family, they received out of England 70,000/.
sterling at least yearly, which amounteth to
210,000/. sterling of the monies current at this
day. Besides, they exported 6,000 marks out
of Ireland at one time, which tlie emperor
Frederick intercepted. Lastly, the king him-
self was so much dejected, as at a royal feast
he placed the pope's legate in his own chair of
estate, himsclt sitting on his right hand, and
the bishop of York on his left, ' non sine mul-
' torum obliquantibus oculi*,' sail h Matt. Paris.
Thus we see the effect of the pope's pretend-
ed jurisdiction within the dominions of die
king of England. We see to what calamity
and servitude it then reduced both the prince
and people. Was it not theiefore high time
to meet and oppose those inconveniences ? As-
suredly if king Edward 1, who was tlie son
and heir of Hen. 3, had inherited the weakness
of his father, and had not resisted this usurpa-
tion and insolency of the court of Rome, the
pope had been proprietor of both these islands,
and there liad been no king of England at this
day.
But king Edward 1, may well be stiled ' vra-

553] STATE TRIALS, 4 James I. 1607.— Xk Cent qf Pramunirc in Ireland. [554

' dex Anglicat libertatis,' the Moses that deli-
vered his people from slavery and oppression :
and as he was a brave and victorious prince, so
was he the lest pater patritc that ever reigned
in England since the Norman Conquest, till
the coronation of our gracious sovereign. At
the rime of the death of his father he was ab-
sent in the war of the holy land, being a prin-
cipal commander of the Christian army there,
so as he returned not before the second year of
his reign. But he was no sooner returned and
crowned, but the first work he did was to
shake off the yoke cf the bishop of Rome. For
the pope having then summoned a general
council, before he would license his bishops to
repair to it, he took of them a solemn oath,
that they should not receive the pope's bless-
ing. Again, the pope forbids the king to war
against Scotland ; the king regards not his pro-
hibition : He demands the first-fruits of ecclesi-
astical livings ; the king forbids the payment
thereof unto him. The pope sendeth forth a
general bull prohibiting the clergy to pay sub-
sidies or tributes to temporal princes: a tenth
was granted to the king in parliament, the
clergy refused to pay it : the king seizeth their
teroporaliits for their contempt, nnd got pay-
ment notwithstanding the pope's bull. After
this be made the statute of Mortmain, whereby
lie brake the pope's chief net, which within an
r.ge or two more would have drawn to the
inarch all the temporal possessions of the king-
dom, &c. Again, one of the king's subjects
brought a bull of excommunication against
another : the king commandeth lie should be
executed as a traitor, according to the ancient
law. But because that law had not of long
tine been put in execution, the chancellor and
treasurer kneeled before the king, and obtained
grace for him, so as he was onely banished out
of the realm. And as he judged it treason to
bring in bulls of excommunication; so he held
it a high contempt against the crown to bring
ia bulls of provision or briefs of citation ; and
accordingly the law was so declared in parlia-
ment 25 Ed. 1, which was the first statute
Bade against Provisors : the execution of which
law, during the life of king Ed. l, did well-nigh
abolish the usurped jurisdiction of the court of
Rome, and did revive and restore again the an-
cient and absolute sovereignty of the king and
oown of England.

His successor, king Edward 2, being but a
weak prince, the pope attempted to usurp
anon him again : but the peers nnd people
withstood his usurpation. And when that un-
happy king was to be deposed, amongst many
articles framed against him by his enemies,
tbb was one of the most heinous, that he had
given allowance to the pope's bulls.

Again, during the minority of king Ed. S. nnd
after that iu the heat of the wars in France, the
pupe sent many briefs and bulls into England ;
and at last presumed so far, as that he gave an
Italian the title of a cardinal in England, and
withal by his bull gave him power to bestow all
promotions as they should fall

void from time to time. This moved the king
and the nobility to write to the pope to this
effect. ' We and our ancestors have richly en-

* dowed the church of England, and have found-
' ed abbeys and other religious houses for the
' jurisdiction of our people, for maintenance of
( hospitality, and for the advancement of our
' countrymen and kinsmen. Now you provide
' and place strangers in our benefices, that come
' not to keep residence thereupon ; and if they
' come, understand not our language; and some
' of them are subjects to our mortal enemies ;
( by reason whereof our people are not instruct-

* ed, hospitality is not kept, our scholars are un-
( preferred, and the treasure of the realm is ex-
' ported.' The pope returneth answer, that
the emperor had lately submitted himself to the
church of Rome in all points, and was become
tlie pope's great friend ; and in menacing man-
ner advised the king of England to do the like.
The king replies, that if the emperor and French
king both should take his part, he was ready to
give battle to both in defence of the liberties of
his crown. Hereupon the several statutes
against Provisors before recited were put in ex-
ecution so severely, as the king and his subjects
enjoyed their right of patronage clearly : and
their exemption of clerks took no place at all ;
for that the abbot of Waltliara and bishop of
Winchester were both attainted of high con-
tempts, and the bishop of Ely of a capital of-
fence, as uppcareth in the records of this king's
reign. Yet during the nonage of Rich. ?. they -
beuan once again to encroach upon the crown,
by sending legates and bulb and briefs hi to Eng-
land, whereof the people were so sensible and
impatient, as that at their special prayer, this
law of 16 Rich. 2. (whereupon our indictment
is framed) was enacted, being more sharp and
penal than nil the former statutes against pro-
visors. And yet against this king, ns against
Ed. 2. it was objected at the time of his depri-
vation, that lie had allowed the pope's bulls, to
the enthralling of the crown.

After this in the weak time of king Hen. 6.
they made one attempt more to revive their
usurped jurisdiction by this policy. The com-
mons had denied the king a subsidy when he
stood in great want of moneys. The archbishop
of Canterbury and the rest of the bishops offer-
ed the king a large supply of his wants, if ha
would consent that all the laws against provi-
sors, and especially this law of 16 Rich. 2. might
be repealed. But Humphry duke of Glouces-
ter, who had lately before cast the pope's bull
into the fire, did likewise cause this motion to
be rejected. So as by special providence these
laws have stood iu force even till this day in
both these kingdoms.

The. Evidkme against La lob.

Then the Attorney General descended to the
Evidence, whereby he proved fully all the parts
of the Indictment. First, it was proved by
Trior's own confession, upon several examina-
tions taken before the lord deputy and lord
chancellor, and other*, that he had accepted the

4W] STATE TRIALS, 4 James I. 1G07.— The Case qf Prammire in Ireland. [55G

office and title of vicar general in the dioceses
of Dublin, Kildare, ana Femes, by virtue of
the pope's bull. Secondly, it appeared by the
copies of sundry letters found among his papers
at his apprehension, that he stiled himself the
pope's vicar, in this form, ' liobcrtus Dublinien.
* et Kildaren. et Fernen. diceces. vicarius apos-
4 tolicus.' Thirdly, there were produced the
copies of divers acts and instruments, written
for ttie most part with Lalor's own hand, some
of institutions of popish priest* to benefices,
others of dispensations with marriage within the
degrees, others of divorces, others of dispensa-
tions for non-payment of tithes. Whereby it
was manifestly proved that he did execute the
pope** bull, in usurping and exerci-ing episco-
pal jurisdiction, us vicar general of the see
apostolick, within the dioceses before named.

To this evidence he made a three-fold answer.
First, that he was no suiter for the office of
ricar general, but it was imposed on him, and
he accepted virtute obedient itt, only t> obey his
superiors. IS ext, that he did exorcise the office
of vicar general in foro atateientitr taninm, and
not in foro juJicii. And lastly, that those co-
pies of institutions, dispensations and divorces,
were many of them written * ith his man's hand,
as precedents of such acts and instruments,
without his privity or direction. Hereupon sir
James Ley, chief justice, told him, that he could
uot well say, that he accepted that unlawful
office virtute obedient iay for there was no vir-
tue in that obedience ; that he owed au obedi-
ence to the law and to the king, who is the true
superior and sovereign over all his subjects, and
hath no peer within his dominions ; and that
the superiors whom he meant nnd intended
were but usurpers upon the king's jurisdiction,
nnd therefore this excuse did aggravate his con-
tempt, in that it appeared he had vowed obedi-
ence to those who were apparent enemies to
the king and his crown. And though it were
manifest that he exercised jurisdiction in foro
judicii, (for every institution is a judgment, and
so is every sentence of divorce) yet were his
offence nothing diminished if he had executed
his office of vicar general in foro conscientitt
tantitm ; for the court of man's conscience is
the higlicst tribunal, and wherein the power of
the keys is exercised in the highest degree.

Hereunto the Attorney General took occa-
sion to add thus much, that Lalor had commit-
ted these high offences, not only, against the
law, but against his own conscience, and that he
was already condemned in foro conxcientitr.
For that he upon his second examination had
voluntarily acknowledged himself not to be a
lawful vicar general, and that he thought in his
conscience he could not lawfully take upon him
the said office. He hath also acknowledged
our sovereign lord king James to be his lawful
chief and supreme governor, in all causes, as
well ecclesiastical 1 as civil ; and that he is in
conscience bound to obey him in all the said
causes, &c. as it is contained in his Acknow-
ledgment or Confession before set down : which
being slit wed forth by tlic Attorney General,

the court caused it to be publickly rend ; and
thereupon demanded of Lalor, i: that were not
his free and voluntary Confession signed with
his own hnnd, and confirmed by his oath before
the lord deputy and council. He was not a
little abashed at the publishing of this acknow-
ledgment and confession in the hearing of so
many principal gentlemen, to whom he had
preached a contrary doctrine ; , therefore, said
he, the shewing; forth of this confession is alto-
gether impertinent and besides the matter.
Howsoever, he could not deny but that he made
it, and signed it, and swore it, as it was testified
by the lord deputy and the rest.

* Then was it demanded of him, whether since
the making of this confession he had not pro-
tested to divers of his friends, that he had not
acknowledged the king's supremacy in ecclesias-
tical causes. His answer was, that indeed he
had said to some of his friends who visited him
in the castle of Dublin, that he had not con-
fessed or acknowledged that the king was his
supreme governor in spiritual causes, tor that
the ti nth is, in the confession there is no men-
tion made of spiritual causes, hut of ecclesias-
tical.

This is a subtile evasion indeed, said the at-
torney-general ; I pray you what difference do
you make between ecclesiastical causes and
spiritual causes ? This question, said Lalor, is
sudden und unexpected at this time, and there-
fore you shall do well to take another day to
dispute this point. Nay, said the attorney-
general, we can never speak of it in a better
time or fitter place; and therefore, though you,
that bear so reverend a title, and hold the re-
putation of so great a clerk, require a farther
time, yet shall you hear that we laymen that
serve his majesty, and by the duty of our places
are to maintain the jurisdiction of the crown,
are never so unprovided, but that we can say
somewhat touching the nature and difference of
these causes.

First then, let us see when this distinction of
ecclesiastical or spiritual causes from civil and
temporal causes did first begin in point of juris-
diction. Assuredly, for the space of three hun-
dred years after Cfirist, this distinction was not
known or heard of in the Christian world. For
the causes of testaments, of matrimony, of
bastardy and adultery, and the rest which are
called ecclesiastical or spiritual causes, were
merely civil, and determined by the rules of
the civil law, and subject onely to the jurisdic-
tion of the civil magistrates, as all civilians will
testific with me.

But after that the emperors had received the
Christian faith out of a zeal and desire they had
to grace und honour the learned and godly
bishops of that time, they were pleased to sin-
gle out certain special causes wherein they
granted jurisdiction unto the bishops; namely*
in causes of tithes, because they were paid ta»
men of the church ; in causes of matrimony,
because marriages were for the most part so*
leuiuized in the church; in causes testamentary,
because testaments were many time* madt •»

557] STATE TRIALS, 4 James I. 1607— The Case qf Prirmwiire in Irchiad. [5.W
cj-fremis, when church-men were present, giving

•piritual comfort to the testator, auri therefore
they were thought the fittest peisous to take the
probates of such testaments, llowheit these
bishops did not proceed in these causes accord-
ing to the canons and decrees of the church,
(lor the canon law was not then hatched or
dreamed of) but according to the rules of the
imperial law, as the civil magistrate did proceed
in other causes; neither did the emperors, in
giving this jurisdiction unto them, (live away
their own supreme and absolute power, to cor-
rect and punish these judges as well as others,
if the? performed not their several duties. This
then is most certain, that the primitive jurisdic-
tion in all these causes was in the civil mn^is-
itrate, and so in right it remains at this day ;
and though it be derived from him, it remaineth
in him as in the fountain. For every Christian
monarch (as well as the nodlv kin lis of Judu) is
cuttoM utriutqut tribute ; and consequently hath
power to punish not only treason, murder, theft,
and all innnr.er of force and fraud, hut incest,
adultery, usury, perjury, «imony, sorcery, ido-
latry, blasphemy. Neither aire rhe*e causes in
respect of their uuu qiudi'y and nature to he
dj »(in uuishfd one fioin another by the names
of spiritual or temporal: tor why i- ud.dicry a
spiritual anise, rather than murder, when tiny
are both offences alike u^aiiL-t the second tahlc ;
or idolatry rather than perjury, being both nl-
tencei likewise against the first table? And in-
deed if we consider the natures of these causes,
it will seem somewhat absurd, tlmt they are
dktingaished by the name oispiniu-.il aim tem-
poral; lor, to speak properly, that which ib op-
posed to spiritual should be termed carnal ;

diction was first derived from C.Tsnr, in tin*
execution whereof they were C'a.'S.ir\ judges, so
us both their courts and cause* ouiibt still iw
have horn Caesar's inline and superscription, a*
belonging unto Caesar ; they blotted Osar's
name out of the stile of their courts, and called
them courts Christian, as if the courts holden
by other magistrates had been in comparison
but courts of Ellin icks ; and the causes which
iu their nature were merely ciwl, they called
spiritual and ecclesiastical. »So as if the empe-
ror should challenge his courts and cause*
again, and say, ' reddite L'awari qua: sunt Ca»-
' sari?./ I Ley would all cry out on the contrary
part, and say, * date Deo qtia^ sunt Dei,' our
courts bear the name and title of Christ, the
superscription of C&sor is quite worn out, and
not to be found upon them. And this point of
their policy is worth the observing, that when
they found their jurisdiction in matrimonial
causes to be the most ?weet and gainful of all
other, (for of matrimony they made matter of
money indeed) to the end that Ca'sar might
never resume -o rich a, perquisite of their
spiritual jurisdiction, they reduced matrimony
into r he number o) the seven sacraments : after
v\h:f*h time ir had been sacrilege, if the civil
uiuuisliMie Ind intermeddled with the least mat-
ter that h<d nlaiion to matrimouv, or anv de-
pendency thereupon. So then it appearcth,
that all caii'>ct, w he; cof ecclesiastical <*r spiritual
persons ha\e cognizance or jurisdiction by
the <:ra]itJ> or permission of prince?, are called
ecclesiastical or spiritual causes. And as all
their courts are called spiritual couil>, :-o all
causes determinable in this:- courts are called
spiritual causes. And therefore wlkre .M.

■ad that which is opposed to temporal should I l.alor h*it!i acknowledged the kin»*< majesty t>>
be called eternal. And theiefurc if thin«.'s 1 be supreme governor :n all rc.h-ias'icjd
•ere called hy tljeir proper names, adultery | causes, he hath therein acknowUdied the kind's
lbould not be ca'led a spiritual offence, but. a ' supremacy in ail *piii:ual causes; uheieut he
curnal. But shall 1 express plainly and brit llv : hull but reunited to Cn'-ar ili.it which is
*liv these cauxs were first denominated, some ; Caesar's, and h;.i < cixen nut > his innjeMt no
spiritual or eccUsia-ln a!, and others temporal ■ more than all tin* hisltops of I '.n»j:l:i iui hate
M"l civil? I yielded to h.s pied cct «$•<!>, not only in tl is

Trulv, ihcv were so called, not from the na- ! latter aye, but a>>o in firmer fiin< <• both Ik fore
(ureal' the causes, as 1 said before, but from and since the compiiM, as hath been before ai
tl* quality of the pers'Uis whom the prince hail lame expressed.

■Hide judges in those r:ui»ts. 'Ihe clcmy did Here the day \ eini» fur *prnt. the court de-
Study tpiritual ihinj.-*, and did pro!r«-s to live j mniidr.d <>f the p;is -mr if he had :m\ more t<>
*cundum spiritism, and were called spiritual ' say for hin>sf.if. His nn-wi r was, that be tird
wea; and therefore il.f-v called the raiiscs j willingly reiminco. hi* •■tliie of tii*ar-«emTul.
vlicrein princes had l'iwh flu in jurisdiction, and did humbly crave his maji «t\'s grace and
lpiritu:d cause-:, u fie r tin ir own non»e und qua- ; pardon. And to that end, he desired the conn
"If. Hut because the lav-mai.'.htrnt* s were. ' to ino\e the hud-deputy t«i be hmmiahh- unto
•aid to intend the things of thi* world, which ' him. Then the jury departed fn'in the bar.
,r* temporal ami tnii.»:t^i'v, ihe ilen»y called i and returning wnhiu h tlf an hour, fnun 1 the
"*m secular or teiii'i* :;.l mm, a:id the cause* ; :»ri»'Ui»r <nii!iv of the contempts win re if hi:
•berein thev weic jui!«"s te'i-p-md causes. \ w\* indicted. W hrrcutKui the s.dn i'i»r-«.ine

■■■• • • • . *

•"is distinction btiianli.-i in the r»int'«r Koiup. imI ninved the couit J» proceed to jiiihjmriit.
*herv the cler^v h>'inir bv tlun ^iui\dirii'm ! And »-ir Don»i'.:(k Sarsfu I.I, knight, one of tin-

|WtCil great wealth, t1 i :r we-jllh hi «inf pii !e,
^*ir pride heirot i i • *- r I'ltu.le towards pi 101;.-^
*l» irst gave ihem llru ju:i dicriou ; and
falv accord ini; to tin: nature -»f fill iinjjratf fi-1
penons, thev went id".'.* to e\tuniuish rhn im.-
■Hryof the benetit. hor whc:e ■-. their jmi*-

iu-fices of hi.s ui:'»e*tv's chiel' place, nave i'lilir-
nK nt Rccnnhn-i 10 the fum id' the statute
whereupon the indictment was framed.

[•' The enrro^chments of the ehnrch of Home,
on the kind's ccok'Stustical jarisdii'»i"u, are the

559]

STATE TRIALS, 6 James I. 1605 The Catc tfthe Potisati.

subject of other cases besides the preceding
one 01' Praemunire. Iu particular they ure
historically discussed in lord Cuke's Case of
the king's Ecclesiastical Law, in the 5ih lie-
port. The publication of tliiit latter case,
with the active zeal of Ion! Coin: as uttorncy-
general, io the prosecution of the conspira-
tors in the Gunpowder-ji lot, gave occasion to
K volume of animadversions by (he famuus
Jesuit father Parsons, which was published
in 1606, by the title of an Answer to lord
Coke's Sth Heport, by a Cnthulick divine.
But the asperity with which lord Coke was
treated, did not provoke a reply. All that
it drew from him was a short notice of the
work in the preface to lus 6th report, in
which he represents the author ns a calum-
niator, and at such disdained to answer
him. But the controversy was afterward)
continued hy Mr. Prynne, who asserted the
cause of the crown against the see of Rome,
in a work of prodigious extent iii the plan,
for though the part published consists of
three large volumes, of more than 1000 pages
each, yet it reaches only to the end of the

reign of Edward Hie first. The *
allude to, is Mr. Pry tine's Chronuloei
dication of the King's Supreme EccFe
Jurisdiction, the publication of njik
nieiiccd four or five years after the J
tiun. The first volume extends to e

Sliest. The second, which was p
ist, concludes with the reign of Hi
thirl. The third, being in part a
inent to the second, is occupied w
migni t»f Ueiuy the third, John, and
Edward. When the author had ai
thus far, death interposed, and prerei
completion of the undertaking. V
lived to publish is become so ex
scarce, that 30 guineas arc the comra
ofti ompleat copy. The cause it tti
remnant uf copies of the first voUin
of them having been burnt in the gi
of London. — Such us ure curious to
account of the Jesuit Parson*, may
Cnmbden's Annals of Elizabeth. " :
translated edition in 'I. Kenn. Coin]
2d ed. p. 477, S7t»." Hargrove.]

85. The Case of the Postnati, or of the Union of the Ileal
Scotland with England; Trill. GJamlsI. a. v. 1608.*

[" From the mcetins of the crnw-Dt of Englnn
nnd Scotland in me [•<-. xirrnf the first. fume
frtiv one of the ino-i important quest iui
of state, which ever Msstjpd the MMMilllin i
either country. It ma, vlMbef ihr Pom
mm, or those bum in -.-.>i!itvI after ll1
nfJamalolbBCMtrnd Stmttuu
I the lulCW country u> be deems

ioi.J.-,-

I,[„M

« I lid I

kingdom, was eager to have it declined i
laiv, thin the Union of the ennuis effected
mutual iiaturnluuiiou of the I'oi
two countries, iii; wishes were snon made
known by the Proclamation, in which be as-

* Some of the law laid down in the (»]•
lowing case was discussed, in
v. Campbell, infill, a. d. 1?74. It

tel.eil on by l«rd .\Liii- livid in hi- iireunient (u
a point on which the j udgmenl of the i
tiui turn) in that case, and is v en iitr-nicuouslj
?iattd mid carefullv con- dcrcd bv Mr. \
•' ■ ii his most learned mid elaborate i

lv =

and .

N

sumed the stile of King of Great
with an evception however in favor
process, iustnmiMits, and assuranc
words were introduced, imporiin&
succession to ihe crown of Euglt
nvirte a great change in the law of I
Ulion, itvm. Feed. v. Id. p. 603.
last 4to. ed. 111. The Commission!

, followed ten king
u«uage; fur llicy resolved to pro]*
iln parliaments a declaration of the
.at eirect. But when the proposal
ade, the English house of c
nnd averse to it, notwithstam
l hy the lords, ■

delivered to them by tc

It was therefore del

usfirld'
'■ The Canadian Freeholder,"
As to the l/iuica of Allegiance

As to the topics
e..s- ariLelVti

STATE TttlAIA 0 .1 luu f. 1608.— Toe Cote qftki Pottnuti.

[5G2

■ ■

DM) in. i-f Ullil:(.lViir.l

Laqucr-CluuiiLer, in order lu huve

him opinion of nil the judge*: and

dWJ M iiii :i Ite-olution

■■..in, in which Hie lutd.
"or and li Judge* »ui of 14 con-
However, wry eminent lawyer*
tir lo hnxe enu-itiuned u different npi-
oi the point- Jo parliament, Dodrtdge.
t, llruck, Crew, Moore, rti ■

W l.iii the names
ing judga were, u not
iooed ; cxceiil th;it lord I

: ilie Cbriiiiaa nmue of
I i.nly jadgi i of ■ . .
rel'iid i. Iii.. ijiiMire Vleitiim, Ml

. -..inn inclinu
E(m king bad no litilc
fjoewion. Bui bi ;i.i- w ii

BD| Hppnsed ili.it the main

:. 15 Li-fii ever disturbed liv

1 judicinl opinion.

1 dollar Report ne nuve of tlli* cn*c

'" ' e. Bui ili. re ii * great deft)

1 1- in ii. i.i otha boot*! Lord*

.itiert pnMisliod bil Argument

r. ii-vuMiu Mug re give* the
■■■ pottage* in porlie-

■ |. .iiiii uf luiv, tilt deciding.

: made, In lorn

. m are both Iiii Speacliee

ill Parliament on ilie Mbject, inn! hil ArgO-

int'iii before the Judge* in ih* J
chamber, with some oilier pieces. 199. 169.
110. a Jlnc.4io.cd. i?:j. IBS. S14. Na-
thaniel Bacon, in hi< ■
uamine* iiml cetitrovert* the prii
>vl.ii b lo* I i e i toe to bora

been decided. Bacon Gov. put

70. The l':"l' mi;-iii:

piuCd i!i:iv- iii I In- I i ■

■i and 4 Jan ■ an Union

belweiu Bd|

shuit vie" ii i the cran-

i." Arcli-

.■.-,..-.. ol the Church
...mi state ni' Scotland rIw 6 ou

En-iiciilii; of thi' |M"
win. Snotsot, 4*0.

...i.ry ..I .lame, till 1st, 27. 34.

kins, 8)8.
336. -2 Wimiouil's Ueinoruli of State, SO.
34 to 38.
(¥• ibollnow la* beJbt* inewwJer, I, Mr, kt.
i.iuii Hffoore'i locognl

'1'iirl iiiim-til. about tlH

r!:iron'-,-|., .... ■ .i in, In ilie

Eichrnucr-Chiiiiilier. 3. Lord I
port of Calvin* disc, -l. i.!iid-i-hiime.'ii>r
F.lliSurcre's Speech in (tic VtcliLii'ier-Chnui-
ber, u* pi|lili-lii ii I.'-

•See lCubb.Pnrl.Uisi. 101ft, WIT, 1060,

By«.

CntJ ->f tbb Union uf the Realm of Scotmm> with Exclai

[From Moon's Rrpnitu, p, 790.]

f pjirlijunemin the first ses* ion nnno

■ I tij meet with cummis-
Scotland, nuil iu treat for the weiile
jngdonij, and to pur tin :

.. !, one w [lie
iiiUi'i to um parliament of England,
■he pmliumeiir of Scotlind.
'..Ii uiiti.iri, metinihe
minU'r »i Wc-iiihii^it, ..

I in ilie end mode

and deitvend then according lo the

IM lit (i| I-'hj--

thelord Elleouiere lord

.. ^ime fur Oiat purpose,

■nets, die OrM

■wmi hi i.iirl inn rent bolder iiiiiiu 3

!:. rlir lords S|iinluiil and
j'd the Cnmmons, being nil mseinbled
■r hoow ol parliameni Eu< u.c con-

nig thii iiisi-int of an' ■!

Ic iym L'oii»ul[-red ni'Je-

■
'-~i did prupuie, liut all hoitili

lamt of cither nntinn one ngninM the other
ini-tit in' abrogated, mid did etunoratf the
tame lanre*. The tecood, tliej propoeed *

ijii-i' lin cpiuiiici-rc iinJ iiuivlBinili/illK by
merchant j of buth Diitirmis litv.', in themselves
aiidnilh forrcinen. TlitrdhjF, they ptQBOfed
tlmt tlie coninmii law ofhoth ukimiii anouM
be declared tn be, tlmt nil born in viiln-r Mil-
lion litbencehu majesty walking i
Hflmall* unnlrMd id both. And furher,

that an act iih^U In- imnti. lo n

boru before, mitli ii-rtui ,

lions for bi-iii i

pftOW Of judii . . .n |i.ii!i.i-

iiicrit, mid iriih a Mfiflg i>i' tic kings prero*

gat i.e.

Upon the Iwo first irtkle*, lift lotda and

cinnuiiiiitliad.iiii-lrvc ih-iim-, in llelVinted

Chamber, and in efleet nBNed Id gin m U
the subulnnce of Idem. '

the common* could not *M0*t tn declare the
luw us »ns propowd, und thereupon after long
ikbiitc i.iii .ii i appointed

rminlilai i tn confStt with ilo bodi com-
mittees, who mett the ".'■ of Febtnajj 10O6, ia

Fruncis Hucon, appointed hj lb l.n-
duco'hp tttff I.'

'Hi. ii ibi) i.giifcftuce and the iubjact thereof

563]

STATE TRIALS, 6 James I. ItiOS.— 7fc Case qfthe PoslnalL

[564

was no* in delibcratiw, but in jidiciali, not people into places, and to discipline in their

(ft bono but dc vf.ro, not to cm* suit of a 1-iw r»
he made, hut to declare (he law already
planted, whereto the commons were drawn, by
iiuntisfiu.tion of their judgments, not indispo-
sition of their minds to the happy union in-
tended, to oppo<e the proposition of the com-
missioners. And whereas his majesty had by
n proclamation expressed the law to he ns the
commissioners had proposed, (he commons did
not take themselves prejudicatcd by the procla-
mation ; first, for that that matter came hut
obiter in the proclamation, and was not the
principal part or purpose thereof; then, for
•tlmt the proclamation mentioned! the king to
be so informed bv divers sages of the law, which
is not to be understood judges of the law, but
some learned in the lawes, whose opinion may

government, though their subjection still remain
in the general to one head ; yet the manner of
it is locally circumscribed to the places where
thiy arc brought forth, and those of one place
do not. nor should partake of the discipline,
privileges, and birthright of the other places,
hut eiery one left to his own, as acquired 'for
patrimony by their antecessors of that place,
upon reasons peradventure now not extant nor
to be exactly understood.— 2. This is in use in
other nations, who obtain their naturalization
by Charters, and for such time, and with such
cautions, as may be granted unto tiietn, and
take it not by the general law of that nation
whereto they were united. — 3. In the time of
the old civil Romans, who united unto them
divers provinces, they had degrees in natural-

the lietter be opposed : yet the proclamation j izing ; for first, the party had 'jus domicilii/
hnrh so tempered the tongues ot the speakers, then 'jus civitatis/ next ' jus tribus,' and lastly
as it hath kept down all flushes or' heat, which ' jus honoris;' whereas if the law of England

otherwise might have happened in the argu-
ment, llowocit the danger of a declaratory
statute, bein; like Janus Hi f runs striking both
waves, ruiseth in the commons too much fear
to assent to the proposition, leaving the pro-
clamation neverthclesse to its own crt'ect. Pur
inducement pur Irs outers speakcis apres cesl
inducewn, he shewed that it was a singular com-
mendation to the lawes of England, that it was
not in sociable, but contented to hear and be
advised by other sciences in matters of depen-
dencic upon them ; us in cases of exposition of
words, by grammarians ; in matters of matri-
mony, depmution, bastardy, by civilians; in
minerals, by natural philosophers ; in uses, by
moral philosophers, Upon which consideration
the commons had selected out of themselves
divers gentlemen, some for inducement, some
for argument in the point of law. Those for
inducement were to shew the law of nations,
and of reason, and the stories of other coun-
tries, and the civil law elsewhere put in use upon
unions; those for argument were gentlemen of
the profession of the common laws of this
realm : all which being here ready, he left them
to discharge their own proper duties.

Sir Kdwyn Sandts shewed that this case was
proper to be consulted with the law of nations,
which is called 4 jus gentium ;' for there being
no president for it in the law, ' lex delicit,' and
' dehViente lege recurritur ad consuetudmem,'
and ( deiicieute cniisueludine recurritur ad
' rationem naturalein,' which * ratio natural is'
is the law of nal ions calh ;d 'jus gentium/ The
question of di (Terence is thus, whether subjec-
tion to one king make all the people born
within the places of (hut subjection to be natu-
ralized over nil places of that kin::4 suhji-eiiou,
which as ho thought, if it were to he measured
by the law of rea*»n and nation*, did nor. And
therefore shewed 7 reasons for his opinion. — 1.
That although ab diiUt/un* when people were
together in one heap irregularly, Laving one
bead, ihvir subjection gave to every one equal
priviledgc in nil places of their subjection, yet
suhence the world is grown to distribution of

should be, that subjection brought all this to-
gether, it were a law overliberal, and mora
bountiful, then the laws of this civil state ground-
ed upon reason and policy.— 4. '1 hat Scotland
being governed by the civil law, a I to wet h not
English by bare subjection to their king to be
naturalized within them ; and therefore the law
of England should be very unequal, if it should
allow it to Scots here. — 5. This case may give
a dangerous example for mutual naturalizing of
all nations that hereafter may (all into the sub-
jection of the king, although they be very
remote, in that their mutual communally of
privileges may disorder the settled government
of every of the particulars ; and how many of
diem may happen, is uncertuine ; for we see,
that where there were 100 kings, they came
after to 11, and are now brought to 6 only
within Christendome.— 6\ The Scots shall b«
in better case by this law of naturalizing then
the English, in the English nation ; for the
English pay till impositions and taxes for ser-
vices of the crown, which the Scots do not
within England. — 7. All the reasons given for
naturalizing extend as well to them before
born, an sit hence the king came to the crown
of England ; for the subjection is now all one.
Therefore, the law that should make a differ-
ence is not reasonable ; and because the law is
confessed to be, that those before born be not
natundved, therefore the law must also be, if
it retain the same reason, that those bom
uftcr are not naturalised.

Nevertheless he concluded, that he held it in
reason, that in respect of one subjection, the
Scots should not be accounted uor deal withall
bv our I it ncs, ns Miens, although not enabled
to the full lights of Engl ishmen born amongst us.

£ir licfin- (h:rn for s^rk-s. 1. shewid, that
in all tin- presidents of ih«» Romans, and in all
their varii-i'n *•■ of: ristocmcv or monarch v, there
was no nalun.li.Mie ipso jwc, but by chatters
of ^.ancc or constitutions special, and that bv
X nonius begun and introduced. 2. The president
of <*pnin and Castile is not to this point ; for
A Linen* the emptrour :)n* lord of all Spain

385]

STATE TRIALS, 6 James I. l(J09.--77tf Case of the Postnati,

[5GG

gnrt out Caatile, and the coming of Castile
again is rather a reuniting or a remitter, then
a new union, and then lore reasonable they
be one naturalized in the other us they were at
the tin*. 3. Ihe president fresh i>7 France
and Scotland by marriage of the kings mother
with Francis the second king of Frunze, k>ccau;>e
the subjection made no naturalization ii.*ojtirey
therefore the bcots in France and the r reach
in Scotland were naturalized by act-* of pariia-
meuc and with caution*.

Sir Jo km Benne.l doctor of the civil la<v, lie
shewed mat the civil law had no resolution of
this point ' in tennitiis tenninaiuiuui ;' but of
other unions lesser then kingdoms, there were
rule*, which he devided into these heads ; one
a naxnne, the other a distribution ; the
BUiime, ' cum duo jura cincurrtuit in una
4 persona ssquum est ac si eisent in diversis,* us
one parson of tw o chinches, one dean of two
deaneries : the customed of every place remain
still distinct and uevided. And he cited an
example, that the earldom e of Flanders and
Artois were holdeu o( Ihe king of France as
soicraign by the duke of Brabant and Holland,
who within Brabant aud Holland was a free
state: the question was whether this duke
having both the dukedome and the earldome,
and owing subjection to France only lor the
earldome, might make a league with the Eng-
lish for his dukedome, without breaking alle-
|jsuce with France : and this being debated in
lot parliament of Paris, it was adjudged lie
night, because he held the dukedome and the
earldune as distinct in his person, and owed
*«> subjection to France for his dukedome.
The distribution be made was this, upon the
duference of unum and unit urn : there was a
union subordinate, that is, when an inferiour
h united to the superiour, as Ireland to Eng-
land, in this case ' privilegia communicaiitur.'
There is an union by incorporation, that is,
when two be made unum, and not unitunt, and
then ' privilegia connnunicantur,' as Wales
and England. The tlurd is when disjunct
augdomes are united, and that * unicunV is
Secundum quid,' and ' nun simpliciter ;' in
which case ' privilegia non communicautur;'
sad so be concluded that Scottish men were not
sataralbed in England ; and yet he alhrmed
that it was in the power of the king by the
city law to naturalize thein, and give f hem the
priril edges.

The earl of Salhbury here interposed, and
stid, that be was desiions to understand whe-
ther the arguments made were upon the point
in question ; for as he conceived the question
>ow in debate was a legal question of the law
of England, and therefore time was to be spent
■pun argument and discussion of the law of
England, and so * sapiens couteutio aut pro-
1 rfttt aut non ohest.'

The Lord Chancellor then spake and said,
that the first man that spake by introduction
■od inducement of the rest brought the ques-
no« to the quick, that is, that it was not a
■aeuion <U bono but dc vtrv, not what was lit

to be done, but what the law already is, which
is what the law of England is ; in which qtus-
tiou, if it shall be d> ui.iful, it is more then iu-
(ink-lent to declare it as the couutiUsi Mieis
have propos-ii, for three cttus< s. 1. 1 he kinus
proi laination having divulged it so, it is lor his
honor to declare it so, if it he not clear other-
wise. U. Ihe opinion oi the coiiimi&Moncis
whom both houses tru-tcd. 3. 1 Jit- act ot re-
cognition, wt.CK.by \v« have :u knowR-dtied He
k.tig of both, and that we bom iive uinier ui:e
imperial crown.

The cail oi Sort Hampton said, that it ap-
peared by die civilians, that in the civil law
there was no president 'in semiim-* lermiuuu-
4 ill. us/ and therefore from :h: m we could lake
no rule for this case ; nor no stouts or i xam-
ples of forraign staus, which me '-oj/i ible and
framed to their own particular politico. Mm?
as this case is, cm we he measured or guided
by inconvenience* that may he forecai-t ; l.e«
cause we are confined to a point of law aiicndy
received and planted, and are to reason and
discus^ what that law is. Nc \ ; i thelt-ss tie desired
leave to u«e a comparison to them, to be com-
mended to their consideration, between die
- union in a body politick and in a body natural.
The head in a body natural hath his iuihie ucc
into all the members by spirits ot' life and sem-e.
So hath the head of the body politick, to whom
all the members be children in obedience, and
brot Iters one to the other. The smew* in n
body natural urc ligaments that hinuc together
thejoynts and flesh. So an* la wet in the bo.iy
politick that tye people in a band of subjection
mid civil life. The blood, that pnsse :h in the
veins of the body natural by continual motion,
doth maintain and refresh the sph its of life. So
traliick, commerce, and contracts in a body
politick, do support, maintainc and refresh the
common-wealth. But of ail tin so there is a
superior spirit sent by God, whicn is the *oul to
the body of man, by which all our ble-sediif ts
is infused. So may we well say, that the kings
majestie is like the soul, a blessedness sent
from (jod to dwell in both these nations u» a
continual spirit of union amongst them, t >
pacific and temper all bitterness, e»cn sis the
soul by instinct of reason quicttth the natural
passions of the natural bodies. Wherclore let
us consider how unfit it is to have two spirits or
souls in one body; what their opposition may
work for distemper and dissolution; what the
sweet harmony of one good vertuous and reli-
gious soul in every part of the ho<iy may do,
for consolidating, strengthening, and conti-
nuing in the whole body tint prosperous estate
of life and health that is to be wished : and
therefore in the case whatsoever may tend to
the happy and firm uniting of these two knur-
domes in resemblance of lives and fortunes is
to be inclined to, and recommended to your
grave consideration.

Dodridge the king's sollicitor, Laurence
Hyde, Brook, Crewe, & Iledley, professors of
the common law, now begin. Aud for the
couunon law they urged nine reasons or argu-

5G7]

STATE TRIALS, 6 James I. 1603.— The due qf the Postnati.

[560

ments, that those born sithence his majesty
ctune to the crown of England within Scotland
should not be naturalized in England. Which
question sprang out of two positions gnu i ted,
us a third doubtful between, and this third is
' oculus (juajstionis.' The fust of these two
positions is, that in the kings person there is an
union of soveraignty over both nations. The
second is, that notwithstanding this union, yet
the fundamental lawef of either nation do
remaine distinct. The third, which is the

douht hetwec n hoth t:n»*e, whether naturnli-
zation proceed fiom the khn» or the lawe*. Chit
of this one head all the reasons were derived as
followeth.

1 That * lex.ct ligeanciu,' came out of one
root, and as it is called * lex a ligando,' so it
is culled 'legeance, a li^atione;' which provcth
uliegrance to bu tied to laws; and consequently
the laws of these two nations tying several,
notwithstanding the union of soveraiguty in the
kinjjs person, the allcpeance of the subjects* re-
iiiiiiiH'ih still several; and therefore nuturali-
ni'ioii he n^ measured by nllegennce must still
remain several and distinct in cither nations, as
nl!< iieance and laws do, and cannot be united
And made one in both nations. To in force this
they cited the statute of 25 Ed. 3. statute 2.
\h- Ni'.tis Ulna Mare. Tn many places where
it ir.c.'tioucth bianco, is added ' out of the
' U :. .i;.ce of England, or withi.i the same le-
c iieance of England ;' which doth infer, that
legeance is i veil to the kiugdome, and not to
the person of the king.

2 Reason, that Postnati in Scotland are not
subject to the laws of England, and therefore
ehoul'l not have benefit of the laws of England.

3 Reason, that every nation hath a precinct
v ho i em the laws hate operation; and natu-
ralization is an act or operation of law ; there-
fore it cannot extend to places out of the pre-
cinct for the laws. Which being granted, it
followeth, that ~
into Scotland, so
of England, extends
those bom in Scotland.

The 4 and o reason, that the great sea] of
England, which is the organ by which the law-
is conveyed, is not powerful nor binding in
Scotland; therefore those bom in Scotland
not inheritable to the laws of England, nor
to be horn subjects of England, when they

deaux and Bayon, and to send them to the
'lower of Loudon. An Habeas Corpus hath
been directed under the great seal of England
into Gascoigne, as appeareth by records of the
Kiugs-bench. And the islanders do send peti-
tions and make proctors to the parliament of
Eucland, as is still put in use to this day. By
which it appeareth, that the case is not like
between England and these kingdomes and
dukedonies subordinate to England, as it is
between England and Scotland ; Scotland being
a distinct kingdom not subordinate, and as an-
cient as1 England itself. And therefore whereas
some have conceived, that when Gascoigne
was by marriage united to England, those of
Gascoigne were not aliens to England, and in*
force this exposition out of the prior Shels case,
27 E. 3. pla. 48. in the book ot assizes, in that
the prior having his lands seized in time of war,
for that he was born in Gascoigne under the
kings allegeance, and thereupon the matter
bung found true, he had restitution ; to that,
it may be confessed ; and yet it matcbeth not
our case for Scotland, a distinct kingdome, and
the reason of that restitution may be the ceasing
of the wars as well as being born in Gascoigne;
for those of Gascoiune were in those times ao
comptcd aliens in England, as may appenre by
the statute of :!8 E. 3. cap. 11. where it is
enacted, that the Gascoignes and other aliens
should come ii.to England with their wines;
which proveth, that tho«e of Gascoigne could
not bring their \v!hj> into England, and they
were then aliens to England, by the words of
Gascoignes and other aliens.

7 Reason, that rtgnum and rtv were rela-
tives, and therefore distinct kingdoms, distinct
kings as to the kingdoms ; and the person of
the king possessing both kingdoms pes««e>«-eth
the people and the laws of them distinct, as the
kingdoms are themselves. Therefore the sub-
jection of every people is distinguished to thr

us English laws extend not ! several kingdoms, and one not subject to the

to be naturalized by the laws other, nor naturalized within the other. An»i

inds not into Scotland nor to this is proved by the statute of 11 E. If. whereby

,it is declared, that notwithstanding the kinn of
England were king of France, yet the people
of England were not subject unto hun as king
of France, but only as king of i ngland.

8 Reason, that no man can be born a sub-
ject of two allowances, nor by birth natural of
two distinct kinj:doms, therefore Scots born in

cannot be commanded by the great seal ot' Scotland cannot be rat unitized in England.

England.

(> Reason, that in subordinate' kingdomes,
dukedonies, or seignories, as Ireland, Gascoigne,
Aquitauc, Angnis, the great seal of England is
putssable, and the parliament of England hath
power; as is proved by that a writ of error may
be brought in the Kings-bench of a judgment
in Ireland, and the parliament of England may
m:\ke a statute to bind in Ireland, if Ireland be
specially named, but without spcriul nameing
it doth not bind. So 27 E. 3. cap. 7. a statute
w:is nude to out ho rise the steward of Gas-
coigne to nrre»t the bodies of such as bargaine
lor wines elsewhere, then in the portes of Bur-

9 Inconvenience would ensue in honors, pri-
vilege*, and things of value, which would be
confounded without oider, if this com mixtion
should be phuited in both nations without dis-
cipline or rules.

The time being thus spent the 25 day of
February, the next day was appointed to pro-
ceed with the conference, at uhich time the
lords committees desired the judges there at-
tending to deliver their advice and opinions
concerning the point of law : for which the lord
chief justice Popham had the night before
prayed respite until this time. Whereupon
the said lord chief justice, and sir Edward Cook

569]

STATE TRIALS, 6 James I. 1609.— 7to? C<uc of the PoXnatL

[570

chief justice of the Common Pleas, and sir Tho-
mas Hemming chief baron, did openly deliver j
their opinions and their reasons, the said lord ;
chief justice Popbam making these three in- j
duceuenu iu commendation of the laws of
England. 1 That they had continued as a j
rock without alteration in all the varieties of i
people that had possessed this land, namely
the Romans, Brittons, Danes, Saxons, Nor-
mans, and English, which he imputed to the
integrity and justice of these laws, every people
taking a liking to them, and desirous to con-
tinue tliem and live by them, for which he
cited Fortescues book of the laws of England.
9 Commendation, the price that those laws
djtf cost, which was no lease then blood ; not
laws of blood or bloody laws, but law s bought
and purchased by the blood of our antecessors,
as appeareth by Magna Charts, planted in king
H.S's time, after long and bloody wars between
the kings and burons of this realm, the stories
whereof do yet live fresh in every chronicle.

S Commendation is the proceedings of the
law, which he devided into 3 parts. 1 Judg-
ments. 9 Trials. 3 Testimonies. The judg-
ments so even and so impartial, as the)1 give
way to no mans a flection, nor impute blame to
any man ; but to say the law requireth such
judgment, is an excuse satisfactory to all men,
tor the king, and the judges. And therefore
the said lord chief justice cited a resolution in
parliament when himself served as Speaker :
that whereas it was proposed to huve a law
made, that the judges might use their discretion
in appointing trials in forraine counties, in res-
pect the meaner sort of people were over-
veighed with the power of great men in some
wires that were parties to the suites; it was
apon grave advice and consultation denied,
viththii answer, that it were better to live
■nder a certain known law, though hard some-
times in a few cases, then to be subject to the
alterable discretion of any judges. The trials
of the law for the most part so equal by the
oaths of 19, as lie protested that he never
knew of the multitude that had passed before
himself, scarce two of a hundred passe other-
vise then himself should have passed, if he had
Wen in their case. For the testimonies being
vmvocc before the judges in open face of the
world, lie said was much to be preferred before
written depositions by private examiners or
(ODUDtesiouer*. First, for that the judge and
juror* discerne often by the countenance of a
wTire>sc whether he come prepared, and by his
readiuess and slackness, whether he be ill af-
fected or well atU-cteri, and by short questions
Btf draw out circuiu^ttnce* to approve or dis-
credit hi* testimony, and one witness may con-
test with another where they are rim vocr. All
wnichart tar. en away by written depositions in
• comer.

For argument the said judges answered with
one wnt, to the first reason of the commons,
that nlLegeance and laws were not of equina-
ntioQ for sis causes. 1. Allegiance was before
suit* ft, Allegiance ii after laws. 3» Alle-

giance is where the laws are not. 4. Between
soveruignty and allegiance laws are begotten.
5. Allegiance extends as for as defence, which
is beyond the circuit of laws. 6\ Allegiance
folio wet h the natural person, not the politick.
To prove this, it was said, if a lieap of people
meet together so near, that they appoint a king,
there allegiance is before they huve laws pro*
claimed or prescribed : wherefore allegiance is
before laws. If the king be expelled by force
and another usurps, yet the allegiance is not
taken away, though the law be taken away. If
the king go out ot England with a company of
his servants, allegiance remaineth amongst his
subjects and sen' ants, although he be out of
his own realm, whereto his laws are confined,
as is proved by a case in Fleta, who wrote in
Ed. 9 time, which is thus. King Ed. 1. went
in person into France, to a mnrriage ; one of
lus servants in France stole 9 silver dishes, for
which he was apprehended by the French : the
king required to have him redelivered, being
his subject and of his traine; and upon dispute
in the parliament of Paris, he was sent to the
king of England to do his own justice upon
him, whereupon he was tried before the stew-
ard and marshal of the kings house, and exe-
cuted in France iu a meadow called St. Jermins
meadow. Which proveth that the kings law
follow etb his allegiance out of the local limit of
the laws of England. And even so it is,
where the kingol England sendeth a lieutenant
or general with an army royal out of the realm,
the army is to be guided by the martini law of
England, as the lord Cook affirmed, it ho also
cited the case of Fleta. If there were not a
sovereign to prescribe laws, and people of alle-
giance to obey them, there could be no laws
made nor executed. By which it appeareth,
that between soveiaignty and allegiance laws
are begotten; and therefore in nations con-
quered there are no laws, yet is there present
allegiance; and uft«T allegiance gotten, it is
secondary for the king to deliver laws to the
people of his allegiance. And to prove the
allegiance to be tyed to the body natural of the
king, not to the body politick, the lord Cook
cited the phrases of divers statutes mentioning
the king our natural liege soveraign, and these
words ' n it lira I subjects' in acts of recognition
usual and familiar. And to prove that alle-
giance extended further then the laws national,
they shewed, that every king of divers king-
doms or dukedomes is to command every peo-
ple to defend any of his kingdomes without
respect of that nation where he is born ; as if
tlie king of Spain be invaded iu Portugal, he
may levy for defence of Portugal armies out
of Spain, Naples, Castile, MilLm, Flanders,
and the like, us a thing incident to the allegi-
ance of idl his subject* to joyn together in
defence of any one of his territories, without
respect of extent of the laws of that nation
where he was born : whereby it manifestly ap-
peareth, tlutt allegiance followrth the natural
person of the king, and is not tyed to the body
politick respectively in every kingdom* And

otl] STATE TRIALS, 6 James I. 1608.— Tfcr Case qfthe Postnati.

[573

therefore, whereas the rale for aliens is this,
that those bom within the kings allegiance are
subjects, and those horn out of hi* allegiance
are aliens, it is manifest, that Scots born in
Scotland, since the king of England was kinji
of England and Scotland'both, are not born
out of the kings allegiance, and so not aliens,
imt subjects, and so to he accounted in Eng-
land. For further proof of this, the lord Cook
shewed statutes, book-cases and pleadings.

For statutes prcrogat i va regit cap. 12. which
was made in tlie 17 year of king Edwnrd -the
second, and is a declaration of the prerogative
before, wherein it is declared, that the king was
to have the escheats of the lands of the Nor-
mands, and till others horn in pans beyond sens,
who^e antecessors were of the faith or loyalty
of the king of France, and not of the king of
England ; as it happened of the barony of AIo-
nuiii eta, after the death of John D. ilonumeta,
whose heirs were of Brittain and elsewhere. By
which declaration the judges did infer, that out
of the allegiance, and within the allegiance of
the king (fides being to be understood allegi-
ance) ruaketh the oddes between an alien and a
fjVui/t/n, and not the place of birth in England,
or without England ; for it is declared, that the
king should have the escheats of such as were
born in parts beyond sens, and whose parents
were of the allegiance of the king of France,
and not of the allegiance of the king of England.
So that although his birth were out of the
bounds of the kingdome of England and out of
the reach and extent of the laws of England,
yet if it were within the allegiance of the kings
of England, the king was not to hate his escheat
as an alien, as at this time divers places that
were within the limits of France wore in sub-
jection to the kings of England. Aiu\ for tlie
instance of the barony of Monuinctn, they
shewed that king H. 2 had four sons, Henry,
Richard, Jeffrey, and John, that Jeffrey was
married to the heirc of Brittain, and was mur-
ine red by John, in which time the case of Mo-
nuir.it a happened, Brittain being not within the
allegiance of the khit> of England, by that mar-
riage of the king's third son. They shewed that
it was not material, whether a kingdoroc or
riukt-dimie came to the allegiance of the king of
England, nor whether by marriage or conquest;
for many dukedoms were sometimes kingdoms,
and kingdoms were but dukedoms, as Castile at
the first hut an earldom, now a kingdom; little
Brittain once' a kingdom, then after and now a
dukedom; Ireland a dukedom, now a kingdom.
But the matter of difference is, whether they be
free and divided states in their laws and govern-
ment, and so were both these dukedoms of
Aquitane, Gascoigne, Guyen, &c. which have
been so much insisted upon, and so is Scotland,
and yet ail under one allegiance and faith to
one king : which unity and allegiance to one
king, taketh away the rule of alien born from
them all, howsoever they were united, be it by
marriage or conquest. And vet for Gascoigne
andAquitane, it came by marriugc and descent,
as Scotland. The next statute is the statute of

42 E. 3. cap. 10, that the commons desired in
parliament (hat children bom beyond seas,
within the seigniories of Calice and elsewhere
within the lands and seignories that pertaineto
the king beyond seas, might inherite in England.
Whereto the answer is, it is accorded, that the
common law and the statute upon the same
point another time may I c holden. The judges,
examining what statute that wjs, found it whs
the statute of 25 E. 3. suit. 2. dt nalit ultra
mare. Which statute contain? a preamble, and
3 ordinances. The preamble is a recital of a
doubt, whether children should inlierite in Eng-
land, that were born beyond seas out of the le-
giance of En gland. The 1 ordinance is a decla-
ration of the 1 uv, that the kings children where-
soever born arc inheritable in England. The*J
is a confirm ion particular tor some named, and
which the king shall name, which were born be-
yond seas, out of the legiance of England, lo
inherit in England. The. 3 is a new law, tliat
children from henceforth bom out of the legi-
ance of the king, whose father* and mothers at
the time of their birth be and shall be at the
faith and of the allegiance of the king of Eng-
land, shall inherite in England, &c. Out of
this they did infer, that the third ordinance only
did touch the point now in question; which or-
dinance nevertheless came not to the question
proposed ; for the ordinance is for persons born
beyond si-: is, and out of the kinus legiance,
whoso parents are English; whereas our ques-
tion is for persons horn in Scotland, which is
withiii the faith and allegiance of the king, and
so much the odds is, as the1* word* import, vis.
out of the allegiance and within the allegiance.
So as that statute directs not this controversy ;
and therefore it mu^t be the common law that
doth it, whereto the statute of 4*2 E. 3. doth
referr concerning tho>e born at Calli>, and other
seigniories beyond seas, that pertain to the king:
which person* having been ever expounded to
inherit in I Jutland, it mu^t needs be taken, that
they inherit hy the common law, and not by
statute. QH U. 6, cap. S, against extortions
used by searchers amongst merchants, the mer-
chants of Gnscoigne, Guven, Ireland and tbe
Ishs, are called t.:e kings litge people.

The books and judgments cited by the judges,
were first 27 E. 3. in the book of assizes the
48 plea, the case of the prior of Shel», w ho be-
ing a prior alien, and hi* temporal ties being
seised in time of war, shewed that he was not
an alien, for that he was Ivrn in Gascoigne,
within the legiance of the king; which plea was
found true by verdict, and thereupon his tem-
poraries were restored. And tlien the same
case came again in question in the Common
Place in a quart itnpedity because in his restitu-
tion he had no special words of ad vowsons, whe-
ther the king might not present to the advow-
sons of the priory notwithstanding the restitu-
tion, tor that also the restitution was, that tbe
king of his grace did restore, &c. So it was of
grace, not of right. But the book is, that the
king should not present ; and the reason al-
leadged, because the seasure was by wrong, the

rr.i ii.il i.i the Lniu, gmce
.,i il ■ . ■

not ol right- Fur c.jii-
:, thtj rj|.

I lilildi and their
> brought mi ussize, uiul then
liiiant |i[r;i.t-

f], th;it her husband

tad |,a

i [lie

made deni

rtapect ill I tie KverMICV, tad that
IH iri lll'ilh I ('1 Ill/lit of linn Illlll mus (t-

.iillfil ;! I, Vcl. ll:r

■ km ihi manner of the

li born out ot' the realm, mid nil

i d Illlll allo-

■i the j

I i

t of [he ln*i of ths reetai.
fa l'i. li. one challenged a juror for.
in turner of his

.. n, I imt I.i ■

■

..ml tb« triers

be »a» borH i'l I landers, but bad

a child iti England, mid win sworn to

el nevertheletM (lie court

■ ! f sworn. Bui tbenou

. ■ ner of the challenge, via.

!»• la tlic kins, because he mis born out

S-' l.mliloii in In* chnpu-r ill

lb linn I') tie mi alii

Ind tlmdwthw-

■:■ of England, und

if Scotland, or fUlnil duke ril

, ■ '.:• uril ihc prcsidi-ut in
miiri™, to tic, Hint he. that dimbloih
>( alkdgeiffiriiiiitin-lv.iliiii I": i- iin
■
it ha was burn e.rtrn ohtdicn-
: mul nor that alone, hut also
■ jilnc* where he »raa bora i»-
. tig, .A-inoE.

^tWut<)f the or&cc of
■■. flip tenant
i a ti ilke in iin- iiii'iuicr,
int-5 Biigoi eat alienigena
ii regis Inglw,

1
i naagM iuiuaiei domini rams
■li Mane of pleading cannot be

j allegiance, neither is the
my to [he king of England,

■ 1 that the trial

■ ajUrin Bngl ■ ■

«n alien against

ii Scotland ;
' ili nothing on

ilnnili.i part; forso if ■ deed be made in Ire-

■ ■, you must
■

Intnl. in [Im and li trial ■*] I"" !■■

uliii.ii is ..Hi kin ,ii England] nam rth
niiij give in evidence Ui<

■ ■■ the. ■:,■.■,, i i.-. li. 4. |il:i. 10.

tl'.tv- liinl [ili,. on.] fei ta ..[.iiiii.iNiii tied* in
taodkse. And m ij :;i li A. To. "ii. in deht
ii] i Mod inada in toe btshoatka of Durban

■ the reason
of this cine debuted, and Brown eiCaifa u to he

: ii it the defendant alledge that the
uuirttil ii i Scot hum at St. Johns town it
Vint:. mi, onl of the Itghace, thia is a Mill

where the wiil ii brought ; but if the pJftMlif
will reply, lliat lie- WB1 born at J.uiidoii wiilnn

■ ■ . liic ilt'iETiil nuisl rejovn, tniit

tba |il.i luiii Mai horn nt St. Johns town in Scot-
land, wuhout that, that lie was born in Loiiiliiii,

■ ihnti Iil' tried in London, ho are
; i:n:i. ;■!;.,■ miiej allowed for necessity of irril ;
but evidence of liis hiith in any place n iilnn [ha
krngl dominiow i- sufficient to maintain tlic
issue, although for hum of pleading it be laid to

In "hid ana Of 19 H. 4. it

was imt by Iri'ljy, lint a liegttuM of England
bus Lilted by another lirgrnnn of England in
Scotland, and his wile brought her nppenT in Eng-
l.iiiil i.i r ht. r.iiiri ii|'iyii.|i.r.;iijriii:ilileol'l;.n-lniiit.
Then llie judges eiaminifd wlmt ihoaM b*
■vren to ibe » nrj, if bWj should be nntuinhjcd.
first, thty being Ml cnemie*, if they be minis,

■ 'i tied m t! !■■.;■ dud ii .

wild may linn-.' penonal acrjQMi Bw B I e)

buy iuiid, the knit, if lie will, iuhy tcht

it. Ilnl fin ili/t "il - i,t"i i, Hi, I, |,| li* i-s in | ... i j -

I .irijns, Scoiclimeii caon
England, is bag ta tfat lam Hand distincL

■ they tued ihe cuse of 11 E. 3.
tilnlo brielr: 473. where the Vint was brought

■'.•iiiiibi the earl of Rkhmoad, win

that lie iv.is duke ol Bnttuliie, wilt not so inunwl
in the writ, nnd prujred thnt the nrit might
the judges ■Booed nut his pleii, be-
■ • :i faiwJglW
digniiy, of which we tnlteno notice in England,
Vet Edmund Ilnliul nssi^uint' tti-.: same ciiuse in

b tea : if * « rit, tot tbu be «rai not nntned

king of Scats, die Utce[iii"n •••■•* Iil-M ^'.""1 ;
for that a king ig in notice of all countries, and
wi is n knight, but not barons, earl.! i
domn and tli^ like. NeverUielessL- :'.
35, en (i'le lie brieft 5!7. a writ was abated fur
not mining the Defendant enrlc of Angus, al-
though it he a dignity in Si gtlniid: but the rea-
son is shewed to be, fix that be b» I

■nl at dm parliament ol l.i.ji.m.!
Ami by i.lni, ili- mdgl i Mud, that the 9ib ob>
jecuoa being nuier of luconveniem i
ul" honour win inane red with this addition, [hut
no nnturnlmiie could make them bnronsof pnr-

llinilrlit |.| |'ii_-!i,i,| ;;.; |b(ir ib-iijlui in Srcit-

Innd, neither did naiuralt/itig give any man a
place in parliament, except lie wen
gave i.lni .my lands or gwdB except be uuuld
pnrerMM llivm.

575]

STATE TRIALS, 6 James I. 1608.— The Case of the VoslnaiL

[576

lor the matter of the great seal the judges
shewed, that the seal was alterable by the king
at his pleasure, and he might make one seal tor
both kingdoms, for seals, coyn, and league* are
of absolute prerogative to the kiug without par-
liament, not restrained 10 any assent of the peo-
ple. Bat for further resolution of this point,
how fur the great seul doth command out of
England, they made this distinction, that the
great seal was current for remedial* which grovv-
eth upon complaint of the subjects, and there-
upon writs are addressed under the great seal of
England, which are limited their precinct to
be within the places of the jurisdiction of the
courts that must give the red i esse of the wrong.
And therefore writs are not to go into Ireland,
nor the Isles, nor Wales, nor the counties pala-
tine ; because the kings courts here have not
power to hold plea of lands or things there. But
the great seal hath a power preceptory to the
person, which power extendeth to any place
where the person may be found. And for this
the lord Cook cited Nicholas Ludlowes case in
4 E. S, in the 'lower record rolulo cUiuati nu-
tncro 91 ; that Ludlow being at Rome, a com-
mandment under the great seal was sent to him
to return. So Berties case in queen Maries
time, and sir Franc. Inglefield* in queen Eliza-
beths time, the privy seal went to command
them to return into the realm, and lor not
coming their lands were seized, as appeareth
by my lord Diers report of both those rases.
So the case before of Si) E. 3, fol. 35, a parlia-
ment writ was current into Scotland, to the
earle of Angus ; and 14 II. 8, a Habeas Corpus
into the Isle of Man ; which Habeas Corpus is
a preceptory writ to have the body of his sub-
ject, and may be directed into Scotland, or any
place where the king hath ministers, otherwise
how shall the king come by the person of his
subject whom he would command. So as
where remedial writs run not, yet prccc|>-
tories under the great seal do; and therefore
the position of the great seal not to he current
in Scotland holdeth for remedials, not for pre-
ceptorics : and this dotli answer the objec-

tion, that the great seal is current in subor-
dinate kingdoms, or dukedoms, and not in all
places of the king's dominions in distinct king-
doms.

And as to the rule taken by the civilians,
' cum duo jura concur™ nt in una persona,
' aequum est ac si essent in diversis,' that holdeth
not in things personal but real: and therefore a
marquesse, that is a baron and an earle, can
by the statute of 21 II. 8, have no more chap-
lains then his best dignity alloweth, and not
for every dignity. — Aud as to the objection
that none can be born a natural subject 01 two
kingdoms, they denied that absolutely ; for al-
though locally he can be born but in one, yet
effectually the allegiance of the king extending
to both, his birthright shall extend to both. —
And as to the objection that rex et regnum be
relatives, and therefore t!:,* allegiance of a king
can extend but to tint kingdom; they an-
swered, that rex and rignu were relatives, but
rex et regnum be not *o relatives, as a kin*
can be king hut of one kingdom, for that were
proprium quarto tnodo. viz. omni> soli el temper,
which clearly holdeth not, but that his kingly
power extending to divers nations and king-
doms, all owe him equal subjection, aud are
equally born to the benefit oi his protection.
And although he is to govern them by their
distinct laws, yet any one of the people
coining into the other is- to have the benefit
of the laws wheresoever he comtth, and is to
bear the burthens and taxes of the place where
he cometh; but living in one, or for his live-
lyhood in one, he is not to he taxed in the
other, because laws ordain taxes, impositions,
and charges, us a discipline of subjection par-
ticularized to every particular nation.

Anil so these three judges delivered their Opi-
nions openly, and the rest were ready and did
affimie the same to be all their Opinions, but
only justice Walmesly who differed in the main
point, the rest were \Varhurton and Daniel, of
the Common Place, Fenuer, Williams, and Tan-
field, of the King* Lknch, Snigg aud Althain,
barons of the Exchequer.

Speech of Lord Bacon, as Counsel for Calvin, in the Exchequer Chamber.
[ From the last 4to edition of his Works, vol. ii. p. .5 1 ■!•.

May it pleise your lordships; This case your
lordships do well perceive to be of exceeding
great consequence. For whether you do mea-
sure that by place, that reacheth not only to

mus ; yet he was thought to have said l>etter,even
in the opinion of a king himself, that said,
Veritas J or tits una, tt pnrvuivf ; and I do much
rejoice to observe such a concurrence iu the

the realm oi' England, but to the whole island ; whole carriage of this cr»i«c to this end, that

of Great Britain; or whether von measure
that by time, that extendeth not only to the
present lime, but much more to future genera-
tions,

' Ft. nati natorum, ct qui nascent or ab illis.'
And therefore as th.tt i* to receive at the bar a
full and free debate, so \ doubt not but that shall
receive from your lordships p. sound oid ju»t re-
solution according to law. and according to truth.
For, my lords, though he were thought to have
f aid frail, that said that for his word, rcrfortiui-

truth may pievail. — The ca&e no feigned or
framed case; but a true case between true
parties. — The title handled formerly in some of
the king's courts, and free -hold upon it ; used
indeed by hi> majesty in his high wisdom to
give an end to this ureat qr-cjtion, but not
raided ; occusio, as the schoolmen say, arrept«f
nun jjorrectn. — The case argued in the King's
bench by Mr. Walter with great liberty, and
yet with good approbation of the court; tha
persons assigned to be of counsel on tliat side.

677]

STATE TRIALS, G James I. 1G0S.— The G;s? of tic Postnati.

[5?S

■•'•li-rior to none of the ir quality nml degree in
1 valuing; ami sum*.* of them most conversant
auid e:.eui-cd in thv question. The judges in
I lie lviii'_;"r» bench have adjourned it to th.s
fjJiico for conference with ii;e rest, of their
brethren. Your lordship, mv lord chancellor,
lliuu^h you be absolute judge m the c:urt where
you m*, and miijit have called to von vich ;>•=-
siatai:.ce ofjuJgcs as to you had stciimd p)od ;
yet would nut tore run or lead in this ca-c by
any opinion there to be ^iv en ; but have chose n
ruthrr to come yourM-h'lo this fi^L*.nb!\ ; all
Irmiiiu «* I s-ii 1f to this eail, whcivuuio I tor
my part do hetirtdy Mibsciibe, ut xtneat viritut,
dial truth may first appt .u\ and tlicii prevail.
And I do iinniv h dd, and douht n >t but I shall
well mamta-n, that this is the truth, that Cwlvin
the uiaiuli.'Tis ipso jure by the i : i .v of r«n gland
a natural born subject, to purchase ficc-hold,
and to biiiii; real actions within Kmdand. In
this ruse I mu>t so consider the time, as I must
tuuch nio:e coii&idpr ilia malt:"'. And there-
fore though it im\v draw mv speech into farri.ir
length; yet I din u it handle a case of this
Dttiire confusedly, but purpose to ol . ::rve the
ancie.it and exact form of pleadings; which is,
First, to explain or induce: Thru, to confute,
or answer objections: And hilly, to prove, or
continu.

And first fir Kxjdanaiion. The outward

question in this case is no mure, but whether a

child, bom in Scotland since his iiui'p-sty**

happy copdug to the crown of Kntdaud, he

Diuurahzrd in En id and, or no. U«:t tin in -a art!

question or Mate of the question evermore:

begiuneth, where that which ib confe^cd 0:1

both sides doth leave. — It is confessed, I bat if

the*etvso rculnis of Ki inland ai.d :-c- (land were

united under one law and o:.e pta hauteur, mid

thereby incorporated and made as one l.iag-

dt'ni, timt the I'ost-natus of Mich an uul.iu

fthcultl l>c naturalized. — It in confer-: d, that

both realms are united in tho pcis »n of our

sorerei.:n: or, In-cause I will g'.hi nothing by

lurrtption, in the pmtihij of the e;ue>tionf that

one and the same natural peivm it kiti'Md* brh

realms. — It is confe-s-ed, that the laws and p:»r-

limnMits arc several. So then, wl.eth'-r this

privilege and benefit of naturalization be an

accessary or dependency 14 on tint which i>

One and joint, or upon that which is »eveTid,

hath been, and must be the depth of thi- qucs-

Iwii. And therefore your lui'i^bips do see the

Ave ol th s- question doth evidently lead me bv

W»J of inducement to speak of three things;

thtkii.g, the- 1 iw, i.n i thu privilege of 11 iturali-

z-tti'in. \\,r it you well uuder-tand the nature

01 I lie two principal*, and auain the li:i:urc of

ihciicie^-ny; then -ball you discern to whe-

litir jinncipal the ncctasoiy doth properl ;■ refer,

•»Ji »IkiiI>*w to a body, or iron to an ad.>mant.

Ami then lore v- ur buildup:* will give me

Icate iu a ca-e ot tins tpiality, lir»t to \ :>ir and

opi'Q the foundations ami fnuut;:in> of ieas»ni,

nudnot bi^iu with the positions aial ciia! tioiis

cfa inuuiiipal law; for ?-o was th;«t doi>c io the

done in all c:-.svs oi'like nature. And this doth
not at ail detract, from the simiciency of our
laws, as incompetent to decide their own cases,
but rather uddeth a dignity unto thrm, wheu
their reason appeariui: as well as their authority
doth thew them to }.e as liae nv-nev-. which
are ciTrent not o:dv l.y the ^iiini', becau-c *\icv
are .v> received, but bv the natural metal ih.it
is t!u re:.sou and wisdom of them.

A. ul master Litiletou hui;=e!l in his wh'de
bo-.r'j doth commend but two things 10 the pro-
fos-ors of the law by the name of ids sous; the
one, the inmiii in^ and*iarchin'ii»ut. the ren-ons
ol the law ; and the other, the observing of the
tonus of pleading. And never was there any
case that came in judgment that, rcnuiic 1
more, that Littleton's advice hhoul-i he fallowed
in tho»L- two |.oiui«, than doih the present ca>j
in quotion. — And first of the king,

It is evident that all other commonwealth?,
monarchies only excepted, Ho sub-ist by a law
precedent. For where authority is divided
amongst many oilic» is, and they not perpetual,
hut animal or temi^aarv, and not to receive
their H«i:horiry, be*, by elo'iion and certain per-
sons to have voice «.mly t-> that election, :md
the like; these are husv and curious frames,
which of necessity do pre-suppose a law pio-
ceilenr, written or unwritten, to guide mid di-
rect them. But in monarchic.*, especially here-
ditary; that is, win 11 several familio or lineages
of people do submit throw Ives to one line,
imperial or royal, the Mil>ini»i<ui is more natural
and simple, jvhirh atlorwaida by laws fcuhse-
quent is pe'ifiCted and l.iade hi.'iiv formal: but
that is grounded opmi nature. That thi- is so,
it appeaivth i-orahlv in two thiliys; the one the*
pl'itfijrms a lid patterns whiih are found in
nature ofmonarcl.it > ; the 01 iiiinal Hibmi^sions,
and their h::tti\cs uad occasion*. 'J'ne phit-
forms are- thrre:

The first is that of a f lib* r, or chief of a fa-
mily ; v;ho i:ovcr.ii:i!» o\e.- lii- wile bv iuero^.1-
live ol'.-ex, «i\i r !.!■» chihl'^n by pru- »jaiive of
a^e, and bcan-e be i«» auth.or onto tin ni of bc1-
inir, and over Ins sr rvantA by pi «'rogi't:\c of vir-
tue and proihienc'C ffor he ih.it i-a.bb ofbod\,
and iiiuu'ovid'..'iit. of mind, it nutum sm;**)
that is a \crv nmdel of a kmi:. So is the m:!-
uiou of /. ri-t itie. lib. iii. i'oj. ca»». 14. wlare
he snith, * vc"ci:i auteni re^nuiii e-.-r, enin pem s
' uiiiim e>f rtrum ."timma potest »s : q<iod reg-
c nmu prini'i'ition* m fauiiba1. in.r. :t ■■r." And
then-f'-re J.ycur:.u», when one r-Mi'iM lleil hiai
to di-«ol'.C loe kmiT'lom, lllld to • -' ■bi'els H!1i>-
theT f.nn of c>t'ie, ausivi red, ' .**:r, begin t<»
'do thu which you advi>e' fr.-t at home in
' ye)iir own hotiM- ;' uotim:, that the child' of a
family U a- a Lin/; and th:-. 1 t::ose, tint can
h'l-jt eiulaie i.-oj^ a I a-.). id, can h<> content to
he l.imjs ;-.t h'tii--. And this i-» the first plai-
fi;m, which ni; m.'.' 1- m^ie'lv mitiiKd.

The second is tint of n shi-clierd nml hi*
lh»( k, wl,i( I] \eniiplioii sailh, ("». ru* b?d ever
in his nmuth. l''or shephercU me not owners
of the sheep ; hut their olDcc is to he* I and yo-

£reatcaM:uf Miriti- : an i sj ou^hi ti. t !u he I \ern. No nrue un> kin^s proprietaries or
Vol. 11. ' '2 r

579] STATE TRIALS, 6 James I. 1603.— The Case qfthe Postitati.

\szo

owners of the people ; for God is sole owner of
people. ( The nations/ as the scripture suith,
' are his inheritance :' bnt the oilice o\' kings is
to govern, maintain, and protect people. And
that is not without a mystery, thiit the first
king that was instituted by God, David, for
Saul was hut an untimely fnii', was translated
from a shepherd, as you have it in Psalm 78.
1 Et elegit David servo m suum, de grcgibus
' ovium sustulit euin, — pascere Jacob servum
1 suuin, et Israel ha»rcditatem «uam.' This is
the second platform ; a work likew ise of na-
ture.

Tl»e third platform is the government of God
himself over the world, whereof lawful monar-
chic arc a shndow. And therefore both
amongst the Heathen, and amongst the Chris-
tian^ the word, * sacred/ hath been attributed
unto kin^s, because of the conformity of a mo-
narchy with a divine majesty; never to a se-
nate or people. And so you find it twice in
the lord Coke's Reports; 'once in the second
book, the bishop of Winchester's case ; and his
fifth book, Cawdric's case. And more ancient-
ly in the 10 of Ii. 7. tbl. 11). • rex est persona
' mixta cum sneerdote;' an attribute, which
the senate of Venice, or a canton of Swisses,
can never challenge. So, we see, there be
precedents or platforms of monarchies, both in
nature, and above nature ; even from the mo-
narch of heaven and earth to the kins, if you
will, in an hive of bees. And therefore other
states are the creatures of law ; and this state
only subsist eth by nature.

For the original submissions, they are four in
number. I will briefly touch them.

The first is paternity or patriarchy, which
was when a family growing so great as it could
not contain itself within one habitation, some
branches of the descendants were forced to
plant themselves into new families ; which se-
cond families could not by a natural instinct
and inclination but ber.r a reverence, and
yield an obeisance, to the eldest line of the
ancient family from which they were derived.

The second is the admiration of virtue, or
gratitude towards merit, which is likewise na-
turally infused into all men. Of this Aristotle
putteth the case well, w hen it was the fortune
of some one mun, either to invent home arts of
excellent use towards man's life, or to congre-
gate people that dwelt scattered into one
place where they might cohibit witli more
comfort, or to guide them from a more barren
land to a more fruitful, or the like : upon these
deserts, and the admiration and reconipence o{
them, people submitted themselves.

The third, which was the most usual of all,
was conduct in war, which even in natnre in-
duceth as great an obligation as paternity.
For as men owe their lite and being to their
parents in regard of generation, so they owe
that also to saviours in the wars in regard of
preservation. And tlicrefbre we find in chap.
18 of the book of Judges, ver. 12. '. Dixeruut
1 omoes viri ad Gideon, dominure nostri, to et
• filii tuit quouiain servasii no* dc maou Ma-

' diau.' And so we read when it was brought
to the ears of Saul,- that the people sung in the
streets, 'Saul hath killed his thousand, and
* David his ten thousand' of enemies, he said
straight ways : ' quid ei superest nisi ipsum rcg-
' mini ?' For whosoever nath tlie military de-
pendence, wants little of being king.

The fourth is an in forced submission, which
is conquest, whereof it seemed Nimrod was
the first precedent, of whom it is said; ' ipse
' coppit p'ltens esse in terra, et erat robustus
4 veuator coram Domino/ And this likewise
is upon the same root, which is the earing or
gift as it were of life and being ; for the con-
queror hath power of life and death over his
captives ; and therefore where he giveth them
themselves, he may reserve upon such a gift
what service and subjection he will. — All these
four submissions are evident to be natural and
more ancient than law.

To speak therefore of Law, which is the se-
cond part of i hat which is to be spoken of by
way of inducement. Law no doubt is the
great organ by which the sovereign power doth
move, and may he truly compared to- the sinew*
in a natural body, as* the sovereignty may be
compared to the spirits : for if the sinews be
without the spirits, they are dead and without
motion ; if the spirits move in weak sinews, it
causeth trembling : so the laws, without the
kin>>'s power, are dead ; the king's power, ex*
cept the laws be corroborated, will never move
constantly, but be full of staggering and trepi-
dation. Hut towards the king himself the law
doth a double office or operation. The first it
to intitJe the king, or design him ; and in that
sense Bracton saith well, lib. 1. fol. 5. and lib.
3. fol. 107. * Lex facit quod ipse sit rex ;' that
is, it defines his title ; as in our law, that the
kingdom shall go to the issue female ; that it
shall not be deportable amongst daughters ;
that the half-blood shall be respected, and
other points riiifering from the rules of common
inheritance. The second is, that whereof we
need not fear to speak in good and happy
times, such as these are, to make the ordinary
power of the king more definite or regular ; tor
it was well said by a father, * plenitude potes-
' tntis eat plenitudo tempestatis.' And al-
though the king, iti his person, be tolutut legi»
bus, yvt his acts and prints are limited by law,
and we argue thrm every day.

Rut I demand, do the*« ollices or operations
of law evacuate or trust n.te the original sub-
mission, which wirt n.u<:r:il ; or shall it he said
that m!1 allegiance is by law ? No more than it
can be said, that jO'et'nspatris, the power of
the father over the clu)d, is by law: and yet
no d<>uht laws do diverslv define of that also;
the law of some nations having given fathers
power to put their children to death ; others,
to sell I hem thrice ; others, to disinherit them
by testament at pleasure, and the like. Yet
no nmn will ailirm, that the obedience of the
child is by law, though laws in some points do
make it more positive : and even so it it of al-
legiance of subjects to hereditary monarch*,

»1]

STATE TRIAIJS, 6 James I. 1G0S — The Case of the Postnaii.

[5S3

which it corroborated and confirmed by law,
but is the work of the law of nature. And
therefore you shall find the observation true,
■lid almost general in all states, that their law-
givers were Ions after their first kings, who go-
verned for a time by natural equity without
law. So was Theseus long tiefore Solon in
Athens : so was Eurytion ai:d Sous Inn;; before
I.ycurgus in Sparta : so was Romulus long be-
fore the Decemviri. And even amongst our-
selves there were more ancient kings of the
Saxons ; nod yet the laws ran under the name
of Edgar's laws. And in the refounding of the.
kingdom in the person of William the Con-
oueror, when the laws were in some confusion
for a time, a man may truly say, that king
Edward 1 was the first lawgiver, who enacting
some htws, and collecting others, brought the
law to some perfection. And therefore 1 will
conclude this point with the stile, which divers
acts of parliaments do give unto the king ;
winch term him very effectually and truly,
' oar natural sovereign liege lord.' And as it
was said by a principal judge here present
when lie served iu another place, and question
was moved by some occasion of the title of
BullehVs lands, that he would never allow, that
queen Elizabeth (I remember it for the efficacy
of the phrase) should be a statute queen, but a
common-law queen : so surely 1 shall hardly
consent, that the king shall be esteemed or
called only our rightful sovereign, or our law-
fid sovereign, but our natural liege sovereign ;
ss acts of parliament speak : for as the com-
mon law is more worthy than the statute law ;
so the law of nature is more worthy than them
both.

Having spi ken now of the king and the law,
it remaineth to speak of the privilege and be-
nefit of Naturalization itself; and that accord-
ing to the rules of the law of England. — Na-
turalization is best discerned iu the degrees
whereby the law doth mount and ascend there-
■uto. For it seemeth admirable unto me, to
consider, with what a measured hand, and with
how true proportions, our law doth impart and
confer the several degrees of this l>enelit. The
degrees are four.

The first degree of persons, as to this pur-
!***> that the law takes knowledge of, is an
•lien enemy ; that is, such a one as is born
wider the obeisance of a prince or stnte that
i'in hostility with the king of England. To
(his person the law giveth no benefit or pro-*
lection at all ; but if he come into the realm
after war proclaimed, or war in fact, he conies
st his own peril, he may be used as an enemy :
for the law accounts of him but, as the scrip-
tare saith, as of a spy that comes to sec the
weakness of the land. And so it is in '2 llich.
3p fid. ft. Nevertheless, this admitteth a dis-
tinction. Epr if he come with safe-conduct
otherwise it is : for then he may not be violated,
vJthtr in person or goods. Hut yet he must
fetch his justice at the fountain-head, for none
of the conduit pipes are open to him : he can
tot no remedy in any of the kiug's courts ;

hut he must complain himself before the king's
privy counsel : there he shall have a proceed-
ing summury from hour to hour, tire cause shall
be determined k>v natural euuuv, and not bv
rules of law ; and the decree of the counsel
shall be executed by aid of the Choncerv, us
iu 13 Ed. 4. And this is the first degree.

The second person is an alien friend, that is,
such a one as is born under the obeisance of
such a king or state as is confederate with the
king of England, or at least not in war witli
him. To this person the law allottcth this be-
nefit, that »s the law accounts, that the hold it
hath over him, is but a t ran si tor) hold, for he
may he an enemy; so the law doth indue him
hut with a transitory benefit, that i«, of move-
able poods and personal actions. But for
free-hold, or lease, or actions real or mixt, he
is not enabled, except it be in autre droit.
And so it is 0 Ed. 4. fol. 7. 19 Ed. 4. fol. 6.
5 Mar. and divers other books.

The third person is a denizen, using the word
properly, for sometimes it is confounded wiih a
natural born subject. This is one that is but
xubditus infitivus, or adopt ivu*, and is never by
birth, but only by the king's charter, and by no
other mean, come he nc\er so young into the
realm, or st;iy he never so long. Mansion or
habitation will not indcuize him, no, nor 5 v\ ear-
ing obedience to the king in a leet, which doth
in law the subject ; but only, as I said, the
king's grace and gift. To i his person the law
giveth an ability and capacity abridged, not iu
matter, but in tune. And as there wns a time
when he was not subject, so the law doth not
acknowledge him before that time. For if he
purchase free-hold after his denization, he may
take it ; but if he have purchased any before,
he shall not hold it : so if he have children
after, they shall inherit; but if he have any
before, they shall not inherit. So its he is hut
privileged a parte post, as the schoolmen say,
and not a) parte ante.

The fourth and last degree is a natural born
subject, which is e\ermoie by birth, or by net
of parliament; and he is complete and entire.
For in the law of England there is nil ultra,
there is no more subdivision or more subtle di-
vision beyond these. And therein it seemeth
to me, that the wisdom of the law, as 1 said,
is to be admired both ways, both because it
distinguished so far, and because it doih not
distinguieh farther. For 1 know that other
laws do admit more curious distinction of this
privilege : for the Romans had beside:* jut ciri-
tatis, which amwercth to naturalization, jut
tufinifiii. For although a man were natura-
lized to take lands and inheritance, yet he was
not enabled to have a voice at passing of laws,
or at election of officers. And vet farther
they have jus petitumi*, or jut bunorum.
For though a man had voice, yet he was not
capable of honour ond oihee. Hut these be
the devices commonly of popular or free es-
tates, which are. jealous whom they take into
their number, and arc unfit for monarchies.
But by the law of England the subject, that is

5S3]

STATE TRIALS, C James I. 1605.— The Case of the rostnati.

[5S±

natural horn, li:itli a capacity or ability f« all
lieueiiis uliui^jf vcr ; I say rapuci'y or ability ;
but to re; luce putt'.ntim in m-'itti, is another
case. For »n earl of Ireland, though lit* he
naturalized in Filmland, yet hath ni»"v.»i»*e in
l lie parliament of Fugland, except. Li* have
either n call by writ, or creation by patent ;
but lie is capable ot' either.

But upon this quadriparte division of the
ahi.ity of person-*, 1 do ohserve to your lord-
ships three things, being all effectually perti-
nent to the question in hand.

The lir*t is, that if any rtian conceive that
the reasons tor the Post-nati, might serve as
well for the Ante-nati, he may by the distribu-
tion which we have made, plainly perceive his
error. For the law looketh not. back ; and
therefore cannot, by any matter er post facto,
after birth, alter the state of the birth ; wherein
no doubt the law hath a izravu and profound
reason ; which is this, in few word**, ncim) su-
bifo jingifur ; idiud tat nusci, uliiul fieri. We
indeed more nspect. and alfert th.isc worthy
gentlemen of Scotland, whose merits and con-
versation we know ; but the law, that proceeds
upon <:tnrr.d tc-isou, and looks upon no mens
tai.es, niVectcth and privihgeth tlm?e which
drew tilth* tirst-bieath under the obusance of
the km*' of Kn-Jaud.

'lhe second puiut is, that bv th<* former dis-
tribution it nppe.irctn that tin re be but two
conditions by hirth, either alien, or natural
born; nam tcrtium prnitm ignoramus. It is
manilest then, thai if the IVst-nati of Scot-
land he not natural l>orn, they are alien born,
and in no better degree at. all than Flemings,
French, Italians, Spanish, (Icrmans, and others,
which :ire all at this time aliea lVii nd<, by rea-
son I is majesty is in peace \.ith all the world.

lhe third point srciiictii to me very worthy
the consideration, which is, that in all the dis-
tributions of persons, and lhe decrees of abi-
lities* or capacities*, the kind's act i> all in all,
without any manner of respect to law or pi»r-
li-jiucnt. For it is the kinjr that makes an alien
enemy, by proclaiming a war, wherewith the
law cr p.irliament intermeddles n-jf. So the
king only grants safe-conducts, wherewith law
and parliament intermeddle not. Ir is the kins
likewise thr.t maketh an alien friend, bv cnu-
cluilit'i; :i peace, wherewith law and paihament
intermeddle not. It is the kin:; that make* a
den 'en bv his ck.iinr, sd-olutelv of lus pie-
rnua-i\e iin.l power, wl.erc.uth law and parlia-
ment iu;?ni'.:->!dle. not. And tl:.:i .«i,e it is
sti'ini'jly to i.e in "erred, that n* a!l there de-
grcts deptud wholly i.pmi iho ki::^"- act, and
i:o ways npmi law or pKi'iamcnt ; y» the fourth
alth<m-!i ii cumes not by ti..- kind's pattui, hut
by op latioii of law, yet that tl»e law, in that
ope. at um, rcii-efetli only the kn.^'s person,
without re*.pei't of Siibjcelioii to law or parlia-
ment. And thu» much by way of explanation
and inducement: which being all matter in
eilert c*(nfi"wii, is the strongest vrouud-work
to that which is contradicted or controverted.

There follow el h the confutation of the argu-

ments on the contrary side. Thai which hath
bet n materially objected, maybe reduced to
four heads.

The fust is, tint the priviU^e of naturaliza-
tion fdlowcth allegiance, and that allegiance
followeth the kingdom.

The second is drawn from that conimou
; ground, * cum duo jura cmcununt in una per-
4 y>n;i, aeqimin esc ac si ersent in duohus;' a
rii!<«, the word* whereof an- taken froai the
cnil law; but the matter of it ii received in all
laws ; beini; a very hue or rule of reason, to
avoid contusion.

The thiid consisteth of certain in convenien-
ces conceived to ensue oi' thi*> general natura-
lization, t/'Ao jure.

The fourth is not properly an objection, but
a preoccupation o! an objection or pi oof on
our p«Tt, by a distinction deviled between
countries devolute by descent, and acquired by
conquest.

For the first, it is not amiss to oSseive that
those who maintain this new opinion, whereof
there is all urn siUntium in our books of law ,
are not well agreed in what form to utter
and cxpre.-s that: lor some said that alle-
giance hath respect to the law, some to tins
crown, some t> the kingdom, some to the body
politic oi the king : m> there is confusion
of tongues nmongsi them, as it commonly
Cometh to pas* m opinions that ha\e their
foundations in subtilty and imagination of man •
wit, and not in the ground of nature. But lo
leave their words, and to come to their proofs :
they endeavour to prm e this conceit by three
manner of prooh : lict, by reason; then, by
certain inferences out of statutes ; and lastly,
hv ci rtain hook-cant"*, mentioning and reciting
the fornix of pleading.

The reason they h.iuj_r i*» this: that naturali-
zation i> an operation of the law of F.ujlau.t ;
and »o indeed it is, thai may be the tnu* ^tiiuj
of it.

Then they ad 1, that granted, that lhe h.w of
Kuiilairl i" of lo!*(v nnty within the kingdom
:i:td dnminjuiH of Lje'lanil, and cannot operate
I-i.t wiure it i* :u l'Ji'.e. lint the law i* iu>t in
lore* in Scotland, ii.i-nlorr; that cannot ennuie
this hunt iu ul iiatr.ra.i/uiion by u hirlii in >col-
laud.

1 hl> reus mi is plausible Mid sensible, but ex-
li'i'tuelv eiroi.ious. For tl.e law of Kiti>luiid.
i for matt-. r> of la in. lit. or foneitures in Knglaud,
Op. rati ll» o\cr t;;e v.i.rld. And becai^e it i*
tail) snd thnt * re»publica rontiufctur poena et
' pn. ■iiii-*/ 1 \iill put a ca.^e or two of either.

It i> pi.un that it' a Mibject of England had
(oi.-pircd tiic death of the king in foreign parts,
v. w:is hv the common law of Knjland treRaou.
1i>m\ ] nive 1 that? Hy the statute of So 11. tt,
■ ■■;». 'J : w herein von «>hall tind no words at all
el i:.:.ku •_' any n« w ea^e of treason which was
imii. ir. ason befnre, but only of ordaining a form
ol 1 1 i.tl ; trsoy it was treason before : and if m9
tin u the law of Kiciland works in foreign (tarts.
S> «if i onteiupts, il' the king send his privy seal
to any suLytct beyond the seas, coaiaaudiag

565]

STATE TRIALS, 6 James I. 1G03— The Cast qftht Toitnati.

[586

him to return, and lie disobey, no man will
dvubt but tin- re is a contempt, and yet the fact
enduring ihc contempt was commuted in fo-
reign parts.

Therefore the law of Endaud doth extend to
acts or matters dune in fnrr.uu pans. So of re-
ward, privilege or henutit, we need seek no
other instance than the instance in quc^ti^n ;
for I will put you a case that no inmt shall deny,
where the luw of Englaud doth work and cooler
the benetit of naturalization upon u birth nei-
ther within the dominions of the kingdom, nor
k inn of England. By the statute of vo FM. J,
which, if v»u Mtd believe liussey, is but a de-
claration of the common law, all children born
in any pans of the world, if they be of English
paieuts continuing at that time us liege subjects
to the king, mid having done no act to forfeit
the lien etit of tlitir allegiance, are ipso Jut' to
nal'ti <dized. Nay, if a man look narrowly into
the law iu this point, he shall find a con&e-
queuce that may seem at the first strung?, but yet
cannot be we.l avoided ; which is, that if divers
families of E-ighsh men and women plant thcin-
Klves at Midulc borough, or at Roan, or at
]«iabou, und have issue, and their dependents
do intermarry uni-,u^st themselves, wii limit any
intermixture of foreign blood; such dependents
are naturalized to all generations: lor every ge-
neration is >till of liege parents, and therefore
naturalized : so as you may have whole tribes
and lineages of English in foreign countries.

And tiiereioie it is utterly untrue that the
law »if England cannot operate or confer natu-
ralization, but only within the bounds of the
iIumu ii Kiiis ol England.

ioc-tme now to I heir inferences upon sla-
t'itc*.

Ihc first is nut of this statute which I last
rented. In which statute it is said, that in four
iiUTil pieces tl'pie an* these words, * bom
* ttiihiu the ulh-gumce of England ;' or again,
' bi»ni without the udeginuce of England ;'
*hirh, s;iy ihey, appliis the allegiance to the
kingdom, and nut to the persuu of the king.
lw tins the answer is easy ; lor there is no
Ir-ijie i it speech mure familiar thin to use the
piute of addition for the person. So we tay
c«iiim<ji.ly, i Le line of York, or tin* line of
•Lancaster, lor the lines of the duke of York, or
the duke of Lancaster. So we say the posses-
ions of Somerset or Warwick, intending the
poucfeioiis of the dukes of Somerset or carls of
Waraifk. So we see earls sign, Salisbury,
Northampton, tin1 the earls of Salisbury or
NfNihuii.ptoii. And in the very «unc manner
ibe statute spunk**, allegiance of England, for
nuenanre of the king of England. Nav more,
a were kid been no variety in the penning of
(but statute, tins collection had had a little
More three; fur those words might ha\e been
thought to ha\e Ijeeu used of purpose and in
propriety; but you may liud in three other sew -
ml places of the statute, allegiance, and obei-
Mna.- of the king of England, and especially in
we mat. rial and concluding place, that is to
*J, dultlren whose pannN were at the time of

[ their birth at the faith and obeisance of the
, king of England. So that it is manifest by this
i iudui'erent and promiscuous use of both phrases,
• the one proper, the other impro^ei, that no
1 man can ground any inference upon tlieso
words, without danger of ca\ illation.

The second statute, out of which they infer,
is a statute made in 3 J Hen. 8, touching the
■ policy o( strangers tradesmen within tins realm.
For ihc parliament finding that they did eat
the Englishmen out of trade, and that they en-
tertained no apprentices! but of their ow it na-
tion, did prohibit that they should receive any
apprentices but the king's subjects. In whicti
statute is said, that in nine several places there
is to be found this context of words, ' aliens
' born out of the king's obedience ;' which is
pregnant, say they, und doth imply that there
be aliens born within the kings obedience.
Touching this inference, 1 have heard it said,
1 qui hanct in littra, hsret in cortice;' but this
is not worthy the name of cortex, it is but w«f-
cus cor tic is, the moss of the bark. For it is
evident that the statute meant to speak clearly
and w ith >ut equit ocation, and to a common un-
derstanding. Now then there are alii ns in com-
mon reputation, and aliens in pneise construc-
tion oiltu; the statute then meaning not to
comprehend Irishmen, or Jerstynfen,or Calais-
men, for explanation sake, lest the word alien
might be exi ended to them in a vulgar accept-
ance, added those further words, * born out of
* the king's obedience/ Nay, wliat if we should
say, tiiat those words, according to the rictived
law* of speech, are no words of ditlerence or
iiinitali* u, but of declaration or di script ion of
an alien, an if it had been said with a \idt licet,
alien*; tint is, such as are born out of the
ki g's uhed encc ? Ihey ran not put us from
that construction. But sure I am, ifti.e bark
make lor them, the pith makes for us ; for the
privilege of liberty which the statute means lo
deny to alt us of cnvi taiiiing apprentices, is
denied to none born v.itliiu (lie king's obedi-
ence, call thi in a.iens or what vnu will. Aud

m

therefore b\ their reason, a L'oM-natus of Scot-
land .-ball nv that statute keen what si ranger
apprentices he will, und so is put iu the decree
of an English.

The third statute, out of which infertile is
made, is the statute of 14 E. 3. cap. solo, which
hath been said to be our very case ; and 1 am
of that opinion too, but dhictly the other way.
Therefore to open the -cope and purpose of
that statute : after that the title to the crown
"f France was devolute to king E. 3. and that
iie had clringrd his stile, changed his anus,
changed l.i« seal, as his majesty hath done, the
subjects of England, saith tl. e statute, conceived
a fear that the redm of England might become
subject to the leahn of France, or to the king
asking of France. And I will give you the
leasous of the double fear, that it should be-
come subject to the realm of France. They
had this reason of fear. Normandy had con-
quered England; Normandy was feudal of
France. 1 here fore because the superior seig-

5S7]

STATE TRIALS, 6 James I. 1608.— 77* Case (J the Postnati.

[5SS

niory of France was now united in right with
the tenancy of Normandy, and that England,
ia regard of the conquest, might be taken as a
perquisite to Normandy, they had probable
reason to fear, that the kingdom of England
might be drawn to be subject to the realm of
France. The other fear that England might
become subject to the king as king of France,
grew no doubt of this foresight, that the kings
of England might be like to make their man-
sion and seat of their estate in. France, in regard
of the climate, wealth, and glory of that king-
dom; and thereby the kingdom of England
might be governed by the king's mandates and
precepts issuing as from the king of France,
but they will say, whatsoever the occasion was,
here you have the difference authorised of sub-
jection to a king generally, and subjection to a
king as king of a certain kingdom. But to this
I give an answer three-fold.

First, it presseth not the question ; for doth
any roan say that a Postnatus qf Scotland is na-
turalized in England, because he is a subject of
the king as king of England ? No, but gene-
rally because he is the king's subject.

Secondly, the scope of this law is to make a
distinction between crown and crown ; but the
scope of their argument is to make a difference
between crown and person.

Lastly, tliis statute, as I said, is our very
case retorted against them -? for this is a direct
statute of separation, which presupposeth, that
the common law had made an union of the
crowns in some degree, by virtue of the union
in the king's person, if this statute had not
been made to stop and cross the course of the
common law in that point ; as if Scotland now
should be suitors to the king, that an act might
pass to like effect, and upon like fear. And
therefore if you will make good your distinction
in this present case, shew us a statute for that.
But I hope you can shew no statute of sepa-
ration between England and Scotland. And if
'any man say that this was a statute declaratory
of the common law, he doth not mark how
that is penned : for after a kind of historical
declaration in the preamble, that England was
never subject to France, the body of the act
is penned thus : " the king doth grant and
establish ;" which are words merely introduc-
tive nova legit, as if the king gave a charter of
franchise, and did invest, by a donative, the
subjects of England with a new privilege or
exemption, which by the common law they
had not.

To come now to the book-cases which they
put; which I will couple together, because they
receive one joint answer.

The first is 42 E. 3. fol. where the book
saith, exceptionwas taken, that the plaintiff was
born in Scotland at Ross out of the allegiance
of England.

Tlie next is 82 H. 4. fol. 38. Adrian's case ;
where it pleaded, that a woman was born at
Bruges out of the allegiance of England.

The third it 13 Eliz. Dyer, fol. 300. where
the case begins thus : * Dr. Story qui notorie

' dignoscitur esse subditus regni Angliae.' In
all these three, say they, that is pleaded, that
the party is subject of the kingdom of England,
and not of the king of England.

To these books 1 give this answer, that they
be not the pleas at large, but the words of the
reporter, who speaks compendiously and nar-
ratively, and not according to the solemn words
of the pleading. If you find a case put, that
it is pleaded a man was seised in fee-simple,
you will not infer upon that, that the words of
the pleading were mfeodo simpiici, but si6i et
haredibus suit. But shew me some precedent
of a pleading at large of natus tub ligeantia
regni Anglia ; for whereas Mr. Walter said
that pleadings are variable in this point, he
would fain bring it to that ; but tliere is no
such matter; for the pleadings are constant and
uniform in this point. Tlu-y may vary in the
word Jidet or ligeantia, or obedient ia, and soma
other circumstances. But in the form of regni
and regis tliev vary not : neither can there, as
I am persuaded, be any one instance shewed
forth to the contrary. Sec 9 Eliz. 4 liaggot's
Assize, fol. 7. where the pleading at large is
entered in the book. There you have ulieni-
gena natus extra ligeantiam domini regit An-
glia. See the precedents in the book oi' Entriet,
pi. 7 and two oflier places ; for there be no
more : und there you shall find still tub ligeantia
domini regit, or extra ligeantiam domini regit.
And therefore the forms of pleading, which are
things so reverend, and are indeed towards the
reasons of the law, as palma and pugnut, con*
taining the reason of the law, opened or un-
folded, or displayed, they make all for us.
And for the very words of reporters in books,
you must acknowledge and say, ilicet obruimur
nurnero. For you have 22 Ass. pi. 25. 27 Ass.
tlie prior of Shells case, pi. 48. 14 II. 4. fol.
Id. 3 H. 6. fol. 35. 6 II. 8 in my lord Dyer,
fol. 2. In all these books, the very words of
the reporters have ( the allegiance ot the king,'
and not, the allegiance of England. And the
book in the 24 Edw. 3. which is your best
book, although while it is tossed at the bar, you
have sometimes the words ' allegiance of Eng-
land,' yet when it comes to Thorp, chief jus-
tice, to give the rule, he saith, ' we will be cer-
* tined by the roll, whether Scotland be within
' the allegiance of the king.' Nay, that farther
form of pleading beateth down your opinion,
that it sutiiceth not to say that he is burn out
of the allegiance of the king, and stay there,
but he must shew in the affirmative, under the
allegiance of what king or state he was bora.
The reason whereof cannot be, because it may
appear whether he be a friend or an enemy,
for that in a real action is all one. Nor it can*
not be because issue shall be taken thereupon;
for the issue must arise on the other side upon
indigena pleaded and traversed. And there*
fore it can have no other reason, but to ap-
prize the court more certainly, that the coun-
try of the birth is none of those that are sub-
ject to the king.

As for the trial! that it should be impossible

569]

STATE TRIALS, 6 James I. '1608.— Tfa Case of the Postnati.

[590

to be tried, I bold it not worth the answering ;
lor the venire facias shall go either where the
natural birth is laid, although it be but by fic-
tion, or if it be laid according to the truth, it
•ball be tried where the action is brought,
otherwise, you fall upon a main rock, that
breaketh your argument in pieces; for how
should the birth of an Irishman be tried, or of
a Jerwymati ? Nay, how should the birth of
a subject be tried, that is born of English pa-
rents in Spain or Florence, or any part of the
world ? For to all these the like objection of
trial may be made because they are within no
counties: and this receives no answer. And
therefore I will now pass on to the second main
arcument.

It is a rule of the civil law, say they, cum duo
yard, Ace. when two rights do meet in one
person, there is no confusion of them, hut they
remain still in the eye of law distinct, as if they
were in several persons: and they bring ex-
amples of one man, bishop of two sees, or one
parson that is rector of two churches. They
say this unity in the bishop or the rector doth
not create any privity between the parishioners
or dioceseners, more than if there were several
bishops, or several parsons. This rule I allow,
as was said, to be a rule not of the civil law
only but of common reason, but receiveth no
forced or coined but a true and sound distinc-
tion or limitation ; which is, that it evermore
nuleth and deceiveth in cases where there is
anj vigour or operation of the natural person ;
for generally in corporations the natural body
is but tuffulcimentum corporis corpora tif it is
hot as a stock to uphold and bear out the cor-
porate body ; but otherwise it is in the case of
the crown, as sliall be manifestly proved in due
place. But to shew tliat this rule receiveth
this distinction, J will put hut two cases. The
statute of 91 Hen. 8. ordaineth that a marquis
nay retain six chaplains qualified, a lord trea-
, Mrrr of England four, a privy-councellor three,
i The lord treasurer Paulet was marquis of Win-
chester, lord treasurer of England, and privy-
cminsellor, all at once. The question was,
•aether he should qualify thirteen chaplains ?
Ntw by the rule cum duo jura he should ; hut
adjudged, be should not. And the reason was
because the attendance of chaplains concerned
•ad respected his natural person ; he hud but
aw soul, though he had three offices. The
other case which 1 will put is the case of
homage. A man doth homage to his lord for
a tenancy held of the manor of Dale: there
deacendeth unto him afterwards a tenancy held
of the manor of Sale, which manor of Sale is
likewise in the hands of the same lord. Now
by (be rule cum duo jura, he should do homage
•gab, two tenancies and two seigniories, though
wt one tenant and one lord, aguum est ac ti
°*t in duobuM. But ruled that he should not
do homage again. Nay in the case of the king
■c should not pay a second respect of homn<re,
*s upon crave and deliberate consideration it
*■• resolved, 24 II. 8. and vrus tcaccurii, as
tbtrt is said, accordingly. And the rcisoit i-

no other, but becahse when a man is sworn to
his lord, he cannot be sworn over again : he
hath but one conscience, and the obligation of
this oath trencher h between the natural person
of the tenant and the natural person of the lord.
And certainly the case of homnge and tenure,
and of homage liege, winch is one case, are
tilings of a near nature, save that the one is
much inferior to the other: hut it is good to
heboid these great matters of state in cases of
lower element, as the eclipse of the sun is used
to he in a pail of water.

The third main argument containeth certain
supposed inconveniences, which may ensue of
a general naturalization ipso jure9 of which
kind three have been specially remembred'.—
The first is the loss of profit to the king upon
letters of denization and purchases of aliens. —
The second is the concourse of Scotsmen into
this kingdom, to the infcebling of that realm
of Scotland in people, and the impoverishing
of this realm of England in wealth. — The third
is, that the reason of this casestayeth not within
the compass of the present case ; for although
it were some reason that Scotsmen were natura-
lized, beini people of the same island and lan-
guage, yet the reason which we urge, which is, .
that they are subject to the same king, may be
applied to persons every way more estranged
from us than they are? as if in future time in
the king's descendants, there should he a match
with Spain, and the dominions of Spain should
be united with the crown of Enclaud, by one
reason, say they, all the. West- In dies should be
naturalized ; which are people not only altcriut
io!i but ulterius cceli.

To these conceits of inconvenience, how
easy it is to give answer, and how weak they
are in themselves, I think no man that doth
attentively ponder them can doubt. For how
small revenue can arise of such denizations ;
and liow honourable were it for the king to
take escheats of his subjects, as if they were
foreign cis, for seizure of aliens lands are in re-
gard the king hath no hold or command of
their persons and services: every one may per-
ceive. And for the confluence of Scotsmen, I
think, we all conceive the spring-tide is past at
the king's first coming in. And yet we see very
few families of them thaoughout the cities and
boroughs of England. And for the natura-
lizing of the Indies, we can readily help that,
when the case comes; for we can make an act
of parliament of separation, if we like not their
consort. But these being reasons politic, and
not legal, and we arc not now in parliament,
but before' a judgment-seat, I will not meddle
with tbera, especially since I have one answer
which avoids and confounds all their objections
in law ; which is that the very self-same objec-
tions do hold in countries purchased by con-
quest. For in subjects obtained hy conquest,
it were more profit to indenizate by the poll ;
in subjects obtained by conquest, they may
come in too font. And if king Henry 7 had
accepted the offer of Christopher Columbus,
whereby the crown of Englaud had obtained

591]

STATE TRIALS, C James I. 160S.— TIic Case of the Postnati.

[593

the Indies by conquest or occupation, all the
Indies had been naturalized by the confession
of the adverse part. And therefore since it is
confessed, that subjects obtained by couqucst
are naturalized, and that idl these objections
arc common and indifferent, as well to case of
conquest as case of descent, these objections
are in themselves destroyed.

And therefore, to proceed now to overthrow
that distinction of descent and conquer. Pinto
saith well, the strongest of all authorities is, if
u man can allerigc the authoiity of his adversary
against himself. We do urge the confession
of the other side, that they confessed the Irudi
arc naturalized : that they confess the subjects
of the isles of Jersey and Guernsey, and Ber-
wick, to be naturalized ; and the subjects of
Calais and Tournay, when they were English,
were naturalized; as you may Hud in the 5
Eliz. in Oyer, upon the question put to the
judges by sir Nicholas Bacon, lord keeper.

To avoid this, they Hy to a difference, which
is new-coined, and is — I speak not to the dis-
advantage of the persons that use it, for they
are driven to it taaquam adullimum refuuium,
but the difference itself— it is, I say, full of ig-
norance and error. And therefore, to take a
view of the supports of this difference, they
alledge four reasons.

tcrly repugnant, and differing from the laws of
England. And hereof many ancient prece-
dents and records may be shewed, that the
reason why Ireland is subject to the lawn of
England is not ipso jure upon conqutM, but
grew by a charter ot king Jolm ; and th.it ex-
tended but to so much as was then in the kings
possession ; furtlicre arc records in the time of
king E. 1. nnd 2, of divert particular grants to
sundry subjects of Ireland and their heir-, that
tlkey might use and observe the laws of F.ug-
land.

The third reason is, that there is a politic ne-
cessity of intermixture of people in case of
subjection by conquest, to remove ?'Ik nations
of mind, and to secure the state; whit h hold-
eihnot in case of descent. Here I perceive
Mr. Walter hath read somewhat -in matter of
state : and so have I likewise ; though we may
both quickly lose ourselves in causes of this
nature. I find by the best opinions, that there
he two means to assure and retain iu obedi-
ence countries conquered, both very differing,
almost in extremes, the one towards the other.

The one is by colonies, and intermixture of
people, and transplantation of families, which
Mr. Walter spoke of; and it was indeed the
Roman manner ; but this is like an old relic,
much reverenced and almost never. used. But

The first i«, that countries of conquest are : the other, which is the modern manner, and
made parcel of Kngland, because they are ac- j almost wholly in practice and use, is by gar-

quired by the arms and treasure of England.
To this I nnswer, that it were a very strange
argument, that if I wax rich upon the manor
of Dale, and upon the revenue thereof pur-
chase a close by it, that it should make that
parcel of the manor of Dale. But I will set
ibis new learning on ground with a question or
case put. For I oppose them that hold tliis
opinion with this question, if the king should

risons and citadel?, and lists or companies of
men of war, and other like matters of terror
and bridle.

To the first of these, which is little used, it
is true that naturalization doth conduce; but
to the latter it is utterly opposite, as putting
too great pride and means to do hurt in those
that arc meant to be kept short and low. And
yet in the very first case, of the Roman pro-

conquer any foreign country by an army com- ceedmg, naturalization did never follow by
pounded of Englishmen and Scotsmen, as it is ; compiest, during all the growth of the Roman
like whensoever wars arc so it will he, I de- ! empire ; but was ever conferred by charters,

mand, whether this country conquered shall be
naturalized both iu Kngland and Scotland, be-
cause it was purchased by the joint arms of

or donations, sometimes to cities and towns,
sometime* to particular persons, and sometimes
to nations, until the time of Adrian the em-

both? And, it yea, whether any man will think i peror, and the law in orbv. liomuno ;* and that
it reasonable, tint Mich subjects be i.uUiralizcd j law or constitution is not referred to title of
in both kin ".joins; the one kingdom not beiuz ; conquest and arms only, but to all other tiller;

a«t hv the donation nnd testament of kings, by
submission and dedition of Mates, or the like;

naturalized towards the other ? The^e are the
intricate consequences of couceit*.

A second reason rhev aliedse is, that coun- i so as this difference was as *tran,*e to them as
tries won bv conquest become <iibjcct to the ! to u«. And certainly I suppose it will sound
laws of EnghiiH, which countric- patrimonial ; strangely iu the hearing of foreign nations, that

are not : and that the l.iw duth draw the a!h- ! — ■

giance, and allc^nnce ii.iltirah/ati->ii. I r " The- law lure alluded t.« by lord Bacon n

But to the major proper ion of tint nrgu- one, by which the nnporor Antoninus Cani-
lueni, touching the dependency »>f allej: -mce j calia communicated ihc rights «»f a Roman ci«
upon law, &>mewhut h ith been already spoKen, ; tizen to the n hole Roman empire. It is no-
Hiid full answer shall be nivon when we come j lieed in Justinian's Digest, lib. 1. tir. 5. 1. 17,
to it. But in this pluv it shall quince to s.iv, ■ and in Novell. 7v>. c. 5. Aiiimiiiius Pius and

that the minor propositi >:i is false : that is. that
the laws of England arc not supe; induced upon
any country by c inquest; but thut the old
laws remain until the king by his procl.miation
or letters patent declare oilier laws ; and then
it* be will be may declare laws which be ut-

other emperors have been named as authors of
the law. But llcinecciu-*, who is very full and
satisfactory oix the point, is clear in opinion,
that this extension was first made by CaracaUa.
Htfinecc. S)ntagm. Append, lib. 1. s. 15."
Ilargravc.

593]

STATE TRIALS, G James I. 1608.— Hie Case of the Postnatu

[594

the law of England should ipso facto, natura-
lize subjects of conquest*, and should noi na-
turalize subjects which crow unto the ki.ig by
dtsceut ; that is, that it should confer the be-
nefit and privilege of naturalization upon such
as cannot at the first hut bear hatred and rnn-
cour to the state of Filmland, and have had
their bands in the blood of the subjects of
England, and should deny the like benefit to
those that are conjoined with them by a more
amiable mean ; and that the hiw of England
should confer naturalization upon blaves and
vassals, for people conquered ure no better in
the beginning, and should deny it to freemen*.
1 say, it will be man tiled at abroad, of wh.il
complexion the laws of England le undo, that
brectieth such diiit'rcurt*. But tl-feis i'tvie
danger of such scandals ; for this i«* a diiVer-
ence that the law of Enyhnd never knew.

The fourth reason 4if this deference i>, that
in case of conquest the territory united can
never be separated again. But in ca&o of de-
scent, there is a possibility. If ius majesty's
line should fail, the kingdoms may sever agaiu
to their respective heirs; as in the case of 8
H. 6, where it is said, that if land defend to
a man from the ancestor on the part of his
father, and a rent issuing out of it from an an-
cestor on the part of the mother; if the party
die without issue, the rent is revived. As to
this reason, I know well the continuance of
the king's line is no less dear to those that al-
Itdge the reason, than to us that confute it. So
as I do not blame the pressing of the reason.
But it is answered with no great difficulty. For
first, the law doth never respect remote and
foreign possibilities, as notably appeared in the
treat case between sir Huuh (',' holm ley and
Houlford in tlie Exchequer, where one in tie
remainder, to the end to bridje tenant in t =■ i I
from suffering a common recovery, granted his
remainder to the king ; and because he would
be sure to have it out again without charge or
trouble when his turn was served, he limited it
to the king during the life of tenant in t-iil.
Question grew, whether this grant of remainder
were good, yea or no. And it was said to be
frivolous and void, because it con Id never by any
possibility execute; for tenant in tail cannot
surrender; and if he died, the remainder like-
wise ceased. To which it was answered, that
there was a possibility that it in ight execute,
which was thus : put case, the tenant in tail
ihould enter into religion, having no issue ; then
die remainder should execute, and the king
should "hold the land during the natural life of
tenant in tail, notwithstanding his civil death.
But the court una voce exploded this reason,
and said, that monasteries were down, and en-
tw into religion gone, and they must be up
■giro ere this could be; and that the law did
not respect such remote and foreign possibili-
ties. And so we may hold this for the like :
fa" I think we all hope, that neither of those
days shall ever come, either for mona>n in .s to
I* restored, or for the king's line to fail. Hut
die true answer is, tint the possibility subsc-

VOL. II.

qucnt, remote or not remote, doth not alter the
operation of law for the present. For that
should be, as if in case of the rent which yuu
put, you should say, that in rrgurd tliat tlu»
rent may be severed, it should be said to Le in
esse in the mean time, and should be gianta-
Ide ; which is clearly otherwise-. And so in
the principal cae, if that ihould be, which
' God of his goodness forbid, * ccssante cauvj
| ' ce^af oiled us,' t*ie benefit of untundi/atn n
, for the time lo come is disiolved. But that
- altercth not the operation of the law; ' rebus
4 i-:c stantibus.' And therefore 1 conclude, that
this diiiVieuce i.s but a device full of weakness
1 and ignorance; and that there is one and the
■ v. me reason of naturalizing suhjtcts by dc-
si\nt, and subjects by conquest : and that is
the union in the person of the kin^ ; and there-
fore thai the case of Scot html is a?< clear us
that of Ireland, and they that grant the cue
cannot deny the other. And so L conclude the
second part, t-. inching cjnfutatiuii.

To proceed tin relore to ll.e proofs of our
part, your lord; hips ci.nnot but know many of
them musL be already spent iu the ui;.swir
which we have made to the ohjt*'Uoiis. For
( corruptio unius, geueratio alu rms,' holds as
well in arguments, as in nature-, the destruc-
tion of an objection begets a pi oof. But ne-
vertheless! mil avoid all iu ration, list I should
seem cither to distract your memories, or to
abuse your patience ; bul will hold myself only
to these proofs which stand substantially of
themselves, and are not intermixed with mutter
of confutation. I will therefore prove unto
your lordships that the Post- natus of Scotland
is by the law of England natural, and ought so
to be adjudged, by three courses of proof. —
First, upon point of favour of law. Secondly,
upon reasons and authorities of law. And
lastly, upon former preced-.nts and examples.

1. Favour of law. What mean 1 by that ?
The law is equal, and f.ivoureth not. ll is true,
not persons; but tliin_': or mailers it doth fa-
vour. Is it not a common principle, that the
law favoureth three thiiu/s, life, liberty, and
dower! And what is th«? reason of this favour ?
This, because our law is -rounded upon the law of
nature. And these three things do How from
the law of nature, preservation of life natural ;
j liberty, which eu ry beast or bir-1 secketh ;«:nl
| alVcctoth naturally; the society of mm and wife,
whereof dower is the reward u::t>ii:d. It is
well, doth the law favour liberty so highly, a- a
! man shall enfranchise hi* bondman wh n l.o
i thinketh not of it, by grata "u*; to him lands or
goods; and is the reason of it ' quia natura
* omnes homines erant lileri ;* ami that servitude
or villenugo doth cro>s and abridge the law #
nature? And doth not the «eli-san»e reason hold
in the present case ? For, mv lord?, by the law
of nature all jnen in the world are naturalized
one towards another; they were all made ol
one lump of earth, of one brrath of(i«d; tiev
hid the same common parents: n.:y, at the
fir*t they were, as the v rip! ure jhcueth, * uiii'i-
labii,' of one language, ulitil the cur»c ; wind*

595}

STATE TRIALS, 6 James I. jrJOS.— The Case qfthe Poslnati.

[596

curse, thanks be to T3od, our present case is
exempted from. It was civil' and national
laws that brought in these words and differences
of ' civis' and * exterus,' alien and native.
And therefore because they tend to abridge the
law of nature, the law favoureth not them, hut
takes them strictly ; even as our law hath an
excellent rule, that customs of towns and bo-
roughs shall be taken and construed strictly and
precisely, because they do abridge and dero-
gate from the law or' the hind. So by the same
reason all national laws whatsoever are to.be
taken strictly and hardly in any point wherein
they abridge and derogate from the law of na-
ture. Whereupon I conclude, that your lord-
ships cannot judge the law for the other side,
except the case be luce clarius. And if it ap-
pear to you hut doubtful, as 1 think no man in
his right senses but will yield it to be at least
doubtful, then ought your lordships, under your
correction be it spoken, to pronounce tor us
because of the favour of the law. Further-
more, as the law of England must favour natu-
ralization as a branch of the law of nature, so
it appears manifestly, that it doth favour it ac-
cordingly. For is it not much to make a subject
naturalized ? By the law of England, it should
suffice, either place or parents. If he be born
in England, it is no matter though his parents be
Spaniards, or what you will. On the other side,
it he be born of English parents it skillcth not
though he be born in Spain, or in any other
place of the world. In such sort doth the law of
England open her lap to receive in people to be
naturalized ; which indeed sheweth the wisdom
arid excellent composition of our law, and that
it is the law of a warlike and magnanimous na-
tion tit for empire. For look, and you shall
find that such kind of estates have been ever
liberal in point of naturalization: whereas mer-
chant-like and envious estates have been other-
wise.

For the reasons of law joined with authori-
ties, I do first observe to your lordships, that
our assertion or affirmation is simple and plain :
that it sufficeth to naturalization, that there be
one king, and that the party be * natus ad fi-
* dem regis/ agreeable to the definition of
Littleton, which is : alien is he which is born out
of the allegian- e of our lord the king. They oi'
the other sid< speak of lespects, and qua do and
quatenns, and such subtilties and distinctions.
To maintain therefore our assertion, I will use
three kinds of proofs. The first is, that allegi-
ance cannot be applied to the law or kingdom,
but to the person of the king; because the
allegiance of tie subject is more large and spa-
cious, and hath a greater latitude and compre-
hension than the hw or the kingdom. And
therefore it cannot be a dependency of that
without the which it may of itself subsist. The
second proof which I will .use is, that the natu-
ral body of clicking hath an operation and in-
fluence into his body politic, as vA;II as his body
politic hath uoon his body natural ; and there-
fore, that although his body politic of king of
* England, and hi* body politic of kiny of Scot-

land, be several and distinct, yet nevertheless
his natural person^ which is one, bath an opera-
tion upon both, and createth a privity between
them. — And the third proof is the binding text
of five several statutes.

For the first of these, I shall make it mani-
fest, that the allegiance .is of a greater extent
and dimension than laws or kingdom, and cannot
consist by the laws merely ; because it began
before laws, it continue th after laws, and it is
in vigour where laws are suspended and have
not their force.

That it is more ancient than law, appeareth
by that which was spoken in the beginning by
way of inducement, where I did endeavour to
demonstrate, that the original age of kingdoms
was governed by natural equity, (hat kings were
more ancient than lawgivers, that the first sub-
missions were simple, and upon confidence to
the person of king*, and that the allegiance of
subjects to hereditary monarchies can no more
be said to consist by laws, than the obedience
of children to parents.

That allegiance continueth after laws, I will
only put the case, which was remembered by
two great judges in a great assembly, the one
of them now with God: which was ; that if a
king of England should be expulsed his king-
dom, and some particular subjects should fol-
low him in flight or exile in foreign parts, and
any of them there should conspire his death;
upon his recovery of his kingdom, such a sub-
ject might by the law Of England be proceeded
with for treason committed and perpetrated
at what time he had no kingdom, and in place
where the law did jiot bind.

That allegiance is in vigour and force where
the power of law hath a cessation, appeareth
notably in time of wars ; for ' silent leges inter
arma/ And yet the sovereignty and imperial
power of the king is so far from being then ex-
tinguished or suspended, as contrariwise it is
raised and made more absolute : for then he
may proceed by his supreme authority and
martial law, without observing formalities of
the laws of his kingdom. And therefore who-
soever speaketh of laws, and the king's power
by laws, and the subjects obedience or allegi-
ance to laws, speak but of one half of the
crown. For Bracton, out of Justinian, doth
truly define the crown to consist of laws and
arms, power civil and martial, with the latter
whereof the law doth not intermeddle : so as
where it is much spoken, that the subjects of
England are under one law, and the subjects of
Scotland are under another law, it is true at
Edinburgh or Sterling, or again in London or
York ; but if Englishmen and Scotsmen meet
in an army royal before Calais, I hope, then
they are under «ne- law. So likewise not only
in lime of war, but in tune of peregrination, if
a king of England travel or pass through fo-
reign territories, yet the allegiance of his sub-
jects followeth him ; .as appeareth in that nota-
ble case which U reported in Fleta, where' one
of the train of king Edward 1 , as ha passed
through France from the Holy Land, unbei-

597]

STATE TRIALS, C James I.

xeled some silver plate at Paris, and jurisdiction
was demanded of this crime by th* French
king's counsel at law, ' ratione soli/ and de-
manded likewise by the officers of king Ed-
ward, ' ratione persons :' and after much so-
lemnity, contestation, and interpleading, it was
ruled and determined fur kiug Edward, and the
party tried and judged before the knight
marshal of the king's house, and hanged alter
the English law, uud executed in St. Ger-
main** meadows. And so much for the first
proof.

For my second main proof, that is drawn
from the true and legal distinction of the king's
several capacities ; tor they that maintain the
contrary opinion do in effect destroy the whole
force ot the kiug** natural, cupacity, as if it were
drowned and swallowed up by his politic. And
therefore 1 will first prove to your lordships,
thai his two capacities are in no sort con-
founded. And secondly, that as his capacity
politic worketh *o upon his natural person, as
it makes it differ from all other the natural
persons of bis subjects ; so e convento, his na-
tural body worketit so upon his politic, as the
corporation of the crown utterly differed) from
all other corporations within the realm.

For the first, I will vouch you the very words
*hich I rind in that notable case of the DucTiy,
where the question was, whetlfer the grants of
king Edward (3th for duchy lands should be
avoided in points of nonage. The case, as
Tour lordships' know well, is reported by Mr.
Plowdcii as the general resolution of all the
jodges of England, and the king's learned coun-
sel, Rouswell the solicitor only excepted.
There I find the said words, Comment, fol.
215. ' There is in the king not a body natural
4 alone, nor a body politic alojje, but a body
1 natural and politic together : corpus corpo-
4 ratum in corpnrc nnturali, et corpus naturale
4 in corpore corporate' The like I find in the
great case of the lord Berkley set down by the
same reporter, Comment, fol. 531. ' Though
1 there be in the king two bodies, and that
4 those two bodies are conjoined, yet are they
4 bv no means confounded the one by the other/

Now then to see the mutual and reciprocal
intercourse, as 1 may term it, or influence or
communication of qualities, that these bodies
have the one upon the other. The body politic
of the crown lnduccth the natural person of
the king with these perfections : that the king
in law shall never be said to be within age ;
that his blood shall never be corrupted ; and
that if he were attainted before, the very as-
•amption of the crown purgeth it; that the
king shall not take but by matter of record,
although he take in his. natural capacity as
upon a gift ia toil ; that his body in law shall
be said to be as it were immortal ; for there
is no death of the king in law, but a demise, as
it is termed: with many other the like privi-
leges and differences from other natural per-
sons, too long to rehearse, the rather because
the question la bo u ret h not in that part. But
on the contrary part let us see what operations

1608.— Vie Co*? of tie Postnati. [598

the king's natural person hath upon his crown
and body politic. Of which the chiefest and
greatest is, that it causeth the crown to go by
descent, which is a thing strunge, and contrary
to the course of all corporations, which ever-
more take in succession, and not by descent ;
for no man can shew mc in all the corporations
of England, of what nature soever, whether
. they consist of one person, or of many, or
i whether ihey be temporal or ecclesiastical, any
; one take* to him, and his heirs, but all to him
j and his successors. And therefore here you
! may see what a weak course that is, to put
! cases of bishops and parsons, and the like, and
! to apply them to the crown. For the king
' takes to him and his heirs in the manner of a
• natural body, aud the word, successors, is but
superfluous ; and where that is used, that is
ever duly placid after the word, heirs, ' the
1 king, his heirs, and successors.'

A sain, no man can denv but * uxor et filius
4 sunt nomina naturae.* A corporation can
have no wife, nor a corporation call have no
son. IIuw is it then, that it is treason ti» com-
pass the death of the queen or of the prince?
Therein no part of the body politic of the crown
in eititer of I hem, but it is in: i rely in the king.
So likewise we find in the case of the lord Rerk-
ley, the question wa-i, whether the statute of
fi5 II. 8. for tint part which concerned queen
Catherine Par's jointure, were a public act or
no, of which the judges ought to take notice,
not being pleaded ; aud judged a public *ict.
So the like question came before your lordship,
my lord chancellor, in serjeant Heale's case;
whether the statute of 11 Edward 3, concerning
the intailing of the dukedom of Cornwall to the
prince, were a public act or no; and ruled
likewise a public act. Why? No man can
ntfirm but these be operations of law, proceed-
ing from the dignity of the natural person of
the kiug *, for you shall never find, that another
corporation whatsoever of a bishop, or master
of a college, or mavoi of London, worketh any
thin? in law upon the wile or son of the bishop
or the mayor. And' to conclude this point,
and withal to roiue near to the case in question,
I will shew you where the natural person of the
king hath not only an operation in the case of
Lis wife and children, but likewise in the case
of his subject.-, which is the very question in
hand. As for example, 1 put this case. Can
a Scotsman, who is a subject to the natural
person of the kiug, and not to the crown of
England ; can a Scotsman, 1 say, be un enemy
by the law to thu subjects of England ? Or
; uiu^t he not of necessity, if he should invade
; England, !>c a rebel and no enemy, not only as
to the kiug, but as to the subject ? Or can any
, letters of mart or reprisal lie granted against
a Scot mum that shall spoil an Englishman's
goods at sea ? And certainly lids case doth
pres< exceeding near the principal case ; for it
nroveth plainly, that the natural person of the
king hath such a communication of qualities
with his body politic, as it makes the subjects
of either kingdom stand in another degree of

599]

STATE TRIALS, (i James 1. 1G08.— The Case qf the Fostnati.

(600

pfivity one towards the other, tlmu they did be-
fore. And so much for the second proof.

For the live acis of parliament which I spoke
of, which are concluding to this question. — The
first of them is that concerning the banishment
of Hui.h Spencer in the time of king E. 2 ; in
which act iheie is contained the charge and
accusation whereupon his exile proceeded. One

t article of which charge is set down in these
words -. * Homage and oath of the subject is
' more by reason of i lie crown than by reason
' of the person of the king. So that if the king
1 doth not guide himself by reason in right of
' the crown, his lieges are bound by their oath
' to the crown to remove live king.' By which
act doth plainly appear the perilous conse-
quence of this distinction concerning the per-
son of tr.e king and the crown. And yet 1 do
acknowledge justly and ingenuously a great
difference between that .assertion and this,
which is now maintained : for it is one thing to
make things distinct, another thing to make
them separable, ' aliud est distinctio, aliud se-
' parutio ;' and therefore I assure myself, that
those "that now ^e and urge that distinction,
do as firmly hold, that the subjection to the
king's person and to the crown are inseparable,
though distinct, as T do. And it is true that
the poison of the oniniou and assertion of
Spencer is like the poison of a scorpion, more
in the tail than in the body : for it is the infer-
ence that they make, which is, that the king
may be deposed or removed, that is the treason
and disloyalty of that opinion. But by your
leave, the body is never a whit the more whol-
s >m meat for having such a tail belonging to it.
Therefore we see that is ' locus lubricus,' an
opinion from which a man may easily slide
into an absurdity. But upon this- act of par-
liament 1 will onlv note one circumstance more,
and so leave it, which may add authority unto
it in the opinion of the wisest; and that is,
that these Jrpencers were not ancient nobles or
great patriots that were charged and prosecuted
by upstarts and favourites : tor then it might
be said, tliat it'was hut the action of some flat-
terers, who use to extol the power of monarchs
to he infinite But it was contrary ; a prose-
cution of (hose persons being favourites by the
nobility; so as the nobility themselves, which
seldom do subscribe to the opinion of an infi-
nite power of monarchs, yet even they could
not t udurc, but their blood did rise to hear that
opinion, that subjection is owing to the crown
rather than to rh • person of the king.

The sccmid act of parliament, which deter-
mined this case, is the Act of Recognition in the
fi.st year of his majesty, wherein you shall find,
that in two several places, the one in the pre-
amble, the other in the body of the act, the par-
liament doth recognise, that these two realms
of Jutland and Scotland are under one impe-
rial crown. The parliament doth not sny
under one monarchy or. king which might
refer to the person, but under one imperial
crowo, which cannot be applied but to tbc

- sovereign power of regiment comprehending

both kingdoms. And the third act of parlia-
ment is the act made in flic fourth year of his
majesty's reign, for the abolition of hostile laws;
wherein your lordships shall find likewise in two
places, that the parliament doth acknowledge,
that there is an union of these two kingdoms
already begun in his majesty's person : so as by
the declaration of that act, thejrhave not only
one king, but there is an union in inception in
the kingdoms themselves. -

These two are judgments in parliament by
waV of declaration of law, against which no
man can speak. And certainly these are righ-
teous and true judgments to be relied upon ;
not only for the authority of tbein, but for the
verity of them ; for to any that shall well and
deeply weigh the effects of law upon this con-
junction, it cannot but appear, that although
partes integrates of the kingdom, as tlie philoso-
phers speak, such as the laws, the officers, the
parliament, are not yet commixed ; yet never-
theless there is but one and the self-same foun-
tain of so\ ereign power depending upon the an-
cient submission, whereof 1 spake in the begin-
ninu ; and in that sense the crowns and the
kingdoms are truly said to be united.

And the force of this truth is such, that a
grave "nd learned gentleman, that defended
the contraiy opinion, did confess thus far: that
in ancient times, when monarchies, as he said,
were but heaps of people without any exact
form of policy ; that then naturalization and
communication of privileges did follow the per-
son of the monarch ; but otherwise since states
were reduced to a more exact form : so as thus
far we did consent; buL still I differ from him
in this, that these more exact forms, wrought by
time and custom and laws, are nevertheless still
upon the lirst foundation, and do serve only to
perfect and corroborate the force and bond of
the first submission, and in no sort to disannul
or destroy it.

And therefore with these two acts do I like-
wise couple the act of 14 Ed. S, which hath been
alledged of the other side. For by collating of
that act with this former two, the truth of tha£
we affirm will the more evidently appear, ac-
cording unto the rule of reason : * opposita
' juxta se posita magis elucescunt.' That act
of 14 is an act of separation. These two acts
formerly recited are acts tending to union. This
act is an act that maketh a new law ; it is by
the words of grant and establish. These two
acts declare the common law as it is, being by
words of recognition and confession. — And
therefore upon the difference of these laws you
may substantially ground this position : that
the common law of England, upon the adjunc-
tion of any kingdom unto the king of England,
doth make some degree of union in the crowns
and kingdoms themselves; except by a special
act of parliament they be dissevered.

Lastly, the fifth act of parliament which I
promised, is the act made in the 42 of E. 3, cap.
10. which ifttm express decision of the point m
question. The words are, ' Item, (upon the pe-
1 tition put into parliament by the commons)

601]

STATE TRIALS, 6 James I. 1(508 The Cax tfthc Poslnati.

[603.

* that infants born beyond the seas in the se rsf
' niories of Calms, and elsewhere within the
1 lands and $< igniorics that pertain to our sove-
4 reign lord the kim; beyond the seas, he as able

* and inheritable of their heritage in England, n»

* other infants born within the rcidm of Eug-
' land, it is accorded that the common law and
1 the statute formerly made he holden.'

Upon tlu» act I infer thus mm h ; first, that
Mich as the petition mentinneth were naturaliz-
ed, the practice shews ; then if so, it must be
either by common law or statute, for so the
words report: not by statute, for there is no
other statute but 23 E. 3, and that extends to
the case of birth out of the king's obedience,
where the parents are English ; ergo it was by
the common law, for that only remains. And
•o by the declaration of this statute at the com-
mon law, * all inrants, born within the lands and
4 seigniories (for I give you the very words
' again) that pertain to our sovereign lord the
' king, (it is not said, as are the dominions of
4 England) are as able and inheritable of their
'heritage in England, as other infants born
1 within the realm of England.' What can be
more plain ? and so I leave statutes and go to
precedents ; for though the one do bind more,
yet the other sometimes doth satisfy more.

For precedents, in the producing and using
of that kind of proof, of all others it behoveth
tbetn to be faithfully vouched ; fur the suppress-
ing or keeping back of a circumstance, may
change the case : and therefore I am determiner!
to urge only such precedents, as are without all
colour or scruple of exception or objection,
even of those objections which I have, to my
thinking, fully answered and confuted. This is
now, by the providence of God, the fourth time
that the line and kings of England have had
dominions mid seigniories united unto them as
patrimonies, and by descent of blood ; four
unions, I say, there have been, inclusive with
this last. The first was of Normandy, in the
person of William, commonly called the Con-
queror. The second was of Gascoignc, and
Guienne, and Anjou, in the person of II. 2 ; in
fits person, I say, though by several titles. The
third was of the crown of France, in the person
of E. 3. And the fourth of the kingdom of
Scotland, in his majesty. Of these I will set
aside such as by any cavitation can be excepted
«nto. First, I will set aside Normandy ; be-
cause it will be said, that the difference of coun-
tries accruing by conquest, from countries an-
nexed bv descenr, in matter of communication
of privileges, holdcth both ways, as well of the
part » f the conquering kingdom, as the con-
quered ; and therefore rhat although Norman-
dy was #iot a conquest of England, yet England
*«s a conquest of Normandy, and so a coin-
Biuiiicatiou of privileges between them. Again,
Rfct abide France; for that it will be said that
although the king had a title in blood and Ijy
descent, yet that title was executed and reco-
vered by anus, so as it is a mixt title of con-
quest and descent, and therefore the precedent
not so dear.

There remains then Gascoigne and Anjou,
and that precedent likewise 1 will reduce and
abridge to a time, to avoid all question. For
it will be said of thern aUo, that after they
were lost and recovered in ore gladii, that the
ancient title of blood was extinct; and that
the king was in upon his new title by conquest.
And Mr. Walter hath found a book-case in
13 H. 6. abridged by Mr. Fuz- Herbert, in title
of Protection, plucito 56, where a protection
was cast, * quia profecturusrin Gasconiam' with
the earl of Huntingdon, and challenged be-
cause it was not a voyage royal; and the jus*
tices thereupon required the sight of the com-
mission, which was brought before them, and
purported power to pardon felonies and trea-
son, power to coin money, and power to con-
quer them ciiat resist : whereby Mr. Walter,
finding the word conquest, collected that the
king's title at that time was refuted to be by
cqnqucst. Wherein I may not omit to give
obiter that answer whicti law and truth provide,
namely, that m hen any king obiaineth by war
a country w hereunto he oath right by birth,
that he is ever in upon his ancient right, not
upon his purchase by conquest ; and the reason
is, that there is as well a judgment and re-
covery by wtir and arms, a» by law and course
of justk e. For war is a tribunal -seat, wherein
God giveth the judgment, and the trial is by
battle or duel, as in the case of trial of private
right : and then it follow?, that whosoever
cometh in by eviction, comes in his Remitter :
-so a^ there will he no difference in count hts
whereof the right cometh by descent, whether
the possession be obtained peaceably or by
war. But yet never! hw less, because I will
utterly take away all manner of evasion and
subterfuge, I will yet set apart that part of
time, in and during the which the subjects of
Gascoigne and Guiennc might be thought to
be subdued by a re-conquest. And therefore
I will not meddle with the prior of Shelley's
case, though it be an excellent case ; because
it was in the time of 27 E. 3 ; neither will I
meddle with any cases, record-, or precedents,
in the time of king H. .5, or kimj; 11. 6, for the
same reason ; hot will hold myself to a portion
of time fiom the first uniting of these provinces
in the time of king H. 'J, until the time of king
John, at what time th.v*c prutii.ccs were lost;
and from that lime n»;aiii unto the seventeenth
\ear of the rci^ti of I'.. 2, at what time the
statute of F'ra*r i^.iina Kcgis was made, tvhich
n bored the l;»w in iTn. point in hand. — That
both in llirse tmuis the uihjects of Gascoigne,
sind Gniriini*, mid Anion, wire naturalized for
inheritance m Eit^'uino by »!ie laws of England,
I shall manifestly pi >ve ; -md the pnior pro-
ceeds, as to th«* f i Pier n:..*', which is our case,
in a very hi»h degru* a wiuorc ad majuty and an
we say, amulto fvttiori. For if this privilege of
naturalization remained unto thein when the
countries were l»>t, a.:d became subjects in
possession to another king, much more did they
enjoy it as lout; as they continued tinder the
king;s subjection.

1503]

STATE TRIALS, G James I. 1G0S.— 7fo? Case qf the Pottnati.

[604

Therefore to open the state of this point.
After these provinces were, through the per-
turbations of the state in the unfortunate time
of king John, lost and severed, the principal
persons which did. adhere unto the French,
were attainted of treason, and their escheats
here in England taken and seized. Bui the
people, that could not resist the tempest when
their heads and leaders were revolted, continued
inheritable to their possessions in England;
and reciprocally the people of England inherit-
ed and succeeded to their possessions in Gas-
coigne, and were both accounted * ad fidem
' utriusqoe regis,' until the statute of Praero-
gativa Regis ; wherein the wisdom and justice
of the law of England is highly to be com-
mended. "For of this law there are two grounds
of reason, the one of equity, the other of policy.
That of equity was, because the common people
were in no fault, but, as the scripture saith in
a like case, 'quid fecerunt oves istae?' It was
the cowardise and disloyalty of their governors
that deserved punishment, but ' what had these
v' sheep done r And therefore to have punislted
them, and deprived them of their lantfe and
fortunes, had been unjust. That of policy was,
because if the law had forthwith, upon the loss
of the countries by an accident of time, pro-
nounced the people for aliens, it had been a
kind of accession of their right, and a disclaimer
in them, and so a greater difficulty to recover
them. And therefore we see the statute, which
altered the law in this point, was made in the
time of a weak king, that, as it seemed, de-
spaired ever to recover his right, and therefore
thought better to have a little present profit by
escheats, than the continuance of his claim,
and the countenance of his right, by the ad-
mitting of them to enjoy their inheritance as
thev did before.

The state therefore of this point being thus
opened, it resteth to prove our assertion, that
they were naturalized ; for the clearing where-
of 1 shall need but to read the authorities, they
be so direct and pregnant. The first is the
very text of the statute of Praerogativa Regis.
' Rex habebit escaetas de terrisNormannorum,
' cujuscunque feodi fuerint, salvo servitio, quod
' pertinet ad capitales domioos feodi illius : et
' hoc similiter intelligendum est, si aliqua liaere-
' ditus descendat alicui nato in partihus trans-
' marinis,£t cujusantecessores fuerunt ad fidem
4 regis Francis, ut tempore regis Johannis, et
' non ad fidem regis Anglis, sicut contigit de
' baronia Monumets, &c.' — By which statute
it appears plainly, that before the time of king
John there was no colour of any escheat, be-
cause they were the king's subjects in possession,
as Scotland now is ; but only it determines the
law from that time forward. — This statute, if it
had in it any obscurity, it is taken away by two
lights ; the one placed before it, and the other
placed after it ; both authors of great credit,
the one for ancient, the other for late times.—
The former is Bracton, in his cap. de Excep-
tionibus, lib. 5. fol."4£7. and his words are
these : * Est ctiam et al^a exceptio, que teneuti

' com petit ex persona *petentis, propter defectum
' nationis, quae dilatoria .est, et non peiiinit
' actionem ; ut si quis alienigena, qui fucrit ad
' fidem regis Francia, et actionem instituat

* versus aliquein, qui merit ad fidem regis

* Angliie, tab non respondeatur, saltern donee
' terrae meruit coniinunts.' By these words it
appeareth, tliat alter the loss of the provinces
beyond the seas, the naturalization of the sub-
jects of tho*e provinces was in no sort extin-
guished, but only was in suspence during the
time of war, and no longer ; for he saith plainly,
that the exception^ which we call plea, to the
person of an alien, was not peremptory, but
only dilatory; that is to say, during the time of
war, and until there were peace concluded,
which he terms by the>e words, ' donee terra)
4 fuerint communes :' which, though the phrase
seem somewhat obscure, is expounded by
Bracton himself in his fourth book, fbl. 297, to
be of peace made and concluded, whereby the
inhabitants of England and those provinces
might enjoy the profits and fruits of their lands
in either place ( communiter,' that is, respec-
tively, or as well the one as the other. So as
it is clear they were no. aliens in right, but only
interrupted and debarred of suits in the king s
courts in time of war.

The authority after the statute is that of Mr.
Stamford, the best expositor of a statute that
hath been in our law ; a man of reverend judg-
ment and excellent order in his writings. His
words are in his exposition upon the branch of
the statute which we read before. ' By this
' branch it should appear, that at this time men
'.of Normandy, Gascoigne, Guienne, Anjou,
' and Britain, were inheritable within this
1 realm, as well as Englishmen ; because that .
( they were sometimes subjects to the kim>s of
1 England, and under their dominion, until
' king John's time, as is aforesaid : and yet
1 after bis time, those men, saving such whose
1 lands were taken away for treason, were still

* inheritable within this realm till the making
' of this statute ; and in the time of peace be-
' tween the two kings of England and France,
' they were answerable within this realm, if
' they had brought any action for their lands
1 and tenements.'

So as by these three authorities, every one
so plainly pursuing the other, we conclude that
the subjects ef Gascoigne, Guienne, Anjou,
and the rest, from their first union by descent,
until the making of the statute. of Praerogativa
Regis, were inheritable in England, and to be
answered in the king's courts in all actions,
except it were in time of war. Nay more,
which is de abundunti, that when the provinces
were lost, and disannexed, and that the king
was but king de jure over them, and not de
facto, yet nevertheless the privilege of naturali-
zation continued.

There resteth yet one objection, rather plau-
sible to a popular understanding than any ways
forcible in law or learning, which is a difference
taken between the kingdom of Scotland and
these duchies ; for that the one is a kingdom,

005]

STATE TRIALS, 0 James I. 1008.— 77* Case qfttic Postnati.

[606

and the other was not so; and therefore that
those provinces, being of an inferior nature,
did acknowledge our laws, and seals, and par-
liament, which the kingdom of Scotland doth
BOC— This difference was well given over by
Mr. Walter; for it is plain that a kingdom
and absolute dukedom, or any other sovereign
estate, do differ honor*, and not not f stale : lor
divers duchies aud countries, that are, now,
were sometimes kingdoms ; and divers king-
doms, that are now, were sometimes duchies,
or of other inferior stile: wherein we need not
travel abroad, since we have in our own state so
notorious an instance of the country of Ireland,
whereof king H. 8, of late time was the first
that writ himself king, the former stile being
lord of Ireland, and no more ; and yet kings
had the same authority before, that they have
had since, and the same nation the same marks
of a sovereign state, as their parliaments, their
arms, their coins, as they now have : so as this
is too superficial an allegation to labour upon.
—And it any do conceive that Gascoigne and
Guienne were governed by the lausof Eng-
land : first, that cannot he in reason ; for it is
a true ground, that wheresoever any prince's
title onto any country is by law, he can never
change the laws, for that tl.ey create his title :
tad fiierefore no doubt those duchies retained
their own laws ; which if they did, tlien they
could not be subject to the laws of England.
And next, again, the fact or practice was
otherwise, as appeareth by all consent of story
tod record : for those duchies continued go-
verned by the civil law, their trials by witnesses,
tod not by jury, their lands testamentary, and
the like.

Now for the colours that tome have endea-
voured to give, that they should have been sub-
ordinate to the government of England ; they
were portly weak, and partly such as make
Strongly against them : for as to that, that writs
of Habeas Corpus under the great seal of Eng-
land have gone to Gascoigne, it is no manner
of proof ; for that the king's writs, which are
mandatory, and not writs of ordinary justice,
stay go* to bis subjects into any foreign parts
whatsoever, and under what seal it pie a set h
Kim to use. And as to that, that some acts of

ErluiDcnt have been cited, wherein the par-
meats of England have taken upon them to
Order matters of Gascoigne ; if those statutes
he well looked into, nothing doth more plainly
convince the coutrary; for they intermeddle

with nothing but that that concern eth either
the English subjects personally, or the territo-
ries of England locally, and never the subjects
of Gascoigne. For look upon the statute of 27
E. S. cap. 5. there it is said, that there shall be
no forestalling of wines. But by whom? Only
by English merchants ; not a word of the sub-
jects of Gascoigne ; and yet no doubt they
might be offenders in the same kind. So in
the sixth chapter it is said, that all merchants
Gascoignes may safely bring wines into what
part it shall please them. Here now arc the
persons of Gascoigne s. But then the place
whither ? Into the realm of England. And in
the seventh chapter, that erects the ports of
Bourdeaux and Bayonne for the staple towns
of wine; the statute ordains, ' that if any,9
but who ? ' English merchant, or his servants,
4 shall buy or bargain other where, his body
* shall be arrested by the steward of Gascoigne,
' or the constable of- Bourdeaux.' True, for
the officers of England could not catch him in
Gascoigne. But what shall become of hito, ;
shall he be proceeded with within Gascoigne I
No, but he shall be sent over into England into
the Tower of London. — And this doth notably
disclose the reason of that custom which soma
have sought to wrest the other way : that cus-
tom, 1 say, whereof a form doth yet remain,
that in every parliament the king doth appoint
certain committees in the upper-house to re-
ceive the petitions of Normandy, Guienne,
and the rest; which, as by the. former statute
doth appear, could not he for the ordering of
the governments there, but for the liberties
and good usage of the subjects of those parts
when they came hither ; or vice versa, for the
restraining of the abuses and misdemeanors of
our subjects when they went thither.

Wherefore I am now at an end. For us to
speak of the mischiefs. I hold it not fit for this
place, lest we should >>eeni to bend the laws to
polic.v, and not to take them in their true and
natural Sense. It is enough that every man
knows, that it is true of these two kingdom;',
which u good father said of the churches of
Christ : * si inseparables insuperabiles.* Some
things I may have forgot, and koine things per-
haps I may forget willingly ; for 1 will not
press any opinion or declaration of late time
which may prejudice the liberty of this de-
bate ; but ' ex dictis, et ex non diet is/ upon
the whole matter I pray judgment for the
plaintiff.

607]

STATE TRIALS, G James I. 1608.— The Case of the Postnati.

[608

Lord Coke's Report of Calvin's Case.* From the 7th part of his Reports.

[The following Report is printed from Serjeant Wilson's edition of lord Coke's Re*
ports. All the References included in brackets are by Mr. Chilton and
the editors of the editions since the one by him. The Case is dated by lord
Coke, Trin. 6 Jam. 1.]

The W it i t of Ass i « e.
James, by the grace of God, of England,
Scotland, France, and Ireland, king, defender
of the faith, &.c. to the sheriff of Middlesex,
greeting: Robert Calvin, gent, hath complained
to us, that Hichard Smith, and Nicholas Smith,
unjustly, and without judgment, have disseised
him of his freehold in Haggard, otherwise Hag-
gerton, otherwise Aggerston, in the parish of
St. Leonard, in Shored itch, within 30 years now
last past ; and therefore we command you, that
if the said Robert shall secure you to prosecute
* his claim, then chat you cause the said tene-
^ raent to be reseised with the chattels, which
within it were taken, and the said tenement
with the chattels, to he in peace until Thursday
next after 15 days of St. Martin next coming;
and hi the mean time, cause 12 free and lawful
men of that neighbourhood to \iew the said
tenement, and the names of them to be inbre-
viated; and summon them by good summouers,
(hat they he then before us wherever we shall
then be in England, ready thereof to make re-
cognition; and put by sureties, and safe pledges,
the aforesaid Richard and ^Nicholas or their
bailiffs (if they cannot be found,) that they he
then there, to hear the recognition ; and have
there the summoners, the names of the pledges,
and this writ. Witness ourself at Wettminster,
the 3d day of Nov. in the 5th year of our rcii;n
of England, France, and Ireland, and of Scot-
land the one and fortieth. — For 40s. paid in the
Han per, Kindcsley.

^ Middlesex, ss. ; The assise cometh to recog-
nize, if Rich. Smith, and Xich. Smith unjustly,
and without judgment, did disseise Rob. Cal-
vin, gent, of his lreehold in Haggard, otherwise
Haggerston, otherwise Aversion, in the parish
of St. Leonard in Shortiiitch, within 30 years
now last past : and whereupon, the said Ro-
bert, who is within the age of '.21 years, by John

Scotland the 39th, at Edinburgh, within hit
kingdom of Scotland, aforesaid, and within the
allegiance of the said lord the king of the said
kingdom of Scotland, and out of the allegiance
of the said lord the king of his kingdom of Eng-
land ; and at the time of the birth of the said
Robert Calvin, and long before, and continually
afterwards, the aforesaid kingdom of Scotland,
by the proper rights, laws, and statutes of tlit
same kingdom, and not by the rights, laws, or
statutes of this kingdom of England, was and
yet is ruled and governed. And this lie is ready
to verify, and thereupon prayeth judgment, if
the said Robert, to his said writ aforesaid,
ought to be answered, &c. And the aforesaid
Robert Calrin saith, that the aforesaid plea, by
the aforesaid Hichard and Nicholas above
pleaded, is insufficient iti law, to bar him the
suioj Robert from having an answer to his writ
aforesaid ; and that the said Robert, to the said
plea in manner and form aforesaid pleaded,
needeth not, nor by the law of the land it
bound to answer ; and this he is ready to verify,
and hereof prayeth judgment; and that the
seid Richard and Nicholas, to the aforesaid
writ of the said Robert, may answer. And the
said Richard and Nicholas, forasmuch as they
have above alledged sufficient matter in law to
bar him the said Robert' from having an answer,
to his said writ, which they are ready to veri-
fy , which matter the aforesaid Robert doth not
gainsay, nor to the same doth in any ways an-
swer, but the said averment altogether reruseth
to admit as before; pray judgment, if tlie afore-
said Robert ought to be answered to his said
writ, \*c. And because the court of the lord
the kinjr, here, are not yet advised of giv-
iutz their judgment of and upon the premises,
day thereof is given to the parties aforesaid;
before the lord the king at Westminster, until
Monday next after tt days of St. Hilary, to hear

Parkinson and William Parkinson, bis guardi- their judgment thereof, because the court of
aos, by the court of the said king here to this the lord the king liere thereof are not yet, &c.

• • • • % a ■■ * ' I 1 I'.l 4 I - I ■ •/»•• • ■ «

being jointly and severally specially admitted,
Coinpluineth ; that they di versed him of one
messuage with the appurtenance*, &c. And the
laid Richard and Nicholas, by William Va\-
wards, their attorney, come and say, that the
said Robert ought not to be answered to his
writ aforesaid, because they say, that the said
Robert is an alien, born on the 5th day of Nov.
in the 3d year of the icigu of the king that now
is, of England, France, and Ireland, and of

* Vid. Dy. fo. aoi. !?. Jo. 10. Vaugh. 380.
279. 301. 1. Lev. 59. Plowden's cu-e of the
Dutchy, £llesmere's Postwar i, Bacon on, Go-
yernm. 2. pt. 76. Atwood's Superiority, 304.
Salk. 411, 419. Skinn. 134, 179, 198, 336, 442.

And the assise aforefaid leinains to be taken
before the said lord the king, until the same
Monday there, cVc. And the sheiitTto distrain
the recognitors of the assise aforesaid : and in
the interim to cause a view, &c. At which day,
before the lord the kin^ at Westminster, come
as well tin; aforesaid R. Calvin, by bis guardi-
ans aforesaid, as the afore?.aid Rich. Smith and
jNic.Sn.it.li, by their attorney aforesaid; and
I because the court of the lord the king here of
uiying th.'ir judgment of and upon the pre-
mises is nut yet ad\ised, day thereof is given
to the parties aforesaid before the lord the king
at Westminster, until Monday next after the
morrow of the Ascension of our Lord, to hear
their judgment; because the court of the lord

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I iT!i!tll I HL- . 1 1 iJl |l],.l,.l.-.|

imc/ii iii t lie l.'liaiiterv in « .suit

ilenee oditi-inuii land- nt nilirrit-

acr, «aO hj ibe lend rhaw :dloi atljnurneil olw

ii.iIht, to the end iliat

(hi ni'irnilr btttli lliE i.nd antes.

. ml '.'i, \I„„i i3i. . i

■- 1JJ.
IK.J40.
»«_ N.

And lint, f..r t Tint I intend In make n« =i

ihiuv ii report m I can, I will at tin

ilunn -nil. iii-.mn, ilia i.ml ill l, ■ ' :■
imi.lt mill drU"ll ,.1,1 ,,l ■■
lilt |ll:iilillli, lij tbii-t- thai

k-iiilnui=. It «n« (jli-i'itL-i), iiii il iilti

there were I'm ir houiu amuuor jwajna, niucli
wen i--.il.-.-, I, vi. -.■...,.- .,

i in-, ii i.n tba laid | i and

tbe pan ol tb di :•■■■ ■ ■ • ■■ . ia ■■:

■...-,,■:■ a ted i i

■ milium do-

• niiiii (!.■:> is rtiiiu s,ii AiijJ.'j ■;, Hi ■: ■
«]=() nppeaiiii: i

.in, I ' i-i Liiiurii S.j. n. 'j :S. Lege*

(,.i.i, b in twice alb dged, -■■■'

' lllill i,-;Ji- N:iil.' I'.iu -. -..

1. AliL'iii^cniii ("Imli ia die conchujian of alt,
'■:.. ii:.,i ILubert Calvin ia ' ■llen^cM.')

1. LtgeSUEhl. ll\ llu- hut ir i,;.|.L-;i|-|..tll, llml
. iL.-H.-r-, out) nt'

England, Mil a In i- .:'.'-■.,..;...•:, ami limn

urn ',(1 wen
■ ■
i. \i hnnew t i> i "ii ii • mi,., lie antiatii,1 within

4 lung Jnnm of i n
Scoiluiid, is ' iiiu-iii.-ii,;!,' mi ii; ,,

the kingdom al Engl I ; but ttol I . i i

aw luirn nt l-.ilinliiiivl,, iiiliin tbi

tbe kmn of Ins InDfU mi

fore Robert l.'.'ilvm ii- ■ i,i. ■.., ■ ..' mi ih n

bilffi, nan, Nil- bin|tioa) ',1 1 ...... I. .ml. S. fflkV

Meret u I* m ' intra n. auiian,' ■
lajeenca of kinf J imaa al i ii Idngeji

bind, i? ■'■ ... , ■! r . i! H , of Engbuto;

i.-.; tbe | I ,■,'.. i ". - i. .'., mil of the hgeaiic.'
of ilit k. na nf lii= k.iii>tii>ni "f Jini:li,iiJ ; ih. ,,. -

Ibn tbe |.l.iinuiii, mi alien, he. B

atpun ■ - are drawn freni die roij wonlaof

tbe [ill--', *». '.ju.il |iiii-J II. I., in, eat iilie-

I .'. Nil! . Ulilil, If-Ml

' mine Aniil" en. tertio wnud EdenfauK^ infra
1 imiiiiiii 9C0C*, ac miii' Uieatirimji dieo dooaiM

' ifji- dicii riLin -,,. -, ■■!', ,,i i-.: , it 1 1 gen i ilia iii

• til. Ii di, mini iiin it-^in Mil Anul'.

I. Regno. 1 i"iiithi'-eviii,l i.uiL-di,m», ii/.

'rtgnoM -\iiiji'' i 'reejnatn j-oh',' ihm

■AMOMOta Mm- di j .mi. i . ■ i j i :.i i, iii, i' a>du

' jiiiii fun., ilu a rngna] i nrmitniMis pci-

' sona, A-iiuiini tat .ic ii < -

in iht km-'-, neiaon d»tn concur t<

itml settral kmi;.|..ii.j , i In ii f,i.-

petNM, mid coine-
tjueutlv tlie |)lniviiiii ii mi iiln'ti, m nil tbe An-
tiii.iii an-, Ii , ii. ii ii. i) V.I-.I- i, urn untitf teal

another kimt. fl. ^^ .... ■
ilue to tbe kingV wreral pelhic -

tlit icreriil ksi

but Hensnca ofeaeb nation it due iu the kind's

..■,■,. I kiii-.-
ildiris ; rri'n, tin.' liLTiini-i.' ill lili.ll lilition UK-

•era] and iii..-,.
■

611]

STATE TRIALS, 6 James I. 160$.— Vie Que tf the PoHnatL

[612

under several i geauces arc aliens one to ano-
ther. 3. Where the king hath several king-
doms by several titles and descents, there also
are the hgeauces several ; hut the king hath
these tv\o kingdoms hv -e\fiul titles and de-
srents; therefore the lgeanre* are several.
These three arguments arc collected also from
the words of the plea he tore remembered.

3. Leges. From die several and distinct
laws oi either kingdom, ihey did reason thus.
1. Every subject, that is bom out of the extent
and reach of the laws of* England, cannot by
judgment of those laws be a natural subject to
the king, in respect of his kingdom of England,
but the plaintiff was born at Edinburgh, out of
the extent and reach of the laws of England ;
therefore the phiiutiif, by the judgment of the
laws, of England, cannot ben natural subject
to the king, as of his kingdom of England, 'i.
That subject, that is not at the time and in the
place of his birth inheritable to the laws of
England ; caunot be inheritable or partaker of
the benefits and privileges given by the laws of
England ? but the plaintilf at the time, and in
the place of his birth, was not inheritable to
the laws of England, but only to the laws of
Scotland; therefore he is not inheritable or to
he partaker of the benefits or privileges of the
laws of England. 3. Whatsoever appeareth to
be out of the jurisdiction of the laws of Eng-
land, cannot be tried by the same laws ; but
the plaintiffs birth at Edinburgh is out of the
jurisdiction of the laws of England1; therefore
the same cannot be tried by the laws of Eng-
land. Which three* arguincn'.s were drawn
from these words of the plea, viz. ' qnodque

* tempore nativitatis prsed' Itoberti Calvin, ac
' diu antea, et continue postca, prakd' regnum
4 .Scot1 per jura, leges et statnta ejusdem ngui

* propria, et non per jura, leges, seu stututa

* hujus rcgni Augl' rcgulat' et gubernai' fuit, et
( adiiuc est.1

4. Alicnigeua. From this word ' alienigena'
they argued thus, every subject that is ' alien*
gentis (i. e.) alien* ligeant*, est alienigena ;* but
surli a one is the plaintilf; therefore, &c.

And to these lime arguments all that was
spoken learnedly and i.t large by those that
argued agiiust the plaintiff muy be reduced.

But it was resolved by the Lwid Chancellor
and twelve Judges, \iz. the two Chief Justices,
the Chief Baron, Justice Feuuer, War burton,
Yelvertou, Daniel, Williams, Baron Snigge,
Baron Ah hum, Justice Crooke, and Baron
Heion, that the plaintiff was no alien, and con-
sequently that he ought to be answered in this
assize by the defendants.

This case was as elaborately, substantially,
and judicially argued by the lord chancellor,
and by my brethren the judges, as 1 ever read
or heard of any ; and so in mine opinion the
weight and consequence of the cause, both * in
' pnescnti et perpetuis futuri* tewporibus* justly
deserved ; for though it was one of the shortest
and least that ever we argued in this court,
jet was it the longest aud weightiest that ever
was argued in any court, the shortest in sylla-

bles, and the longest in substance; the least
for the value (and yet not tending to tlie right '
of that least) but the weightiest tor ttie conse-
quent, both for the present, and tor all poste-
rity. And therefore it was said, that those
that had written defutsilibus did observe, that
gold, hidden in the bowels of the earth, was in
respect of the mn^s of the whole earth, paroum
in magno ; but of this short plea it might he
truly said (which is more strange) that here
was magnum inparvtt.

Ami in the Arguments of those that argued
for the plaintiff I specially noted, that albeit
they spake according to their own heart, yet
they spake not out of their own head and in-
vention : wheteiu they followed the counsel
given in God's Book, [job. liii. 8.] * iuterroga
4 pristinam geueratioueoV (for out of the old
iields must come the new corn) * et d it ige titer
' invrstiga pat rum memoriam,' and diligently
search out the judgments of our forefathers,
and that for divers reasons. First, on our own
part, ( hesterni enim sumus et ignoramus, et
' vita nostra sicut umbra super terrain ;' for we
are but of > esterdav, (and therefore bad need
of the wisdom of those that were before us)
and had been ignorant, if we had not received
light and knowledge from our forefathers and
our days upon the earth are but as a shadow,
in respect of tin: old ancient days and times
past, wherein the laws have been by the wis-
dom of the most excellent men, iu many suc-
cessions of ages, by loug aud continual expe-
rience, the trial of right and truth, fined and
refined, which no one man, being of so short
a time, albeit he bad in his head the wisdom of
all the men in the world, in any one age could
ever have effected or attained unto. And
therefore it is ' optima rr-gula, qua nulla est
1 verior am firmior in jure, iieminem opurtet
' esse sapientiorem legihus;' [Co. Lit. 97. b.]
no man ought to take upon him to be wiser
than the laws. Secondly, in respect of our
forefathers. ' Ipsi," saith the text, 4 docebunt
4 te, et loquenturtibi, etex corde suo pruferunt
' eloquia,' they shall teach thee, and tell thee,
and shall utter the words of their heart, with-
out all equivocation or mental reservation ; they
1 say, that cannot be daunted with fear of any
power above them, nor be dazzled with the ap-
plause of the popular about them, nor fretted
with any discontentment, the matter of oppo-
sition mid contradiction, within them, but shall
speak the words of their heart, without all af-
fect ion <r infection whatsoever.

Also in their arguments of this cause con-
cerning an alien, they told no strange histories,
cited no foreign laws, produced no alien prece-
dents ; and that for two causes : the one, for
that the laws of England are so copious in this
point, as, God willing, by the report of this
case shall appear ; the ether, lest their argu-
ments, concerning an alien born,shnuJd become
foreign, strange, and an alien to the state of
the question, which, being quest io juris con-
cerning freehold and inheritance in England, is
only to be decided by the laws of this realm.

613J

STATE TRIALS, 6 James I. 1608.— 77* Out of the Voxtnati.

[614

And albeit I concurred with those that adjudged
the plaintiff to be no nlien, yet do I Iind a
mere stranger in this case, such a one as the eve
of i he law, our books and hook-cases, never
•aw, as the cars of the law (our reporters) never
heard of, nor the mourn of the law, tor 'judex
aft lex loqueni,' the judges our forefathers of ihe
Jaw, never tasted : I say, such n one, us t lie sto-
mach of the law, our exquisite and perfect
record* of pleadiugs, entries, and judgment*,
time make equal and true distribution of ail
cases in question, never digested. In a word,
this little plea is a gnat stranger to the l.iws of
England, as shall manifestly appear by the re-
solution of this case.

And now that 1 have taken upon me to make
a report of their arguments, I ought to do the
Mine as truly, fully, and sincerely as possibly I
can; kowbeit, seeing that almost cviryjufl^e
bad in tbe course oi hit urgumcfr a peculiar
method, and I must only hold myself t> one, 1
■ball give no just orfence to any, if J challenge
that which of right is due to every reporter, that
is, to reduce the sum and effect of all to such a
nrthod, as, upon consideration had of all the
arguments, the reporter him?elf thinkcth to be
fittest and clearest for the right understanding
(if the true reasons and causes of the judgment
and resolution of the case in question.

In this ca>e five things did fail into consi-
deration. 1. Ligeantia. 2. Leges. 3. Kegna.
4. Alicnigeua. £. What legal inconveniences
■cold ensue on either side.

1. Concerning ligeauce : 1. It was resolved
what ligeance was. 2. How many kinds of
bgeaiiccs there were. 3. Where ligeance was
dae. 4. To whom it was due. .And last, how
it was due.

2. For the laws: 1. That ligeance or obe-
dience of the subject to the sovereign is due by
the law of nature. 2. That this law of nature
h part of the laws of England. 3. That the
law of nature was before any judicial or muni-
cipal law in the world. 4. That the law of
nature is immutable, and cannot he < handed.

3. As touching the kingdoms: how far forth
by the act of law the union is already umde,
and wiierein the kingdoms do ye t remain sepa-
rate and divided.

4. Of Alir Jii^cna, an alien bom: 1. What
an alien horn ii in law. 2. The division aud
ditersit? of aliens. 3. Incidents to every alien.
4. Authorities in law. /». Demonstrative con-
dusims upon the picmises, that the pluinthT
Can l>e no alien.

5. Upon due consideration had of the con-
Kquent of this case : what inconveniences legal
d»uld foll*>%v on eithtr pnrty.

And thtse several parts 1 «iil in this re|K>rt
pursue in such ord«*r as they ha ve been pro-
JdwH^d ; and first dc tipeatitit.
1- (h) Ligeance is a mm <uid faithful ohodi-
■ceof tl#e subject due to his sovereign. This

ence

(If) Bacon's Discourse of Laws and Go* ern-
■e»i, ad. part fo. 46, 47, &c. Co. Lit. 129. a.
(JiQtiiu, lib. 2. fol. 160.

ligeauce and obedience is an incident insepa-
rable to every subject : for as soon as he is
horn, he oweth by birth-right ligeance and
obedience to his sovereign. 4 Ligeantia est
4 vinculum lidei :' and * ligeantia est quasi le^is
' c^entia. Ligeantia est ligamentum, quasi
4 ligatio mentium ; quia sicut ligament um est
4 eonnexio aniculorum et juiicturarnm, ccc'
As tli 3 ligatures or strings do knit together the
joints of all the farts of the liody, *o cloth
ligeauce join together the sovereign and all his
bulji-cts, t/uaii uno ligumiue. lilumi le, who
wrote in the reign of II. 2, lib. 9. cup. V. speuk-
inc ot the connexion which ought to be bet wee n
th-' lord and tenant that holdeth by homage,
saith, that 4 mutua debet cs-c domini et lide-
' litatis eonnexio, ita quod quantum debet do-
4 initio ex hom;»g:o, tuntum iih debet dominus
*" e\ dominio, prater solum revcrcntium,' and
the: lord, saith lie, ought to defend his tenant.
But between the sovereign and the subject
there is without companion a higher and
greater connexion ; fur as the subject oweth tt»
the king his tiueand faithful ligeauce and obe-
dience, so t'tr sovereign is to govern and pro-
tect his subject-, ' icgere et piotcgrre suhditos
<suos;* so as hit. ween the sovereign and sub-
ject there is 4 duplex et reeipiocuin ligameu.;
'quia sicut subditus rr-gi Uuetur ad ohedicn-

* nam, ita rex subditountiur ud protectionem :

* mc-rito igitur ligeantia dicilur a ligaudo, quia
( continct in se duplex ii'jamcn.' Aud therefore
it is hnlden in 20 II. 7, 3. a that there is a
liege or ligeance between the king and the sub-
ject. And I'onescue, cap. 13, ' rex (c) ad
4 tutelam I eg is corponua et honor um subdito-
4 rum Meiius ist.' And in the acts of «.arlm-
meiit of 10 H. 2, rap. 5. and 11 It. 2, cap. 1 ;
14 H. 3, cap. 2, &C.. subjects are railed liege
people ; and in the acts of parliament in 31
11. K, cap. 1, and 35 II. K, cup. 3, &c. the
king is called the licj;c lord of hU subjects. And
witli this utrrccth M. Skeene in his book De
Fxpnsitione \ erhurum, (wiiich book was cited
by one of thejudj**s which aigucd nguiri.st the
plaiutiiV ) ligeauce is the mutual bond and obli-
gation between the king and his subject?,
whereby subjects are called his liege subjects,
because they are bound to obey and serve him ;
and he is called their liege lord, because he
should maintain and' defend them. Whereby
it appeareih, th;it in this point the law of Eng-
land and of Sonl.ind is all one. Therefore it
istiulysaid, that * protec'io trnhit snhjeclio-
*" nein, et suhjeciio pnnectiniieni.* An I liereby
it pl.ual\ appeareih, that Usance doth not
be^iu by the oath in the leet ; for many men
owe true ligeance that never were sworn in a
leet, and the swearing iu a leet ma kerb no (d)
denization, n* the book i'. adjudged in 14 II. 4,
fol. If),b. This word ligeance is well expressed
by divers several names nr vntonyina which we
iind in our books'. Sometimes it is called the
obedience or obeysancc of the subject to the

(c) Cro. Arg. 64.

(d) fir. Dcniz. 11. postca .

615]

STATE TRIALS, 6 James I. 1008.— The Cote of the Postnati.

[616

king, 4 obedientia regi/ 9 E. 4, T. b. 9 E. 4. 6.
(e) 2 It. 3, 2. a. in the book of Entries,
4 cjectione firm* 7. 14 H. 8, cap. 2 ; 22 H. 8,
cap. 8, &c. Sometimes he is culled a natural

times ligeance is called faith, * fides, ad fidem
regis, &c.' Bracton, who wrote in the reign of
H. 3, lib. 5,Tractat'do Exception' cap. 24, fol.
42 7. ' K»t etinm alia except io que corapetit ex
4 persona quaeren(i$, propter defectum nationis,
' ut si auis alienigena qui fuit ad fidem regis
'Franc, &c.' And Fleta (which book was
made in the reign of K. 1.) agreeth therewith ;
for 1. 6, c. 47. De Except' ex Omissioue Par-
ticipis, it is said, * vel dicere put nit, quod

* nihil juris clamare potcrit tanquam parti-

* ceps, co quod est ad fidem regis Franciai,
4 quia alienigena repelli debent in Angl* ab
4 agendo, donee fneruut ad fidem reg' AugIV
Vide 25 E. 3, De Natis Ultra Mare, faith
nnd ligeance of the king of England ; and
Litt. lib. 2. cap. Homage, fa) ' saving the
4 faith that f owe to our sovereign lord the

* king;' and Glanv. I. 9. c. 1, 4 salvafide debi-
4 ta dom' rcgi et hxredibus suis/ Sometimes
ligeance is called ligealty, 22 Ass*, pi. 25. By
all which it evidently appeareth, that they that
are horn under the ohedience, power, faith, li-
gealty, or ligcance of the king, are natural sub-
jects, and no aliens. .So, as seeing now it doth
appear what ligeance is, it followeth in order,
that we speak of the several kinds of ligeance.
But herein we need to be very wary, for this
caveat the law giveth, 4 ubi lex n?m distinguit,
4 nee nos d.stinguere debemus ;' and certainly
4 lex non distinguit,' but w here * omnia uicm-
4 bra dividentia* are t> be found out and
proved by the law itself.

2. There is found in the law four kinds of
ligeanccs; the first is, * ligeantianuturalis, nb^o-
4 luta, pura et inclefinita ;* and this originally is
due by nature and birth-right, and is called
4 alta ligcantia,' and he that oweth this is
called ' suhriitus mints.' The second is railed

* li&eantia acquisita,' not by nature but by ac-
quisition or denization, being called a denizen,
or rather donui/on, because he is • Mihditus da-

* tus.' Co. Lit. 179. a. The third is ' ligeantia
local i«,* wrought by the law, and that is when
an sdiiu that is in amiiv romcih into England,
because as long us he is within England, he
•is within thy king's protection; therefore ko
long as he is here, he oweth unto the king
a local ohedience or ligeance, for that tht
one (as it hath been s*iid) diaweth the other.
The fourth is a legal ohedience, or ligeance
which is called legal, because the municipal laws
nf this leahu have prescribed the order and
form 'of it ; and this to be done upon oath at
the torn or leet.

ft) Br. Deniz. 0.

ff) 4 Hen. 3. Fitz. Dow. 179. Ellesmere's
Pofctuati 13, 1 1. Jenk. Cent. 3.
fa) Lit. seek 85. Co. Lit. 64. b.

The first, that is, Ligeance Natural, &c. ftp*
pcareth by the said acts of parliament, wherein
the king is called natural liege lord, and his
people natural liege subjects. [Co. Litt. 129
a.] This also doth appear in the indict-
ments of treason (which of all other things are
the most curiously and certainly indicted and
penned) tor in the indictment of the lord Dacre,
in 26 H. 8, it is said, * praed' doininus Dacre
' dehitum fidci et ligeam' sua;, quod prsfato
4 domino rcgi uaturaliter et de jure impenaere
1 debuit, minime curans, &c.' And Reginald
Pool was indicted in 30 II. 8, for committing
treason * contra dom' regem supremum et na-
4 tiiralem dominum suuin.' And to this end
, were cited the indictment of Edward duke of
(Somerset in 5 E. C, and many others both
of ancient and later times. But in the in-
dictment of treason of John Dethick in 2
and 3 Philip and Mary it is said, ' quod
4 prwd' Johannes machinans, &c. predict* do-
1 minum Philippnm et dominam Mariam su-
' premosdoiniuos suos,' and omitted ' naturales'
because king Philip was not his natural liege
lord. And of this i-oint more shall be said
when we speak of Ix>cnl Obedience. The se*
cond is Ligeant* Acquisita, or denization ; and
this in the books and records of the law ap-
peareth to be three-fold. [Co. Lit. 122, «.] 1.
Absolute, as the common denizations be, to
them and their heirs, without any limitation or
restraint. 2. Limited, as when the king doth
grant letters of denization to an alien, and to
the heirs (b) males of his body, as it appeareth
in 9 E. -1. fol. 7, 8. in Bnpgot's case; or to an
alien tor term of his life, as was granted to J.
Kevnel, 11 11. 6. 3. It may be granted upon
fc) condition, for f d) * cujus est dare, ejus e*t
4 disponere/ whereof I have seen divers prece-
dents. And this denization of an alien may be
effected three manner of ways; by parliament,
at it was in 3 II. 6. 55, in bower ; by letters
patent, as the usual manner is; and by conquest,
as if the king and his subjects should conquer
another kingdom or dominion, as well Autenati
as Postnati, as well they which fought in the
field, as they which remained at home, for de-
fence of their country, or employed elsewhere,
are all denizens of the kingdom or dominion
conquered. Of which point more shall be said
hereafter.

3. Concerning the Local Obedience it is ob-
servable, that as there is a local protection on
the king's part, so there is a ft) local ligeance
of the subject? part. And tins appeareth in 4
Mar. Br. 3 2. fj ) and 3 and 4 Phil, and Mar.
Dyer, 114. Sherley a Frenchman, being in
amity with the king, came int<> England, and
joined with divers subjects of tins realm in trea-
son against tlu king and queen, and the indict*

fb) 9 E. i. 8. (c) Co. Lit. 129. «. 274. b.

(tt) 2 Co. 7. b. 4 Inst. 192. 2 Siderf. 73.
Hard. 412. Lit. Hep. 128. 1 And. 115. Salk.
411, 412. 4 Mod. 215, 222. Vaugb. 405.
Dav. 36.

ft) Co. Lit. 199. a. ff) B. N. C. 487.

M7]

STATE TRIALS, 6 Jambs I. 1608.— The Cast of the Postnati.

[618

went concluded (g) ' contra ligeant' sua? debi-
4 turn ;' for he owed to the king a Local Obedi-
ence, that is, so long as lie was within the
king* protect iou ; which Local Obedience be-
ing bat momentary and uncertain, is yet strong
enough to make a natural subject, tor if he
hath issue here, that issue is (h) a natural born
abject; k fortiori, he that is born under the
natural and absolute ligeance of the king,
which, as it hath been said, is ' alia h^cantia,'
as the plaintiff in the case in question was,
ought to be a natural bom subject; fur * loca-
• lis hgeantia est ligeuntia inn inn et minima, et
'maiune incert*.' And it is to he observed,
that it is * nee ccelum, nee solum/ neither the
cbuate nor the soil, hut ' ligeann.V and ' obe-
diential that make the subject born ; tor if
lies should come into the realm, and pos-
a town or fort, and have issue there, that
is no subject to the king of England,
though he be born upon his soil, aud under his
■wridian, for that he was not born under the
ligeance of a subject, nor under the protection
of the king. And concerning this local obedi-
ence, a precedent was cited in Hilar. 30 Eliz.
when Step ha no Ferrara de Gania, and Kmui-
aoel Lewis Tinoco, two Portuguese born, com-
isg into England under queen Elizabeth's safe
conduct, and living here under her protection,
joined with doctor Lopez in treason within
ioh realm against her majesty ; and in this
case two points were resolved by the judges.
Kim, that their indictment ought to hen in, that
ihfj intended treason * contra dominam reui-
1 nam, &c.' omitting these words ' natunlem
'dofmn* suam' and ought to conclude ' contra
*(i) ligeant' sux debitum.' But if an (k)
alien enemy come to invade this realm, and he
taken in war, he cannot he indicted of treusun ;
for the indictment cannot conclude * contra li-
geant* sue debitum/ tar he never was in tiie
protection of the king, nor ever owed any man-
ner of lt«eaucc unto him, hut mance and en-
mity, and therefore he shall he put to death by
martial law. Ami .so it was in anno lj II. 7,
(I) in Per kin War heck's case, who, being an
•lien born in Flanders, feicntd himself to I e
°ne of the sons of Edward the 4 th, and invaded
(hit realm with great pover, with an intent to
take upon him the dignity royal; but being
taken in the war, it was resolved by the in-»-
noes, that he could not he punished by the
cow.iion Jaw, hut before the constable and
uarahal (who had special commission under the
great *eul to hear and determine the same ac-
cording to innrtiul law) he had sentence to he
draw a, hanged, aud quartered, which was exe-
cuted accordingly. And this anpeareth in the
hoi of Griffith attorney general, by an extract

(g) Huh. 271. Co. Lir. K>o. n. Dvcr M5.
pi. 62.1 aul> 1H1. 3 Ixibt. 11.

(h) C». Lit. 0. a. .r> Eliz. Dyer 22-t. a. b.

fi) 3 Inst. 11. I)v. 113. pi. 62. iJawlv.lG.'i.
Hob. ¥71. Co. Lit. U9. a.

(k) 3 Inst. 3, II.

(I) Bacon's Hist. II. 7. fo. 11.

out of the book of Ilobart, attorney-general to
king II. 7.

4. Now are we to speak of Legal Ligeance,
which in our books, viz. 7 E. 2, tit. Avowry,
211. 4 E. 3, fob 42. 13 E. 3, tit. Avowry, 120,
&c. is called Suit Royal, because that the lige-
ance of the subject is only due unto the king.
This oath of ligeance appear* thin Brittou,\vho
wrote in anno j E. 1, cap. 29. (aud is yet com*
monly in use to this day in every ieet) mid in
our books; [Co. Lit. 68. b.] the effect whereof
is : 'You shall swear, that from this day for-
' ward, vou shall be true and faithful to our so-
' vereign lord king James, and his heirs, and
4 truth and faith shall bear of life and member,
4 and terrene honour, and you shall neither

* know nor hear of any ill or damage intended
' unto him, that you shall not defend. So help

* you Almighty God.' The substance and et*
feet hereof is as hath been said due by the law
of nature, * ex institutione uatursr,' as hereafter
shall appear. The form and addition of the
oath is, ' ex provisione hominis.' In this oath
of ligeance five things were observed. 1. That
for the time it is indefinite, and without limit,
' from this day forward.' 2. Two excellent
qualities are required, that is, to be ' true and
' faithful.' 3. To whom, ' to our sovereign lord
' the king, and his heirs:' [Co. Lit. 68. h.jand
albeit Britton doth say, to the king of England,
that is spoken ' propter excellentiam,' to design
the person, and not to couline the ligeance; tor
a subject doth not swear his hgeance to the
king, only as king of England, and not to him
as king of Scotland, or of Ireland, &c. hut ge-
nerally to the king. 4. In what manner; ' and
*" faith aud troth shall bear, &c. of life and mem-
' her,' that i«, until the letting out of the last
droit of our dearest heart's blood. 5. Where
and in what places ought these things to be
done, in all places whatsoever; for, ' you shall

* u (it 1st r know nor hear of any ill or damage,
' &c.' that you shall not defend, &c. so as na-
tural ligeance is not circumscribed within any
place. It is holdeu 12 II. 7, 18. b. that he,
that is sworn in the leer, it sworn to the king
for his ligeance. that is, to be true and faithful
to the kii.£; and if he be once .sworn for his
ligeance, he shall not be sworn again during his
lite. And all letters patent • »f denization be,
that the patentee -ball behave him sell' ' tanquam
' vcrus et u'delis likens domini regis.' And this
0'ith of ligeance at the torn and leet was first
instituted by king Arthur; for so I read, inter
leges si ncti Edwardi regis ante Conqucstum, 3
c;in. 35, [Co. Lit. Ott. b.J * Et quod onincs prin-
' cipes et coinitcs, procercs, uiilites et liberi
' homines di-hcnc jnrare, &c. in Toikemote, et

* similiter omncs proceres regni, et milites et
( liberi homines uuiversi toiius rigid Britann'
4 facere dehent in pleno Folkemote fidelitatera
' domino ieui, &c. llanc legem invenit Ar-
4 thnru.% qui quondam hi it inclytissiruus rex Bri-

j 4 tonurn, &c. Ilujus legis authoritate expulit

i * Arthurus rex Sararcnos et inimicos a regno,

" &c. «*t bnjus ki!is amhoritate Etheldrcdus rex

4 umo et eotlcm die j>cr uuiversum regnum Ds>

619]

STATE TRIALS, 6 James I. 1608— 27fc Que of the Postnati.

[690

4 nos occidit.' Vide Lambert inter leges regis
Edwardi *&c. fol. 135 and 136. [Co. Lit. 68.
b. 172. b.] By this it appeareth, when and
from whom this legal ligeance had his first in-
stitution within this realm. Ligcnntia in the
case in question is meant and intended of the
first kind of ligeance, that is, of ligeance natu-
ral, absolute, &c. due by nature and birth-right.
But if the plaintiff's father be made a denizen,
and purchase lands in England to him and his
heir?, and die seised, this land shall never de-
scend to the plaintiff; [Co. Lit. 8. a. 129. a.]
for that the king by his letters patent may make
a denizen, but cannot naturalize him to ail pur-
poses, as an act of parliament may do; neither
can letters patent make any inheritable in this
case, that by the common law cannot inherit.
And herewith agree tb 36 H. 6, tit. Denizen,
Br. 9.

Homage in our book is two-fold, that is to
say, ' homagium ligeum,' and that is as much as
ligeance, of which Bracton speaketh, 1. 2. c. 35.
f. 79. ' Soli regi debet' sive dominio seu ser-
4 yitio,' and there is * homagium fcodaie,' which
hath his original by tenure. [Co. Lit. 68. b.
Vaug. 279.] In Fit. Nat. Brev. 269, there is a
writ for respiting of this later homage, which is
due ' ratioue feodi sive tenure : sciatis quod
' respectuamus homagium nobis de terr' et te-
4 nementis quae tenenter dc nobis in capite de-
' bit.' But' homagium ligeum, i. ligeantia,' is in-
herent and inseparable, and cannot be respited.

3. Now are we come to (and almost past)
the consideration of this circumstance, where
natural ligeance should be due : for by that
which hath been said, it appeareththat ligeance,
and faith and truth, which are her members and
parts, are qualities of the mind and soul of man,
and cannot be circumscribed within the predi-
cament of ubi; for that were to confound pre-
dicaments, and to go about to drive (an absurd
and impossible thing) the predicament of qua-
lity into the predicament of ubi. ' Non rcspon-
4 detur ad banc tpurstionem, ubi est?' To say,
' vefus et tidelus subditus est ; scd ad banc
' qarestionem, qualis est? Recte et apte respon-
' aetur, verus et fide! is ligeus, &c. est.' But
yet for the greater illustration of the matter,
the point was handled I y itself, and that lige-
ance of the subject was of as great an extent
and latitude, as the royal power and protection
of the king, ' et e con verso.' It appeareth by
the stat. of 11 H. 7, cap. 1. and 2 E. 6, cup. 2.
that the subjects of England are bound by their
ligeance to go with the king, &c. in his wars, as
well within the realm, &c. as without. And
therefore we daily see, that when either Ireland,
or any other of his majesty's dominion*, be in-
fested with invasion or insurrection, the king of
England sendeth his subjects out of England,
and his subjects out of Scotland also into Ire-
rand, for the withstanding or suppressing of the
same, to the end his rebels may feel the swords
of either nation. And so may his subjects of
Guernsey! Jersey, Isle of Man, &c. be com-

• See I* L. Saxon per \Y ilk ins p. 204.

manded to make their swords good against
either rebel or enemy, as occasion shall be
offered. Whereas if natural ligeance of the
subjects of England should be local, that is,
confined within the realm of England or Scot-
hind, &c. then were not they bound to go out
of the continent of the realm of England or
Scotland, &c. [2 Inst. 47,48, 528. J And the
opinion of Thirninge in 7 II. 4. tit. Protect'
100, is thus to be understood, that an English
subject is not compellable to go out of the
realm without wages, according to the statutes
of 1 E. 3, c. 7. 18 E. 3, c. 8. 18 H. 6, c. 19,
&c. 7 H. 7, c. 1. 3 II. 8, c. 5. &c. [2 Inst. 688.]
In ann. 25 E. 1, Bigot earl of Norto Ik and Suf-
folk, and earl marshal of England, and Bohua
earl of Hereford and high constable of Eugland,
did exhibit a petition to the king in French
(which I have seen anciently recorded) [May-
nard's E. 2. fo.] or the behalf of the commons
of England, concerning how and in what sort
they were to be employed in his majesty's wars
out of the realm of England ; [2 Inst. 528.]
and the record saith, that, * post multas et
' varias altercationes,* it was resolved, they
ought to go but in such manner and form
us after was declared by the said statutes,
which seem to be but declarative of the
common law. And this doth plentifully and
manifestly appear in our books, being truly
and rightly understood. In 3 li. 6, tit. Pro-
tection 2, one had the benefit of a protection,
for that he was sent into the king's wars * in
1 comitiva* of the protector ; [Co. Lit. 190. b.]
and it appeareth by the record, and by the
chronicles also, that this employment wa» into
France ; [Co. Lit. 130. b.] the greatest part
thereof then being under the kiug's actual obe-
dience, so as the subjects of England were em-
ployed into France for the defence and safety
thereof: in which case it was observed, that
seeing the protector, who was Prorex, went, the
same was adjudged a voyage royal, 8 II. 6. fol.*
16. b. the lord Talbot went with a company of
Englishmen into France, then also being for
the greate»t part under the actual obedience of
the king, who had the benefit of their protec-
tions allowed unto them. [Fitz. protect. 5. Br.
protect. 48.] And here were observed the
words of the writ in the Register, fol. 83. where
it appeareth tLat men were employed in the
king's wars out of the realm * per praceptutn
' nostrum,' and the usual words of the writ of
protection be ' in obsequio nostro,' [Fitz. pro-
tect. 13.] 32 II. 6. fol. J. a. it appeareth, that
Englishmen were pressed ii»:o Guyienne, [Fits,
protect. 35. Br. protect. 24.] 44 *E. 3. 12. a.
into Gatcovnv. with the duke of Lancaster, 17
H. 6. tit. Protection, into [Fitz. protect. 56.]
Gasoiyne with the earl of Huntingdon. steward
of Giiieiuie, 11 and 12 II. 4. 7. o. into (a)
Ireland, and out of this realm with toe duke of
Gloucester and the lord Knulles: vide ( bj 19

(a) Fit/.. Protect. 2L Co. Lit. 130. b. Br.
Protect. 3 1.

(b) Fit/.. Protect. 8. Br. Protect. 40.

Gil]

STATE TRIALS, 6 James I. 1608.— The Case qf the PostnatL

[629

II. 6. 35. b. And it appeareth in 10 Ed. 2. tit.
Avowry 944. 26 Asa. 66. 7 U. 4. 19, he. that
there was ' forinsreum servitium,' foreign ser-
vice, which Bracton, fol. 36. calleth * regale
* territium •' and in Fitz. N. B. 28. that the
king may send men to serve him in his wars
beyond the sea. But thus much (if it be not
in to plain a case too much) sliall suffice for
this point for the king's power, to command the
■mice of his subjects in his wars out of the
realm, whereupon i( was concluded, that the
ligeanceof a natural-bora subject was not local,
and confined only to England. Now let us
see what the law saitb in time of peace, con-
cerning the king's protection and power of
command, as well without the realm, as within,
that his subjects in all places may be protected
from Yioleoce, and that justice may equally be
administered to all his subjects.

In the Register, fol. 25 b. ' Rex universis et
1 singulis admiral!', castellan', custodibus cas-
trorum, villar', ct alioruin fortnlitiorum prte-
positis, vicecom' majoribus, custuinuriis,
custodib' portuum, ct alior' locor' maritimor'
ballivis, ministr', et aliis fidcl' suis, tarn in
transmarinis quam in cismurinis partib' ad
quo*, &c salutem. Sciatis, quod susceptimus
in protcctionemetdefension' nostrum, necnon
ad salvam et securam gardiam nostrum W.
veniendo in regnum nostrum Angl', et potcs-
tatem nostrum, tarn per terrain quam per
mare cum uno valet to suo, ac res uc bona sua
qcccunque ad tract and' cum dilectn nostro et
tideli L. pro redemptione prisonarii ipsius L.
infra regnum et potest ate ru nostrum prad' per
ftt menses moratido ct exinde ad propria
rcdeundo. Et ideo, &c. quod ipsum W. cum
Taletto, rebus et bonis suis pram' veniendo in
rteu' et potest at' nostra m prxd' tarn per terr'
Oflaiu per mare ibid' ut pra-dict' est ex causa
antedicta morando, et exinde ad propria re-
deundo, manuteueati*, protcgatis, ct deien-
datis; non iuferentes eis, ore. seu gravamen.
Et si quid eis forisfuctum, &c. reformuri
factatis. In cujus, ore. per sex menses dura-
tar*. T..&C.' In which writ three things are
to be observed. 1 . That the king hath ( fidem
'ctfidelrs in partib' transmarinis.' 2. Tlmt
ke hath ' protection' in partib' transmarinis.'
1 That he hath * potestatem in partilms trans-
■nrinis.' In the Register, fol. 26. * Rex
BUTersis et singulis admirallis, castellan is,
caitodiUis custrorum, villarum, et alioruin
fortaiitiorum prspositis, vicecom' majoribus,
costumariis, custodib' portuuin, ct alior' locor'
mariiimorum ballivis, miiiistri«, et aliis tideli-
bos suis, tarn in transinurinis quam in cis-
marinis partib us ad quos, &c. salutem. Sriatis
quod sugcephnus in protect ion em ct dneii-
uonem nostram, necnon in salvum et sccui'nn
conductum nour' I. valutturn P. et. L. Bur*
gentium de Lyons ohsidum nojtrorum, qui de
Ikemia nostril nd partes truusmm-inn.* pro-
fccturus est, pro fiaautia ningistroium simrum
predict' obtinenda vel deferendft, cundo ad
partes predict as ibidem morando, et exnulc
»n Angl' redeu udo. Et ideo vobis inandnmus,

* quod eidem I. eundo ad partes pned' ibidem
' morando, et exinde in Angl' redeundo, ut

* praxT est, in persona, bonis, aut rebus suis,
' non inferatis, seu quantum in vobis est ab aliis

* interri permit tat is injuriam, molestiam, &c.

* aut gravamen. Sed cum potius salvum et
' secumm conductum, cum per luca pastus, seu
' districtus vestros transient, et super hoc re-

* quisiti fueritis, suis suinptibus habere faciatis.
' Et si quid eis forisfactum merit, oxc. refor-

* mari fnciatis. In cujus, &c. per tres aim7
' durat' T. &c.' And certainly this was, when
Lyons in France (bordering upon Burgundy, an
ancient friend to England) was under the actual
obedience of H. 6. For the king commanded

fidelibus nits, his faithful magistrates there, that
if any injury were there done, it should be by
the in reformed and redressed, and that they
si ion Id protect the party in his person and
goods in peace. In the Register, foL 26, two
other writs. ' Rex omnibus seneschallis, ma-

* jori bus, jurat is, paribus' praspositis, ballivis et
' fidelibus suis in ducatu Aquitaniaj ad quos,
' &c. salutem. Quia dilecti no his T. et A.
' cives civitar/ Burdegal' coram nobis in can-
' cellar* uost' Angl' et Aquitan' jura sua prose*
' quentes, et metuentcs ex vcrisiinilibus conjec-
' turis per quosdum sibi cumin inantes tam in

* corpore quam iu rebus suis, sibi po»se grave
' damnum inferri, supplicaveiunt nobis sibi de
' protectione regia providere : nos volentes
' dictos T. et A. ab oppressionibus indebitis
c pneservare, suscepimus ip*o< T. et A. res ac
£ jnstas possessionem et bona sua quu»runque in
' prntectionem et salvum gardiam nustram spe-

* cialeni. Kt vobis et cuilibet vestruiu injungi-
( mus et mandamus, quod ip«o$T. et A. fami-

I ' lias, res ac bona sua ^ultccikjuc1 a violentiis
1 et graviiminihus indebitis defendatis, et ipso*
' in justis pos&e.^sionibus suis manuteuenti*.

* Et si quid in pr&judiciuin hujus protectinnis

* et salva; ^ardiar nostr'nttentatum inveneritis,
( ad statuin debituni reducalis. Et ue quis so
1 possit per ignoruntiam excusare, pra?*entem

* protectionem et salvum gnrdiain no>train fa-
c ciatis in lot is de quihus tequisiti fueritis infra
' district' vest rum publice. iutimnri, iuhihentes
4 omnibus et singulis «ub p<mis ^ra\ibus, ne
' dictis A. et T. seu famuli* suis iu peix>nis seu
' rebus suis, injuriam, molestiam, damnum ali-
' quod interant seu uravnmen : et i>eiiOi:ellas
1 nostras in locis et bonis ipvirum T. et A. in
' signum proteetionis et -:d' gard' memorat,J
' cum siijrrr hoc refjuisiti fueritis, p.pponatis.
1 In cujus, C^c. riat' in palatio uoetro Westm*

* sub miigni >iii;ilii tctetmionio, hextotiiu AugusLi
1 jMint) II V.. .'i. — Hex i!:u\er>i« ct singulis se-

' * ni^challis con*t:ihu!nr\ciistflhini% prauposit*,
I * minimi', et oiuiiih* ballivis et lidelitms suis in
! ( (lominio iiostrn Aqniiaii' « o:i«titu'.is »d quos,
" ' C'ec. saint'. \ o!« rit^-s <». et R. uxor ejus lii-
{ * vore prosequi giatidM^iiisos (j. et R. homines
, 4 et familias suas ac juntas pos^essiones, ct bona
, * «ua qiia'Ctmque, Mi^crpimus iu proitctioncm
j ' et dcfeusioueui no-tnim, necnon in snlvani
! ( gardiain nostram specialoiu. Et ideo vnhis
; ' et cuilibet vest rum injungimus ct mandamus.

623]

STATE TRIALS, 6 James I. 1608.— The Case qfthe Poetnati.

t«*

' quod ipsos G. et R. eorura homines, fatnilios

* suas, ac justatf possessions et bona sua quse-

* cunque manuteneatis, protegatis, et defend a-
' lis : non inferentes eis, seu quantum in vobis
4 est ab aliis inferri perm it ten te*, injuriain, mo-

* lestiain, damnum, violentiam, impedimeutum
4 aliquod seu gravamen. Et si quid cis foris-
4 fact' injuriatum vel contra eos indcbite atten-

* tatum merit, id eis sine dilatione corrigi, et

* ad statuni debituin reduci faciatis, prout ad
1 vos et quemlibet vest rum noveritis pertinere :
' penocellas super domibus sub in signum prae-

* sentis, salvae gardhe nostra (prout moris erit)

* facientes. In cujus, &c. per ununi annum

* duratur'. T. &c/ By all which it is mani-
fest, that the protection and government of the
king is general over all liis dominions and king-
doms, as well in time of peace by justice, as in
time of war by the sword, and that all be at his
command, and under his obedience. Now
seeing pow er and protection draweth ligeance,
it followeth, that seeing the king's power com-
mand and protection exteudcth out of England,
that ligeance cannot be local, or confined
within the bounds thereof. He that is abjured
the realm, ' qui abjurat regnum amittit reguum,

* sed non regem, amittit patriam, sed non pa-

* trem patria) :' [Cawly 139.] for notwith-
standing the abjuration, he oweth the king his
ligeance, and he remaineth within the king's
protection ; for the king may pardon and re-
store him to his country again. So seeing that
ligeance is a quality of the mind, and not con-
fined within any place ; it followeth, that the
plea, that doth confine the ligeance of the
plaintiff to the kingdom of Scotland, * infra li-
4 geantiam regis regni sui Scotia?, et extra Lige-
4 antiam regis regni sui Anglia?,' whereby the
defendants do make one local ligcanre for die
natural subjects of England, and another local
ligeance for the natural subjects of Scotland, is
utterly insufficient, and against the nature and
quality of natural ligeance, as often it hath
been said. And Coke, chief justice of the
court of Common Pleas, cited a ruled case

E?obledike's case, temp. E. 1. reported by
ingham.] out of Hingham's Reports, temp.
E. 1. which in his argument he shewed in court
written in parchment, in an ancient hand of
that time. Constance de N. brought a writ
of aycl against Roger de Cobledike, und others,
• named in the writ, and counted that from the
seisin of Roger her grandfather it descended to
Gilbert his sou, and from Gilbert to Constance,
as daughter and heir. [Ellcsmere's PoMtuati
91, 9 2. J ' Sutton dit, sir, el ne doit este re-
' spunde, pur ceo que el est Francois et nient
' de la ligeance ne a la foy Denglitterre, et de-
1 maud judgement si el doit action aver :' that
is. * she is not to be answered, for that she is a
' French woman, and not of the ligeance, nor
' of the faith of England, and demanded iudg-
' inent, if she this action ought to have.' liere-
ford, then chief justice of the court of Common
Pleas, by the rule of the court disalloweth the
plea, for that it was too short, in that it referred
(igcAucft and faith to England, and not to the

king. And thereupon Sutton saith as fbllow-
eth ; 'Sir, nous voilomus averre, que el ne est
4 my de la ligeance Dengliterre, ne a la fby le
1 roy, et demand jugement, et si vous agaraea
' que el doit este responde, nous dirromos as-
* sets :' that is, ' Sir, we will aver, that she is
4 not of the ligeance of England, nor of the
' faith of the king, and demand judgment, &c.'
Which latter words of the plea, nor of the
faith of the kitig, referred faith to the king in-
definitely and generally, and restrained not the '
same to England, and thereupon the plea was
allowed for good, according to the rule of the
court : for t lie book saith, that afterward the
plaintiff desired leave to depart from her writ.
The rule of that case of Cobledike, did, as Coke
chief justice said, over-rule this case of Calvin,
in the very point now in question ; for that the
plea in this case doth not refer faith or ligeance
to the king indefinitely and generally, but li-
miteth and restraineth faith and ligeance to
the kingdom, ' extra ligeantiam regis regni sui
4 Anglix,' out of the ligeance of the king of his
kingdom of England : which afterwards the
lord chancellor and the chief justice of the
King's- bench, having copies of the said ancient
report, affirmed in their arguments. So as
this point was thus concluded, * quod ligeontia
' natural is nullis claustris coercetur, nullis
' metis refraenatur, nullis finibus prr-initur'

4 & 5. By that which hath been said it ap-
peareth that this ligeance is due only to the
king ; so as therein the question is not now,
' cui, sed quomodo debet nr/ It is true, that
the king hath two capacities in him : one a na-
tural body, being descended of the blood royal
of the realm ; and this body is of the creation
of Almighty God, nod is subject to death, in-
firmity and such like: the other is a politick
body or capacity, [1 Inst. 15.. b. 16.] so called.
because it is framed by the policy ot man (and
in 21 E. 4, 39. b. is called a mystical body ;)
and in this capacity the king is esteemed to be
immortal, invisible, not subject to death, infir-
mity, in fancy, (a) nonage, occ. PI. Com. in the
case of the lord Bark ley 238. and in the case of
the Duchy '213. 6 E. 3, 391. and 26 Ass. pi.
54. Now seeing the king hath but one person,
and several capacities, and one politick capa-
city for the realm of England, and another for
the reului of Scotland, it is necessary to be con-
sidered, to uhich capacity ligeance is due.
And it was resolved, that it was due to the na-
tural person of the king, which is ever accom-
panied with the politick capacity, and the
politick capacity, as it were appropriated to
the natural capacity, and it is not due to
the politick capacity only, that is, to his
crown or kingdom distinct from his natural ca-
pacity, and that for divers reasons. First,
every subject, as it hath been affirmed by those
that argued against the plaintiff, is presumed by

law to be sworn to the king, which is to his na-

■ ' ■ ■ "— — — «— . — ^~~-^

(a) Postea . Co. Lit. 43. a. 5 Co. 27. a^
Plowd. 213. a. 221. a. 364. b. 26 Asa. 54.
Fits. Enfant 15. Br. Age 34.

62j]

STATE TRIALS, 6 James I. lGOS.— The Case oftl* Tostnatl

[C2C

turul person, and likewise the kin^ is sworn to
Ins subject!*, (us it appeareth in Hiacton lil). 3.
I)f Actio. nbu>, cap. 0. lb*. 1*)?.) which oath in
lakeiti in ln*» natural person: tor the politick
rapacity is invisible and iiiii;i«>rt::l ; nav, the
politick Lon'y hath no sold, for ii U fraiiud by
the policy ot* man. 2. In all indictuicnts of
treason, when any do intend or compass * mor-
' tern tt desti uctionciu domiui rcuis/ which mu*l
needs be understood of his natural bod}, for
h:s politick body is immortal, and nol suhjecc
l> death, the indictment curic'udclh, ' contra
* (bj l:^eunti£ sine debitum / ergo, the lincance
in due to tin: natural hody. \ ide I'i;z. Justice
nf lJt«ut 53. and PI. Coin. 3LU. in tin* carl of
I^ictatcr's case. 3. It is true, that the km*;
in genere ditth not, hut, no question, in indtvi-
duo lie diethr as for example, II. C, \\. (>, cVc.
and queen Kliz. died, other v. i*e yon should
have many kings at once. In 'J and 3 I'h. and
Mar. Dyer J Go*, (c) one Cor.«tabIe di.*pei>ed
c!hers bills in the streets in the nh-Jii, in ".hie h
it was written, that king K. 6 wu3 alive and in
Frjiice, &c. and in Colenum-Mrcer, in London,
lie ptiinted to a youi;;i nnn, i»r.d said that he
■as king Edward 0. And thi«> Uiu:; spoken da
mfivitluo, and uccifinpunud with other circum-
bt<uiccs, was resolved to he hi»Jj tieason ; fur
the U hie a Constable w.is attainted and exe-
cuted. J. A id) body politick, being invisible,
can us a hody | olitiek uciiher make or hike
huinage: Vide 33 11. 3, tit. I\;.';v, ihook l.">.

5. Jnji'Je, in fai'.h Mr lineaihc, noihiiij ts»e.;ht
to be leaned, but nu:;ht to be i c //..'«■ wmfsta.

6. The kinv holdcih the k::.j >.-.m of Knjaud
b? hirth-ii^iit inherent, by di.-n-ut fVoiii tin;
Wood royal, wheieuj on sulci1- o t d.sih : tu-nd;
uud therefore it is n-'inllv r ui-I "* »■> the kin", his
lieits,ahdsn<Xt^sor.>,'/. Iji rein Ii.::> is firs: named,
uid successors is aticudnu: up%#u !■■. ir1. Andrei
in our anciei't !-nu3iiicc.^i";i .md succes-
»>rare taken fur hen-diru'.ice and lu.ii>. l>i\nt.
lib. Q. De Arqiiirvndo KiTiim Dotninio. c. '29.
1 £t sciend' est, o-.s-id hiercd.ta^ c-:*i Micccs»io in
1 uuiveisutn jus ipod dciuiictU) aniecesM.r ha-
' buit, ex caus'i qiiacunque nrqiibiti >nis \<\
1 luccessionis, et aliht aliiuitatij jure noila sik"-
'cessio penuittitnr.* Unt the tide- i^ by de-
Kent. By queen Elizabeth's death li-e crown
and kingdom of England dt sceude ! to hi3
majesty, and he \\ as fully and abrulutely there-
by king, without nny obentnl ciMfinniiy or act
tube done ex pmtjiicto : for cor<.ii.»tion is but
a royal ornament and Mdtmui/aiioii of the
rnyM'de-renr, but no part of the title. In the
first fear of bis nuiievv'^ r« ijjn, before his ma-
J«ty'» coroniitiun, Wat-on (c) and Clerkc, n--
luiiiary prie?t«., njnl e:lj-.i>, wire of opiui ,e,

(b) Autea 3 Insr. 11. Hob. '271. J>y. 113.

pL6tf.Cuwly in;>.Co. Lit. i,>o. a.

(c) lhi» case U not i'i the boi-k at lii^e.
Lulls in the Abrid^mrnt of l*v. fo. I'?. S'uv.'i

»

Abridgni. p. U»rl. H)o"4. Speed's Chron. j>.
1127. col. S.'iiuiii. IUO.

(d) 10 Co. 32. 1. Co. Lit. CG. b. 4 Co. 11. a.
ffj 3 Imt. 7.

Vol.. )l.

tlmt his majesty was no comph le Mid absolute
kimj; before hi* romiKiti.m, but tluil coronal ion
did add a conliiinaLioii and ]K.;'eciiim to the
dctceur. ; and thereio.T, ohs- ne rluir dauiuu-
b!e ; ud clsiiiiiit.il c.un-i tpicut, t'.iat they \>J
slrei.j:'!! and power mi^ht !.-»■! mC 1 .> c<.i-,jiiatioii
tike him and h:s royal i«aise i.ito ti.e.r jm'scF-
bioii, keep him priMiinr in the Toui :•, ivn.ove
j>i!(li couiibcllois and nn-at (nhee:- a-> j leaxd
tiiein, and constitute oilier» in llu ir ; lace-;, iS:c.
and that these and ollur acts ol like i.atme
could iiut be treason :;^;aiiibt hi> majesty, before
he were a crowned kiii»jj. Hut it w:i& cleailr
UNolved by all the judges of Knulaiid, that ]irc-
se«;t;y by the di scent his nirji^ty via* cum*
pletely and ab:oluteiv hing, wiihout any i >kmi-
ti.d ceremony or act to be done tr pos! J'ucto ;
and that (J) coronation was but a royal oriu.-
Udi;, and outward solemni/ation ol' the (lo-
."Ceut. And this r'ppcarcth evidently by infi-
nite precedent:* and hnok-ca-sc* : as takin;* one
c-vaiuple in a ease >■> civar lor all, f uiiiy 0 whs
not crowned ut:t;l tlu Uth year of his reitn, and
\i t ciixers lncii hef m: hi» c . i'-n:ition were at-
l.iiiitei of tnason, of U-lony, <\c. and l;ir was
as al-uia:e and coin) le:i- a l-inir, both i'V m:;t-
ters of iudicature. as for ■■rar.t1, i\c. before his
eoruiiation, a.> he w,h alter, a» it appc-ait-tii in,
the reports nf the l.-t, 2d, 3d, lib, Oth.Clh, and
7lh vcars of ihe same kiwi'. And the like ininl.t
I e produce -I f-T many otl <:j kii ^ of ihis realm,
which for hreviLv i-: a (-i*.- «>o rlc; r 1 oiiiit. l»y
which it manifisily apiieaivth, th.it bv the
laws of Falkland lh(-rec::n be no inu -riv^num
wiil, in llic- sauir-. Ifli.t- !;i:.<: !e sii-«i! of lainl
bv a di.feasih!-.; tiile, an i ciieib mi-<. !, V-U de-
•it at shall t'ill the entry id' ban tout ii::ht hath,
as it «! neai'i-t1! bv «> i" •■ ) I'. I. .'»i Ii.it if the
ncNt ki:. ■ lu.d it. by Mis i.v--i--n, lba» .-!i .-uld t:ihe
awav u.) i:ji:-,-t ai it s-i •-eai'-th I ■■ i illlet'Mi,
i*-l. lJ7. If a i!i.-«: i--«or »il an i s : i* . 1 1 ? i-inev the
I. -nd X t the kium£» \i i o ii'.i ih : : i-ed, ■ii.!." ds-i-ei t
taketh away the i-nt rv (»i* tin- ieli-m, a> it i-> ^:.m!
in 31 II. o." lid. 31. ;h) ];,.):*■. A- . pi. o. L'low.
Com. 'J3 J-, w.'i.-.t' thciv.1 e v ■■; '. m;j. II. 3 ^'i^e
a man#: t > hi- '. =.»'.;.■. r i \:%. e :. '. .-i ^ mnwid in
tail, :i*. wb:.. i:m.o tlu- - .ine «.. .-. ;: ft i -.*.im|do
co-idirional. kip;: fl. .1 d1- d. t! e e'nl 1 eUne tl'.o
?l:tule ol' Doii.i t.'iiudiiio'.n.'i'i in\ii!L- n«» i-.-i o,
by tleu! e\iJ::ii:un%i ibe uj.hh-: wil'i \\:ir.a::tjf
fur oibi-r lairK i l fe;,au.i i:hilv.;i!...::t i-mt,
and the warranty and a.^trU di - • ;nh'd i:i nil
i r inpiitu ki..j; !.•!. 1. : nd ii *•■-<■ adjucLed,
tin: r his w.ur..i.!«, :-.;i'l a*«> t-. w'i> u ih m -eMiied
upon the natural |" r-.".i t«f t".» k,i 'j* b:iri*t-d
liiu: of ti.e pw-jl,.lit ■, of ii'.\; !•!. la the
iv!i;n di" Edward 2, the >;i:'i i-. r he* father

(/) 3 InM. 7.

* tv'. If "ot -i »" t-vicM k?! ,'. 'hV* Ab li a-

tioM jowl k'Mt, W . :\ ~.\ !■■•:» " l\'j".

\ .. ) 1 V «>. .in. K

(s>) ini:o. «•;. b. (o. i.it. t-5 b. w:\\ \\

Plcwd. J.'j. ;'. .r».".'. b. I :i/. (i.i.i.in'y <:"■. l»i"i
A ■•.•^j:i i.)i-sei-:.t.il. Ilr Tnil.3t.l'r. 1'r.iTo*:.
:.2 I!**. • Sei.-b j = .u j; li ".' ;». Ui . ^:a.'l^l;•!^ 0v
{) C«» KiJ. b.
2s

«?]

STATE TRIALS, G James I. 1G08.— Vtc Case qfthe Postnati.

[62S

and the son, to cover the treason hatched
in their heart*, invented this damnable and
dunmt'd opinion, that homage and oath of lige-
ance was more by reason or the kind's crown
(that is, of his politic capacity) than by reason
of the person of the kinir, upon which opinion
they inferred cxecr:.b;e mid detotable conse-
quences. 1. if the kini; <i'» not demean himself
by icason in the »'ut:t. of his ciown, his lieges
be bound bv oath lo remote the kintr. 2. i^ec-
io" that tlie km l: could not be reformed by
sun of law. that oui:ht to be done bv the sword.*
3. That 1ji> liege* be b'»inul to govern in aid of |
linn, and in default of him. All which were
condemned by two parliaments ; one in the
leLn of Edw. Q9 cltd Exi'dum Hugouis le
S| eiiCt-r, and the other in aim. 1. Edw. 3. c. 1.
Bract on, lib. 2. De Atvjuirendo Kerum Domi-
nio, c. ','d. f. 55, >ailh thus ' im cniin corona
' reui* fncirc jusiiti.mi ct judic*, et lenere pa-
' ceii), et sine <mihi> corona consi^ieie mm po-
' t<.st ntc tenu'i'. li«;i'.»-nioiii autem jura aive

* juris iictiones ad persouas veltenentcuta trai;s-
4 ferri lion potcruut, ntc a privatfi persona pos-
' sulcri, nee usus nee executio juris, ni^i hoc
' datum fuit ei desuper, sicut jurisdictio dele-

* gut a d( lcgRii non potent quin ordinariu re-

* ma neat cum ipso regc.' Et lib. 3. X)c Actioui-
bu*, cap. 9. fol. 107. * separare ante in debet
4 rex, cum sit Dei vicariua in terra, jus ah in-
' juriii, requum ab iniquo, et omues sibi sol jecti

* honeste vivant, et qaod nulla* aliuni h'jdat, ei
' quod unicuique quod siiiim iueiit recta con-
' trihutione reddatur.' Jn respect whereof one
.v.itl:. that * corona est quasi cor orunns. cujur>
4 oru.imcuta sunt mi.ioricordia et justitia.' Ami
thcicfore a kind's tpiwn is an hieroglyphic of
the la.vs, where ju>iii", \c. ir» administered;
lor so saith P. Val. I. -11. p. -100. * i:oionain

1 dicimus lc»;in judicium fM', propter* a quod
' ccrlii est \inculi*. c.omplicata, cuibus \ \\:\ nos-

* t;a \eluti ic!ii;at:i ci/ercrtur.* • Thereiore if
V'lii take that which is v;:;ui:':(d by the crown.
that i«, to do j'otire and judgment, to i:iaiiiia./:u
the peace of the laud. CxC to separate iL-ht
from wrong, and the ii/H-d from the ill ; t.vit U
to be under-f'Hid of th.'i Cdpi.fity of ti.v Lin;/,
1 1 . r * in rci veiit:itc' hath cacaiciiv, and is
ador ed and cud;:- d v. it li cudowiui nt.« : s we'!
of in- :»'iul, as of the bwdv and thercb'-' able
to d.» justice and ju. lament according in rijiht
and cqn.iy, «u:.l to maintain the peace, cv.c.
and to find out and decern the truth, and cot.
of the invisible and immortal capacity tin:
hath n>t yvv\\ endowment*; for of itself it hath
neither soul nor h »dy. And where diveis Ikm'io
iiiid acts of parliament speak ol the li;-;cancc of
England, as 31 Edw. 3. lit. (.Y.Hiniiie .ri. <\'> Ed.
3. 2. 13 Edw. 3. tit. Brief (i?7. ;J.i Edw. 3,
fctat. l)v Xatis Ultra Marc ; iill the-e and other
speikiiiLr briefly in a vul-i.u* iirinner, for . i)
' looiiendum ut vu!r*us' a:»ii u-jt ploadin:', f.-i

* Fry ills Novereiiin Power of Parliament,

2 Part, "p. 43. Cro. Am. <M.

(i) 3 Keb. 2(J. Cait. i;U '2 Holl. Rep. 23l>.
Het. 101. 4 Co. -1G. b.

1 scntiendum ut docti/ are to be understood of
the ligeancc due by the people of England to
the king ; for no man will atiinn, that England
itself, taking it fur the continent thereof, dotb
owe any liiieance or faith, or that liny faith or
ligeance should be duo to it ; but it manifestly
appeareth, that the liiieance or failh of the
subject is proprium quarto modo to the king,
vmm, soli, it s< viper. And oftentimes in the
reports of our book-cases, and in acts of par-
liament also, the crown or kingdom is taken
for the king himself, as in Fiuh. Xafrur.
lirev. ful. u. Tenure in capite is a tenure
of the crown, and is a seigniory in gross,
that is of the pen-on of the king : and so
is 30 Hen. 8. Dyer fol. 44, 45, a tenure in
chief, as of the ciown, is merely a tenure of
the person of the kini;, and therewith ugrceth
•20 Ilcn. fi. tit. Tenure, Br. Go. The statute of
4 Hen. 5. cap. ultimo, gave priors aliens,
which were conventual to the king and his
heir?, by which gift saith 34 Hen. 6. 34. the
same were annexed to the crown. And in the
said act of «2j Edw. 3. whereas it is said in the
beginning, within the liiieance of England, it is
twice afterward said in the same act, whhin
the ligcstnce of the kinp, and yet all or.e ligc-
ance due to the king. . So in 4J Edw. 3 fol. 2.
whue it i^ first said, the ligcunce of England,
it i» afterwards in the same case called, the
ligrance of the king ; wherein though they
used several manner and phrases of speech, yet
they intended one and the same ligeauce. So
in our u^ual commission of Assi-.e, of Gaol-
Delivery, of Over and Terminer, of the peace,
kc. power i«» given tu execute justice, ' -ocuu-
' dum leLxm et ccmsuetudinem regoi noMri
' Ai.l'.kv V and yet LiltUton, lib. 2. in hi*
chapter of \"iih-nage, f-d. -»3. in disablini* of a
man that is attainted in a Piemunire, saith, that
the same i^ the king's law ; and so dotb the
Ut !■!■»: o»* in the writ of ad jura rigid st\lt ti;e
s:.u:e.

Tlie rci'-on? and causes, wherefore by tl^e
poli; , i.-f ii,i- liiw i he K'w.'i h a Luidy politic, ara
thr» .-, . /. 1. CiM:-u Maje-tati>, '2. Causa Ne-
ce:.-i..L:i». .':c.i 3. (V.ii.<a l.'lilitatis. tirst, Cau-
s-. .\i;«!*. >i.:t:'--. tl;.* ki«-» cmnot ^ive or take hut
by ii::.:.?'. r of n-cvird lor the dignity of his pei-
■•):i. Sj c.i'llv, Ciiu-.i. Xeee^'-iiatis, as to avoid
tl .* (n. ) i-unitidcr c f him that hath rinht to the
crown, as it fippcaie'Ji in 1 lieu. 7, 4. lest in
the interim ;!-.i ;; should be an (I) iiilerregnum,
v. 1)k h the la;. wi!l:;-»t sufler. Also bv force
of this politic i.ap.icity, th>»u«:h the (m) king he
Vfithiu atje. v< : nu-.v lie make h-.iscs and other
grants, aiifl t:..* y.\ruv. «hal! bind him ; otherwise
his re\euue .kii.-udd decay, mid the king should
not be able to reward service, cvc. Lastly,

(k ) Ctr. Lit. 10. a. Hacon'- H. 7. fo. 3, 9.
Eitz. !»«rl. 2. Ur. Pari. 37, 10."». Plowd. '238. b.

(I) 1 V»'. cc M. cap. l.stct. 10. Co. Lit.
43. a.

(';,.) o Co. C7. a. 1. Uulh 7C3. Plowd. 213.
a. 'J3H. '.'Cl.rt. roi. b. •ZC Ass. .Vs. liu. Entart
15. Hr. Aire It.

C89]

STATE TRIALS, 6 James I. 1608.— The Case of the Vostnati.

[630 ,

Causa Utilitatis, as when lands awl possessions
descend from his collateral ancestors, being
■objects, as from the carl of March, &c. to the
king, how is the king seized of the same injure
connut, in his politic capacity.; for which cause
the same shall go wirh the crown ; [Co. L't.
13. b. See Treby's argument in the Quo War-
ranto.] and therefore, albeit queen Klizabeih
was otthe hali-blood to queen Mary, yet she
id her body politic enjoyed all those fee-simple
liads, as by the law she ou&rht, and no collare-
nl cousin of the whole blood to queen Mary
oaglit to have the same. And these are the,
causes wherefore by the policy of the law the
king is made a body politic : so ::s fur rhf«t'
special purposes the law makes hiin a body
politic, immortal and invisible, whereunto our
pgeaoce cannot appertain. But to conclude
this point, our ligeance is to our natural liciie
sovereign, descended of the blood royal of the
kings of this realm. And thus much of the
first general part dedigfMntia.

Now followed) the second part, de Igibu*,
wherein these parts were considered : first, that
the ligeance or faith of the subject is due unto
the king by the law of nature : secondly, that
the law of nature is part of the law of England :
thirdly, that the law of nature was before any
indicia! or municipal law : fourthly, that the
la* of nature is immutable.

Tbe law of nature is that which God at the
time of creation of the nature of man in fused
mto bis heart, for his preservation and direc-
tion; and this is lex atcrna, the moral law,
called alio the law of nature. [Wing's Max.
l.Co. Lit. 11. h. posr. M. b.l And by this
law, written with the finder of God in the heart
of man, were the people of God a long time go-
verned, before the law was written by Moses,
•ho was the first reporter or writer of law in
the world. The apostle in Romans c. ii. saith,
'cum enim gentes, qua: legem non habent, na-
'turaliter ea qua? legis sunt faciunt.' And this
» within that command of the moral law, * ho-
1 flora pat rem,' which doubtless doth extend to
mm that is • pater patrix.' And the apostle
tithh, ' omni> aniinu pntestatihns sublimiorihus
'wbdita sit.' And these be the words of the
P*at dirinc, ' hoc Dcus in sacris scripturis
'jabtt, hue lex nature dictat, tit quilibet suhdi-
ta obediat supcriori.' And Aristotle, na-
ture** secretary, lib. ;>. /Kthic. saith, that 'jus
natural** est, quod apod onirics homines ean-
d*m habet pureutiaiu.' And herewith doth
■Rtte Brncton, lib. 1. cap. 5. and Fortescue,
**?. 8, 12, 13, and 10, Doctor and Student,
**p. 2, and 1. [Justinian Inst. lib. 1. cap. 2.]
And the reason hereof is, for that God and na-
,u"* Is one to all, ami therefore the law of God
a,ul nature is one to all. Hy this law of nature is
•J* fault, ligeance, and obedience of the subject
f#0* to hi* sovereign or superior. And Aristotle
- -'oliiicnnini pro\cth, thai t > command and to
°"*y is of nature, and that magistracy is of na-
Jwe: for whatsoever is necessary and profitn-
*[* for the preservation of the society of man is
■^ by the law of nature; but ma cist racy and

government are necessary and profitable for the
preservation of the society oi man ; therefore
magistracy and government are of nature.
And herewith accordeth Tully, lib. 3. de Lcgi-
bus, '.sine imperii nee domus ulla, nee civitH?,
* nee gens, m-c hominum univerMim genus
1 stare, nee ip»e denique mundus potest.' Tins
law of nature, which indeed i* the eternal law
of the Creator, infused into the heart of tie
creature at the time of his creation, was 2,000
years before any laws written, and before any
judicial or municipal laws. And certain it is,
that before judicial or municipal laws were
made, kings did decide causes according to na-
tural equity, and were not tied to any rule or
formality of law, but did - dare jura.' And
this appeareth by Forte-cue, cap. l'J and 13,
and by Virgil that philosophical poet, 7 /Kucid.

' Hoe Priami gest-.imc-u erat, cum jura vucatis
' More daret populis.'

and oth &ncid.

' Gaudet regno Troj-intw Accstes

4 Indicitpie forum el patritnis dat jura \ oca? is.'

And Pomponius, lib. 2, cap. de Originc
Juris, afiirmeih, that in Tarquiiiius Niper-lui*.**
time there was no civil law written, and that
1'apirius reduced ctrtain observations into
writing, which was called Jus Civile i'apiria-
num. Now the reasou wherefore laws were
made and published, appeareth in Forte>cne,
cap. 13, and in Tully, lib. 2, Oificinruui: ' at

* cum jus a'quabile ah uno viro homines non

• con*»equercntur, inienti sunt leges/ Now it
appeareth by demonstrative reason, that li-
geance, faith, and ooedit nee of the subject to
fie .sovereign, wa-. l:elorc any municipal or ju-
dicial laws. 1. For that government and sub-
jection were Ions before any municipal or ju-
dicial laws. 2. For that it had been in vain
to have prescribed laws to any, but to such as
owed obedience, faith, and ligeance before, in
rcpeet whereof thev were bound to obey and
ol serve them : *" frustra enim frrunttir leccs
4 nisi stihdiris et obedientibus/ Seeing then
that faith, obe hence, and ligeance, are due by
the law of nature, it followcth that the same
cannot be changed or taken away ; for albeit
judicial or municipal laws have inflicted and
imposed in several places, or at several time-,
divers and several punishments and penalties,
for breach or not observance of the law of na-
ture, ( for th it law only consisted in command-
ing or prohibiting, without any certain punish-
ment or penalty) yet the very law of nature it-
self, never was nor could be (a) altered or
chMiii'cd. And therefore it i-; certainly tru< ,
that (b) * jur.i naturalin sunt immutahiha.'
And herewith :i-r4:eth Bract ok. lib. 1, cap. 5,
and Doctor and .S ucL*ut, cap. ."> and 6. And
this appeareth plainly and plentifully in our
books.

If a man hath a ward bv reason of a *eig-
niority, and is outlawed, he forfeited h the ward*

(a) Dr. 6: Stud. 4. a. wta 12. b.
\b) Cart. 130.

631]

STATE TRIALS, 0 James I. 1G0.S— 77/e Case qfthe Postaati.

[632

£ii:ji l«. t!;C l.ing : bui it* a man liutli the ward-
sh.p in lii'. tiiMi >-,,i i>,- daughter, v. liu.ii is iii*
heir ;/ ;j -..elit. :ii. ! I- outlawed, he doth not (c)
lor. .: i:... ...i.iiship ; l'.,r :;-.i*;ti»- Js'.lli aiiiiL-xcd

ii i«» .■ ■ ;>. /in:i i-i :!•.• ::.:ii-. r, : ii nppe<»ivtlt
l:i !•■! -:. «. , ;■.":. b. * J'. hi. in;.. i-j\ n.ii.l u bono

* palie r.: ■: ;t ; ii pairia ditv- r a putre, mill
' Imiit.-i c'ljii.iii'iiiciii [i^iii'in. oui e>i pattr pa-

* Iri.p.'

made anno 5 F.li/. cap. 1, yet the king might
protect j. rnJ pardon i.im. [B. N. C. 53. Uo.
J. it. KIO. a. 2. Rulstr. 299. Cawlv .46, 47. Cu.
I jr. 12o. 1).] A mun outlawed is out of the
!•• r.vtit of the municipal law ; fur so saith l*itz.
N . 15. irii. a. • utlezutus est quasi extra legem
1 |iu>:t'.i.« :" and lhact. 1. 3. Tract. 2. C. 11,
sairli. lis a * i.v.» ut »j.-rit lupiuum ;* jet i» he not

hi r. e >aaic manner, « irrin-> et to.- ] out either of J. is nai-jral li^eance, or of tl.s
* miiK" roujuuetin e>r de jure natnra*/ :i> ■ kii*i;\» naturl \-w\* ction; lor neither of tl)Ciii
Lr.iL-:>>!) in t i it- s.uue i.oo'< an I chapter, mid ; is tied to municipal laws, but is due by the hiw
St. G« riuin in hi> hook ut" the Di.ctor and Stu- ' of nature, whii n, as Ir.itli been said, was long
dem, ci]) ."), do hold. Now if he, that i> at- ! before any judicial or municipal laws. And
tainted ot tua^oa or fci.jny, he *riain by one , therefore if a limn were outlawed Tor felony,
that hath no aiilhontv, or executed by him i yet was he within the king's natural p roue lion,
that hath authority. 1ml pursiieth not hi> war- I for no man but the sheritf could execute him,
ram, in this ca-e i,U e.Uh it son can have no as ii is adjudged in 2 lib. As*, pi. 3. [Br.

appeal, for be must lirin- his appeal as heir,
winch bem^ r.r jiror'thtne //<>//////i.s\ he loseth it

Connie 67.] Kvciy subject is. by Ins natural
liceancc bound to obey and serve his sovereign,

by the aiuinder of hi* father; [Q.] but his i &e. It is enacted by the parliament of 23 11.
(d) wi-e, if any he have, «di dl have an appeal, i 6, c. 8, that no man shall serve the king as
btcnu-c the is to have her appeal as wife, which J shenllof any county above one year, and that,
fhc rcmaim th notwithstanding the n'tainder, notwithj»t.andi:)i: any clause of non olntunte to
iK'cau-c ' maris ( t ilrmiuuj CMi!|UiK'tio< is < de the contrary, that is to say, notwithstanding
• jure n.iiiira',' and there ore (it bein^ to be | that the kinj: should expressly dispense uitli
inttivl- ! of true and riirht uiutiimonyj is in- the said ^tatute. [I'iowd. 60'2. b. 2 II. 7. G,

b. Hr. patent-* 109. 12 Co. lb*.] liowbeit it i*
agreed in 2 II. 7, that against tne express pur-
view of that act, the kin;; may by a special non
obsti'ntc dispense with that act, for that the
act could not bar the king of the service of his
subject, which the law* ut' nature did give unto
him. JW these and many other ca^et that
miiiht be cited out of our books, it appearcth,
how plentiful the authorities of our laws be in
this matter (dd). Wherefore to roiicluili* this
p >int (and to exclude all thai hath been or
could be objected a^am-ji it) if the obtdience
and lii^i'iii e of «he Mi.-jict l«> h»s soMi-cii;n be
due by tin* law of iiaiurr. if that, law be paicel
of the 1'iws, ;is will td" lai^land as of all other
njiion^, an I i« iuiiuutable, and that l'os:nati

fii«-i.'ii;.iic ; and tl.i?. is \ n.ved by the botik in
i'».i II. ii, ,'jf. .N> if theri1 be m"ti.t.-r and
dm.!. i- r, slid ii: ■■ d.iM^iherisatt-.intedofleloMy,
i.«o\v c:i!.n »' ^!l:' hi' i-rir to her mother tor the
caii-.i- a! '..»■. mm I ; mt ait-r her ntt liiuler, if she
kiil ii r ni/the.-, «l:s is parricide and petit
trcaoi'ii; i*'!.- %\-i •*]-,<• n-maineth lar dauuliler,
I'-" tl.it is oi hi-.ure; and j.erewith apreetii
21 I1'.. r>, IT. b. If a man be attainted of tr-
Liny or tr. :i.-n:), 1„» b*uli !•» t the kin^s Itpal
J r.-.i -..i.iion. i-ir iie i^thuxliy iilit-riy ii< .dded t(»
bite :i : i v a(.i:.:i real or i». r^iii.d fwliich i> a
j'.i--. -r th-.u-iii'y i!ian an alien in l«:.;:ue h:\th)
a:i I wl Mich a | trsoii >o attainted hrith iiol
In-t ;..::t |ii'i,"'.-i !;u:i v.iiali bv the law of it iturc
i- :'i-: :* I • ti.i« k: ■._, foi" thai \% l iudi lelulis (t
* i. ;:r.;l ■liii:.-,' and t!ie;eibr.' ;::»• kin^ may j»ro-
ti • •; : -1 partii'ii him, and if ai;-- 'pan kdl hi:u

[i.e. m"S« oih.nd,] aod we of 1 airland are moled

hv t^irth.-riirLt in ohci.i-uce am) biieance. which

tvsrn-.i.it warran.t-, he shall hi- p!iin?he.! by the \> the- true cause of n ..ural -.ubiection, by the

law a-» a iii;iu»!:;\.'r, end il-.en :i".;lo accordclii 'law of nature [(}.]: jt fo!i>iwL-th, that Calvin

4 1. I. J, [(.';..■, y ir. iJ lu.-t. i jij.j and 'Jj ii. ti. the piaintiu b;'*.n^ hmn iiinier one Stance to

LI . '2 A-?s. pi. :i. i)\- the sat 'He cf 2 > l.'al. 3, j one kiiiU. cam. (it be an alt n bom. And there

cap. 2'J, a uuin attauned in a rri'-an-nire, is is ereul reason, that thu law of natme »bould

by express word* out of lie kiu^V pioteciii.n direct this c;..->»*, v.i.esrin five n:iU.ral opemtiuii^

iUv; and yet tl.i* e\U-:i -h t!\ o:dy V< » lepn are remarkable: 1. the ki::u h^tli tins iniwn of

RASit uppcareth by l.ii:!( ion, tm. 1.), Kiidand by b:j?]1-rii.-!.i, l.en-rf, i.iturally pro-

rliament could not t;i!ie away th.iL created of tiie i-!<.od royal of ih:s realm: 2.

... which the law of nature giieth uiii-j i'alvin tiie pl.ii:r:fi" natcrah/id bv piorreatim

j and therefore n. twjth^iaiiilint; ib:*t ' and birth-iijit, sir.-.'e :he orareiit «»l the cr.iwit

le kin^ may prottct 'and pardon him

tfih by that statute it was fori!:-, r

j that it should be dour with him r.s

i enemy, by which wtrd> any man miiht

o fcueli a person fas it "is hidden m

bC Coron. Jjr. 107.) ui.til the statute

1°^" 3« •' 7 Co' 12' h- Co- Lit- iU- b-
V. A^r" r°rfeit 70- Flowd. !*91. a.
liCuic, alnst. 2:i4.

■~ ^r- **• «••■ 35 H. 6. 58. a. Br.
- Ml. ttU, Cur. 21. a. lust. 215.

of i-'.nsluiid ; ;». ii^.a^.-c aad oi -c hence of the
niihicct to liu- *i:-. erri'jn, due bv the law of na-
tuiv: -1. ju'otii rioti ati't L'lveiimieur due by the
\a\\ of natuie: .>. t'ds ca«e, 111 the op;iii<>n of
divc"8, was more donLt'id in the be»ii,n.ij^, but
the fuitlicr it proceeded, the cleat cr and btron-

(dd) In one of the note* to the new edition
of Coke upon Littleton, we have had occasion
to observe on this extravagant doctrine about
the Dispensing Tower. Co. Lit. lothcd. fol. 120.
a. noies 3 and 4. Editor.

033]

STATE TRIALS, 0 James I. 160S.— Tlte Case of the Poatnati.

[634

ger it grefr ; and therefore the doubt grew from

bume violent passion, uu:l not from any reason

grounded upon the law of nature, * quia quanto

• magis violentus inotus, qui lit contra naturam,

' tppropiuquat ad suum linem, tamo dcbiliores

•ettardiores sunt ejus motus ; sed naturnlis

1 motus, quanto uiagis apprnpinquat ad suum

1 finem, umto fortiores tt vclociorcs sunt ejus

( motus.' Hereby it nppeareth how weak the

objection grounded upon the rule of (e) ' quan-

'oo duo jura coucurrunt in utiA persona, &c.f

is : for tliat rule holdeth not in personal things,

that is when two persons tire necessarily and

ineriubly required by law, as in the case of an

alien born there is; nud therefore no man will

ay, that now the king of England can make

war or league with the kin;; of Scotland, ' et

1 sic de ca-teris :' and so in case of an alien

born, you must of necessity have two several lige-

ances to two several persons. And to conclude

this point concerning laws, ' uon adversutur

* dirersitas reguor' s>ed regnant' ; non patriarum,

1 sed patrum patiiai ' ; non coronarum, «ed co-

1 rouatorum ; non legum municipalium, sed

';egnum majestatum.' And therefore thus

were directly and clenrlv am>wcred as well the

objections drawn from the severalty of the

kingdoms, seeing there is but one head of both,

md the Postnaii and us? joined in ligeancc to that

otoe head, which is * copula et tanquam oculu*'

of this case ; as also the distinction of the laws,

*eeiug that ligcance of the subjects of both

kingdoms, is duo to their sovereign by one law,

awl that is the law of nature.

For die third, it is first to be understood, that
« the law hatli wrought four unions, so the
law doth still make four separations. The
first union is of both kingdom* under one na-
tural liege sovereign king, and so acknowledged
ty die act^of parliament of recognition. The
2nd is an union of ligeance and obedience of
the subjects of both kingdom?, due by the law
W nature to their sovereign: and tnis union
doth suffice to rule and over-rule the case in
^uution ; and this in substance is but a unit-
ing of the hearts of the Mibjects of both king-
doms one to another, under one head and sove-
•fign. file 3rd union i-> un union of protec-
tion of both kingdom*, equally belonging to the
wbjetts of either of the in: and therefore the
**o first arguments or objections drawn from
*»o supposed several ligcatiCLS were fallacious,
w they did diyunftrre conjungenda. The 4th
yinn and conji.nclion is of the three lions of
England and tb.it one of Scotland united and
ty^rttred in one escutcheon.

Concerning the separations yet remaining :
1. England and Scotland remain several and
datiact kingdoms. 2. They are governed i,y
J«eral judicial or municipal laws. 3. They
"*»e several distinct and separate parliaments.
tl^T^ kingdom hath several nobilities: for
■*•* a Postuatus in Scotland, or any of his
Plenty, be the heir of a nobleman of Scot-

land, and by.liis birth is legitimated in Eng-
land, yet he is none of the (a) peers or nobility
of England ; for his natural ligeancc and obe-
dience, due by the law of nature, inaketh him
a subject and no alien within England : but
that subjection uiaketh him not noble within
England, tor that nobility had his original by
the king's creation, and not of nature. And
this is manifested by express authorities,
grounded upon excellent reasons in our books.
If a baron, viscount, earl, marquis, or duke of
England, bring any action real or personal, and
the defendant pleadeth in abatement of the
writ, that he is no baron, viscount, earl, &c.
and thereupon the demandant or plantilf taketli
issue; this is^ue shall not he tried by jury, but
by the fbj record of parliament, whether he or
his ancestor, whose heir he is, were called to
serve there as a peer, and one of the nobility
of the realm. And so are our books adjudged
in 22 Asi. 24. 48 Edw. 3. 30. 35 11. 6. 40.
20 Eliz. Dyer 360. Vide in the sixth part of
my Reports, in the countess of Rutland's case.
So as the man, that is not dejure a peer, or one
of the nobility, to serve in the upper house of
the parliament of England, is not in the lcgdl
proceedings of law accounted noble wkhin
England. And therefore if a countee of France
or >j>ain or any oilier foreign kingdom, should
come into England, he should not here sue, or
be sued by the name of countee, &c. for that
he is none of the nobles that are members of
the upper house of the parliament of England;
and herewith Rgrcc the book-cases oi'fej 20
Ed. 4, 6. a b. and 11 Kd. 3, tit. Hie. 473, like
law it is, and for the same reason, of an earl or
baron of Inland, he i* not any peer, or of the
nobility of this realm ; and herewith agreeth
the book in ') II. 2. tit. (d) Proces. pi. uhiui.
where in an action of debt procis-f of outlaw rj
was awarded uguiii't the earl of Ormond in
Ireland; which oti^ht n->t to have been, if ho
had been noble here. Vide Dyer (c J 'JO Eliz.
3G0.

Hut yet there is a diversity in our books
worthy of observation, for the highest and low-
est dignities are universal ; for if a king of a
foreign nation come into England, by the leave
of the king of this realm, as it ou^htto be, in this
case he shall sue and be sued by the name of a
king ; and herewith agreeth 1 1 l;. 3, tit. Br. (f)
473, where the case was, that Alice, which was
the wile of R. de <). brought a writ of dower
against John earl of Richmond, and the writ
was ' praeip. Johaun. comiti Richmond]* cus-
1 todi tcrr' et ha-redis* of William the Son of
K. de <). th'j tenant pleaded tb.it he is duke of

U) KUwmcre's l»ostuat. c. 88. 4 Co. 118.
* «wj 209. Antca Moor 793, 834.

(u) Dyer 360. pi. 6. 9. Co. 117. jl. b. 2
lust. itt.

(bj Co. Lit. 16. b. 6 Co. 53. a. 9 Co. 31.
a. 49. a. 12 Co. 70, 94. 95. 2 lust. 50. 2 Roll.
575. Moor 767.

(c) 9 Co. 117. b. Br. Nosmede Dignity 49.

(d) 9 Co. 117. b. Fitz. Proc. 221.

( e) Dy. 360. pi. 0. Co. Lit. 261. h.

(f) Moor 803. 9 Co. 117. b. postea .

635]

STATE TRIALS, C James I. IG08.— lite Case ofifo Pastnati.

[636

Britain, not named duke, judgment of the
wrk ? But it is ruled, that the writ was good,
for that the dukedom of Britain was not within
the realm of England. But there it is said,
that if a man bring a writ against Kdward ( #)
Baliol, aud name him not king of Scotland, the
writ shall abate for the cause aforesaid. And
hereof there is a notable precedent in Fleta,
lib. 2. cap. 3. § 9. where treating of the juris-
diction of the king's court of Marshalsea, it is
said, ' et hsc omnia ex officio suo licitc facere

• potent (ss. seneschal' aul* hopitii regis) non
' obstante alicujus libertate, etiam in alieno
' regno, dum tamen reus in hospitio regis poterit
' inveniri ; secundum quod contigit Paris, anno
4 14 Ed. 1. de Engeiraino de Nogent capto in
' hospitio regis Angl', ipso rege tunc apud Pari-
' siam existente, cum discis argenti furatis re-
' center super facto, rege Franc' tunc presente ;

• et unde licet curia regis Franc* de praid' latone

* per castellanum Pans, petita fuent, habitis et
' inde tractatibus in consilio regis Franc', tan-
' dem consideratum fuit, quod rex Angl ilia

* regia prerogative, et hospitii sui privilegio

• uteretur, et gauderet ; qur, coram Roberto
' Fitz- John niilite tuoc hospitii regis Angl1 se-
' neschallo de latrocinio convictus, per consi-

* demtioncm ejus cur* fuit (hj suspensus in pa-
' tibulo sancti Germani de pratis.' Which
prove th that though the king be in a foreign
kingdom, yet he is judged in law a king there.
The other part of the said diversity is proved
by the book-case in 90 (i) E. 4, fol. 6. a. b.
where in a writ of debt brought by sir J.
Douglas, knight, against Elizabeth Molibrd, the
defendant demanded judgment of the writ, for
that the plaintiff was an earl of Scotland, but
not of England ; and that our sovereign lord
the king had granted unto him safe conduct,
not named by his name of dignity, judgment of
the writ, &c. And there justice Littleton
giveth the rule. The plaintiff, saith he, is an
earl in Scotland, but not in England ; and if
our sovereign lord the kiug grant to a duke of
France a safe conduct to merchandize, and
enter into his realm, if the duke comcth and
bringeth merchandize into this land, and is to
sue an action here, he ought not to name him-
self duke, for he is not a duke in this land, but
only in France. And these he the very words
of that book-case; cut of which I collect three
things. First, that the plaintiff was named by
the name of a knight, wheresoever he received
that degree of dignity. Vide (k) 7 II. 6, 14 b.
accord. 2. That an carl of another kingdom
or nation is no earl, to ho so named in legal
proceedings, within this' realm : and herewith
agrecth the book of (I) 11 Ed. 3, the earl of
Richmond's case before recited. 3. That albeit
the king by his letters patent of safe conduct
do name him duke, yet that appellation mak-

(i>) Moor 803. ( h) Moor 798, 799.
(i) 9 Co. 117. b. Br. Nosme de Dignity, 49.
(k) Br. Brief 159. Fitz. Brief 35.
(I) 11 E. S. Fitz. Brief 473. Antea 15. b.
Moor 803. 9 Co. 117. b.

eth him no duke, to sue or to be sued by that
name within England : so as the law iu the*e
points, apparent in our books, being observed,
and rightly understood, it appeareth how cause-
less their fear was, that the adjudging of the
plaintiff to be no alien should make a confusion
of the nobilities of either kingdom.

Now are we in order come to tlie fourth noun
(which is the fourth general part) Alienigena ;
wherein six things did full into consideration.
1. Who was Alienigena, an alien born by the
laws of England. 2. How many kinds of
aliens born there were. 3. What incidents be-
longed to an alien born. 4. The reason why
an alien is not capable of inheritance or free-
hold within England. 5. Examples, resolu-
tions, and judgments reported in our books in
all successions of ages, proving the plaintiff to
be no alien. 6. Demonstrative conclusions
upon the premises, approving the same.

1. An alien is a subject that is born out of
the ligeanceof the king, and under the ligeance
of another, aud can have no real or personal
action for or concerning land ; but in every
such action the tenant or defendant may plead,
that he was born in such a country which is not
within the ligeance of the king, and demand
judgment if he shall be answered. And this Is
in effect the description which Lit. himself
maketh, lib. 2. cap. 14. [Co. Lit. 128. b. 129,
a. 4. Inst. 152. Lit. sect. 198.] Villen. fol.
43. ' Alienigena est aliens gentis seu alienae li-
' geantia;, qui etiam dicitur peregrin us, alienus,
1 exoticus, exrrancus, &c. Extraneus est subdi-
' tus, qui extra terrain, i. e. potcstatem regis, .
' natus est/ And the usual aud right pleading
of an alien born doth livelily and truly describe
and express what he is. And therein two
tilings arc to be observed. First, that the most
usual and best pleading in this case is both ex-
clusive and inclusive, viz. ' extra ligeantiam
' domini reikis, &c. et infra ligeantiam alterius
' regis/ us it appeareth in (m) 9 Ed. 4, 7. b.
Book of Entries, fol. 244, &c. which cannot
possibly be pleaded iu this case for two causes.
1. For that one king is sovereign of both king-
doms. 2. One ligeance is due by both to one
sovereign, and in case of an alien there must of
necessity be several kings and several ligeances.
Secondly, no pleading was ever ' extra reg-
' iinm,* or ' extra legem,' which are circum-
scribed to place; but « extialigeaniiam,' whicli
(as it bath been said) is not local or tied to any
place.

It appeareth by Bracton, lib. 3. tract. 2 c.
15. fol. 134, that (n) Canutus the Dani>h king,
having settled himself in this kingdom in peace,
kept notwithstanding (for the better continu-
ance thereof) great armies uithin this realm.
The peers ana nobles of England distasting this
government by anns aud armies, • odiums ac-
' cipitrem quia semper vivit in arm is/ wisely
and politicly persuaded the kin?, that they
would provide for the safety of him and his
people, and yet his armies carrying with them

(m) Antea 5. a. (n) Stanf. cor. 17. f.

687]

STATE TRIALS, 0 James I. 1G0S— 77* Case tfthc Postriati.

[635

many inconveniences should be withdrawn ;
and therefore o tiered, chut die)* would consent
to a law, that whosoever should kill an nlien,
and be apprehended, and could not acquit hitn-
tclf, he should be subject to justice : but ii" the
niauslaver lied, and could not be taken, then the
fcmn where the roan was slain should forfeit 60
niuiks unto the king; aud if the town were
uot able to pay it, then the hundred should for-
feit and pay the same unto the kind's treasure;
^hereunto the kin*; assented. [Full. Ch. liist.

but (q) lands within this realm, or house.*, but
tor their necessary habitation only, alien (friends
canuot acquire, or get, nor maintain any action
real or personal, for any land or house, unless
the house be for their necessary habitation.
For if they should be disabled to acquire and
maintain these things, it were in effect to deny
unto them trade and trnilick, which is the lite
of etery h-land. But if this alien become an
enemy, as all iwiL'ii friend* may, then is he ut-
terly disabled t> maintain any action, or get
any thiiiLL within this realm. .And tlus is to be
understood of a temporary alien, that luhij; an
enemy, may be a friend, or being a friend may
be :»n em my. But a perpetual enemy, though
there be no wars bv lire and sword between

1. 1. 12.1 This law was penned * quicunque
'Occident Frnncigenam, &c.' not excluding
oilier aliens, but putting Francigena a French-
man for example:, that others must be like unto
him, in owing several ligcauce to a several so-
vereign, that i«, to he * extra ligeamiam regis them, cannot maintain any action, or get any
AagT,* and * infra ligeant in m aherius regis.' I thing uiihiu this re.ilm. All intidels arc in law
And it appears before out of Urncton and Fleta, , turpi tui (r) itwn.ci, j erpctnal enemies, for the
that both of (hem use the same example (in de- | law presumes not that they ui!l be converted,
uribiiit; of an alien) * ad udein rcj»is Francia-.' i thai being re wot a pottntia, a remote possihi*

And it was hoiden, that, except it could he
pn:\ed, that the patty slain was an F,ngli*h-
iikiii, that he should be taken for an alien ; and
thi* was called F.i:tle«Iicric, l';iglc*heria, that

lily, lor between them, as with the devils,
whose subjects they be, and the Christian, (here

i> perpet.ial hostility, and can be no (t) peace;

f>r as the apostle >aiih, 2 Cor. vi. 15. ' qua;
if, a proof that the pari y sL in was an En*ili-h- [ * uuteiu dsiventio ChrUti ad Belial, aut qua*
iu:iii. rilireupon ('aiuiii1*! pr'i>enily wiiiid:c-w * pars litlt-Ii cum intideli f* And the law saith,
lii» armies, and within a v.hde atter lost his * Juda;j( 'hiisiiauum nullum serriat mancipiuui
tri/wn, and rhe same was restored to his ritiht ' in his eniui cm cpinn Christus red en lit bias-
owner.) The said law of Knglesheric romi- , ' pl.emuin Christi inse:viiutisvinculis detincre/
f.urd until 14 Kd. :i, cap. -1, and then the same j Blister 2b"2. ' Infidelis sunt Chri>ti et Chris-
was by act of parliament ousted and abolished. ' * tiaiiorum inimici.' And herewith njjreeth the
So ainun^t the laws of William the iirsL, (pub- I book iu 1 2 II. *!. fol. 4. where it is holdcn that
li-htni by master Lambert, fol. 123.) l emtiis ' a pagan cann»t h:ivc or maintain any action at

• I'nuirigena' (there put, for example a?? before ' all. [Qra re]

i* said, to express what manner o[ pri>on Ali- And upon th:* «jround there i» a diversity be-
euivcuu khouid I e; ' qui tempore F.dvardi pio- tweeu a cuui.uent of a kingdom of a Christian

• pinqni n;>>tri fail partii-eps le«jian et cuiiMietu- j km*:, and the cmique^t of a kingdom of an in-
4 diiiiitu Angioma* (ihat is m;»i!e denizen) lidel ; for if a kin^ come to a Christian king-
1 quod dieuntad x-ot et ioi pcrsuU at secundum do: a by conquest, seeing that he hath ' vit«e et
•Je^em Angloriuu.' i * necis potcstatnn,' he may at hi* pleasure alter

Kvery man is either ii-.ie»ii*€nay an alien and change the laws of that kingdom, but until
born, or udnlUu$,\i subject born. Kvery a'ien he doth make an alteration of tho*e law*, the
is either a iricmi thai is in league, OvC or an \ ancient laws of that kingdom remain. [Day.
enemy that is in open war, &c. F.vciy alien 30. b, 3. Keb. -10'?. >alk. Ill, 412. 660.

iiiciuy is cither pro t*mpnrrt temporary for a
time, or ptr pit //;*<, perpcta;!, or spceialitrr per-
taiuux, nermittf d 4«:icci.dl\. Iverv subject is
cither, nut us, lorn, or (Zulus, «i\«jn or made:

and of the-e hrieilv in their oider. An abeu Ik; not oulv ;i«:niii-t Chri-tianiv, Lut against tl.c

friend, as at this time, a ( icrman, a Frenchman,
a Spaniard, &c. (all the kin;j^ and princes in
Christendom bein^ now ia league with our so-

Comb. 5.').] But if a Christian king shnr.ld
conquer a kiui^doin of an infidel, and brii.g
them under vi* tubjertiou, theie i]>so facto the
law* of the hiiiiicl are abrogated ; for that they

law of Ciod ::iid <>f n.it'ire, contained in the
])ccal'>i:ue : ai:d in that cn*>e, uiitil certain l»v\->
be c-->l;d'li'»hfd ajnor <:«-t them, the king by him-

vereigu ; but a Sc -t h:„'ii-«: a subject, cannot be self, ><!id Mich judges as he >htdl appoint, shall
lid to be a friend, nor Scotland to lie solum judue them i.nd l\v'.r cau-o uccordin«: to dm-

mmici) may by the common law haw, acquire.
uud net witliinthis realm, bv ^ift, trade, or other
lawful nieniit, any treasure, or (o! $ Is per-
sonal whatsoever, as w ell as an FmdMinian,
and may maintain any f/i) action l'»r the s:une :

(o) Co. Lit. 2. b.

(p) 1 Bul-»t. 134. Vol. 10R. Owen. 45. Co.
Lit. 129. b. 1. And. 25. Moor 431. 1 Kel .
tt}6. Cr. El. 1 12. 603. Cr. Car. 9. 4 Tn-t. 13 J.
Dy. 2. pi. 8. O Beul. 10. B. N. C. 373. Br.
Noa-ab'dity 02.

tnral equity, in such sort as kin^s in :n»i it-nt
tiuif; di.l with their kiiijidoms bif'ire anv cer-
tain municipid lav. •» wer** L'iven, as before hath
heen s:i"-l. ih:t if a ! .ng bath a kini;d«jm ly
title ci!" fit nce:!t, t'.nc -et uil; by the ! »ws of that
king-loin lie dotti inherit tl:e kingdom, he cun-
noi t halite th >-:o \uw< of himself, without con-
sent of parliHimm. Also if a kiu<^ hath a

(ti) I'oph. VA>. Co. Lit. 2 b. Dy. «>. pLO.
(r) Wini;. .V:«x. 10. Skin. 160."
(*) 1 Inst. IX,.

639]

STATE TRIALS, 0 James I. 1G08.— The Case qf the Postnati.

[640

Christian kingdom by conquest, as Henry 2,
had Ireland, alter John had given unto them,
being under his obedience and subjection, the
laws of England for the government of that
country, no succeeding king; could alter the
same without parliament. And in that case
while the realm of England and that of Ireland
were governed by several laws, any that was
born in Lit land was no alien to (he realm of
Km J and. In which precedent of Ireland three
things nre to be observed. 1. That then there
'had been two descents, one from Henry 2 to
Richard 1, and from Richard to John, before
the alteration of the laws. 2. That albeit Ire-
land was a distinct dominion, yet, the tide
thereof beini; by conquest, the same by judg-
ment of law miLiht by e\press words be bound
hy.a'ct of the pniiiasiunt of England. 3. That
nlbtit no reseivuti >u were in kins; John's Char-
ter, yet by judgment of law a writ of error did
lie in the KiiigVt Ik nch in England of an errone-
ous judgment in tli!1 Kind's Bench of Ireland.
TKebv. 202. pi. li». 4 Inst. 71. F. S. B. 2:?. d.
X'augh. 2u0. 201.] Fui tliemiorc, in the case
of a cunnncst of a Chris'.ian kingdom, as well
those that served m wars at the conquest, as
those that reuiuinc I at' home, for the safety and
peace of their oumrry, and other the ki;»g\
subjects, aswcli ,\ntcnati as Postnati, are capa-
ble of lands in the kingdom or country con-
que.el, and may unintriin any real action, and
have the like privilcgrs and benefits there, as
they may have in England.

Thetnird ki:id<»i'i:iu-tny is, inhniats pcruussus,
an eiuiny that co.ncth into the realm by tiic
kind's safc'C-uidiur, of which you may read in
the Krister, f«»l. *.>. IJ^n'% o£ Kntrie-*, ' ejc.c-
4 tit^ie firma?,' 7, :«3 11. 0. 2. b. <S:c. N'ow
what a subject born i?, nppc.ircth at Lirjr-"* by
tint which hith been ^ :l"i I ih ligia.Ui.i: [Co.
Lit. 129. a.] and >o ii:;e*M-e ./r tuhJ-tn </,/;>, of
a Donaison : for th.it is the ri^h.t is -.11110, so
C.iik'il, because bis it.iiiuiuiion i,- given unto
him ; for if von derive deni/en from a* ins my,

w r

out: bom within the obedient-.' or !i: -i/ance of
t'ie king, ibni such a t or ;!io:.I.{ lie u!i <»''■«• « iih
a natural-born Hibjcrt. And it ;ippc;«r< ''; 1 v-
fore out of the laws <»f IJn^ \V. 1, of w! j* anti-
quity the making of denizens b\ the L.:.^ of
Knih.nd hath been.

3. There be regularly f imle-s» it ho in special
cases) thrte incidents to a subject b u*n. [Kir.
Rep. 27.] 1. Thar the patents be un'Vi- the
actual obcdu'iice »f tiu* kins:. '*• TJ:at the
place of his birth be within the khg'^ dominion.
Ami 3. Tie t.me «»f h $ biit'-i i> r'lic!''* to be
con<i«ler«d ; for ho cmnot b»' a ^\\\>y rt born of
one ki.iizdoiM rhit v:vs born iiit-.l'. r l e !.■:;> "ixc
of a kin1/ of another kingdom, -..ibr-i' :.»*■.-; waids
oue kiu.-dom i!c?c ml to the kint.; of ti: • other.
1. Tor th.-- firs', a U termed a. t.ial n! elience,
because tho i^h the kiiic of En!*luiid hith abso-
lute right tj other U uj;<nn> nr dominions, as
France, Annitmn, N'.Tni.mdv, \r. yet seeing
the kin1.* is no; in actual po-wi-vsion th< reof, none
bom there since the crown of EmJ.md was out
of actual possession thereof, are subjects to the

king of England. 2. The place is observable,
but so as many times ligeance or obedience,
without any place within the king's dominions,
may make a subject born; but any place with-
in the king's dominions without obedience can
never produce a natural subject. And there-
fore if any of the king's ambassadors in foreign
nations have children there of their wives, being
English women, by the common laws of Eng-
land they are natural- l>orn subjects, and yet
they are born out of the kin^s dominions. [Cr.
Car. GUI. 002. March 91. Juik. Cent. 3.1 But
if enemies should come into uny of tlie king's
dominions, and surprise any castle or fort, and
possess the same by hostility, and hare issue
there, that i*suc is no subject to the king, though
he be born within his dominions; for that he
was not born under the king's ligeance or obe-
dience. But 3, tin: time of his (a) birth is of
the essence of a subject born ; for he cannot
be a subject to (he king of England, unless at
the time of his birth lie was under the li-ie-
mice and obedience of the king. And that
is the reason that Anrenati in Scotland (for that
at the time of their birth they were under the
ligeance and obedience of another kieg) are
aliens born, in respect of the time of their birth.

4. It folio. vet h next in course to set down
the Reasons, wherefore an alien born is not ca-
pable of inheritance within England; and that
he is not for three reasons. 1. The secrets of
the realm might thereby be discovered. 2. The
revenues of the realm (the sinews of war, and
ornament of peace) should be taken and enjoy-
ed bystrangeis born. 3. It should tend to* the
destruction of the realm. Which three reasons
do appear in the stature of 2 II. 5. csp. and 4
If. 5. cap. ultimo. [.>ee 2 II. -1. c. 7. ec c. 9.]
Hut it may be demanded, wherein di*th that
detraction consist. Whereunto it is answered :
lirsr, it tends to destruction tempore belli ; for
then strangers might fortify themselves in the
In-art of the realm, and be ready to set fire on
the common-wealth, as was excellently shadow-
( .1 by th" Trojan horse in Virgil's second book
of his .Eneid, where a very few men in the
heart of the city did more mischief in a few
hours, than ten thousand men without the walls
in leu years. Secondly tempore pads, for so
rvijir nvtny alhus born get a great part of the
inheritance" and freehold of the realm, whereof
there .*hould follow a fail ire of justice (the sup-
porter of the commonwealth), for that aliens
bom cannot be returned of juries (b) ibr the
trial of issues between the kiugaud the subject,
or between subject and subject. And for this
puipose, and many other, st t a Charter (worthy
of observation) of kiii;^ Ed. 3. written to pope
Clement, « datum upud Westm. 26. die Sept^
' aim. rej»ni nostri Francis: 4. regni vero An-
c {ili* 17.'

5. Now are w'e come to the examples, reso-
lutions, and judgments of former times : where*
in two thing-, are to bcohseived, First, how

(a) 2 Vent. 6. Vaugh. 28G.

(b) 10 Co. 104. a. Co. Lit. 150. b. Poph. 90.

641]

STATE TRIALS, G James I. IGOli.— The Case qf the Postnaii.

[642

ttnnv cases in our books do over-rule this case
iu question, ' for ubi (c) eadeni ratio ibi idem
'jus, at dc timilibus idem est judicium.' 2.
That for want of' an express text of law ' in
tenuiuis lerminantibus,' mid of examples and
precedent* in like cases (ns was objected by
wane), we are diiven to determine ihe ques-
tion b? natural reason: for it was said, 'si

* ccssit lei senpta, id custodiri oportc-t, quod

* moribus et coiisuctudine induct um est ; etsi
1 qua in re hoc defecerir, recurreudum est ad
' ration em/ Hut that reccivcth a threefold an-
swer. First, that there is no such rule iu the
common or civil law : but the true rule of the
civil law is, ' lex scripta si cesset, id custodiri
' nportet quod moribus et consuetudine induc-
'tnm est; ct si qua in re hoc defecerit, tunc
1 id quod pruximum et consequent* ei est; et si
'id Don appareat, tuueius, quo, urbs Uouiaua
' utitur, servari oportet. Secondly, if the said
imaginative rule be rightly and legally under-
stood, k may stand for truth: tor if you intend
rali© for the legal and profound reason of such,
ai by diligent study and lone; experience and
observation are so learned iu the laws of this
realm, as out of the reason of the same they
can rule the case in question, in that sense the
tiid rale is true ; but if it be intended of the
reason of the wisest man that profes^eth not the
lars of England, then (I say) the rule is absurd
and dangerous; iov(d) * cuiiibet in sua arte
'perito est credeudtim, et quod quisque (e)
' ooric in hoc se exerceat. Kt onmes prudcutes
1 ilia admittere solent, qua: probantur iis, qui
' in sua arte bene vcrsati sunt.' Arist. 1. Topico-
roai, cap. 6. Thirdly, there be multitudes of
examples, precedents, judgments, and resolu-
tions in the laws of England, the true and un-
strained reason whereof doth decide this ques-
tion. For example,

The dukedom of Acquitain, whereof Gascoin
was parcel, and the earldom of Poitiers mine to
Henry 2, by the marruge of Eleanor, daughter
and heir of William duke of Acquitain, and
carl of Poitiers, which descended to Rich. 1,
Hen. 3, Ed. 1, Ed. 2, Ed. 3, &c. In 27 lib.
(f) Aas. pi. 48. in one ense there appear two
judgments and one resolution to be given by
die judges of both benches in this case follow-
ing. The possessions of the prior of Chelsey
in the time of war were seised into the king s
hands, for that the prior was an alien born.
The prior by petition of right sued to the king ;
and the effect of his petition wus, that before
he became prior of Chelsey, he was prior of
Andorer: and whilst he was prior there, his
possessions of that priory were likewise seised
tor the same causi*, supposing that he was an
alien born ; whereupon he sued a former peti-
tion, and al ledge d that he was born in Goscoin

iC) Co. Lit. 10. a. 191. a. 832. a.
I'd) 4 Co. 89. ft. 5 Co. 7. a. Caudry's Case.
CnwlySl.Co. Uf. 1-25. m.

(€) 11 Co 10. h. 12 Co. 00. 13 Co. 12. Co.
lit. 125. a. 8. Co. 130. a.
(f) Moor 796,801.
YOU it.

within the ligeance of the king: which point
being put in issue, and found by jury to be
true, it was adjudged that he shun Id have re-
stitution of his po>sessions generally without
mentioning of advowsons. After which resti-
tutio^ one of the said advowsnns became void,
the prior presented, against whom the king
brought a quure wipedit wherein the king
was barred; and all this was contained in the
latter petition. And the book suith, that the
earl of Arundel, and sir Guy of R. came into
the court of Common Pleas, and demanded the
opinion of the judges of that court concerning
the said case, who resolved, that upon the
matter aforesaid the king had no right to seize.
In which case amongst many notable point?,
this one appeareth to We adjudged and resolved,
that a man born in Gascoin under the king's
lineage, was no alien born, as to luiuls and
possessions within i he realm of England, and
yet 1'jiglaud and Gascoin were, 1. Several
and distinct countries. 2. Inherited by several
and distinct titles. 3. Governed by several
and distinct municipal laws, a> it uppeireth
amongst the records in the Tower, Rot. Vase.
10. Ed. 1, num. 7. 4. Out of the extent of
the great seal of England, and the; jurindiction
of the chancery of England. 5. The like ob-
jection might be made for default of tri'.tl, as
hath been made against the plainiiu". And
where it was said that Gascoin was no king-
dom, and therefore it was not to be matched
to the case in hand, it was answered, that this
difference was without a diversity, as to the
ca?e in question? for if the pica in the case at
the bar be eoud, then without question the
prior had been an alien; for it mitiht have
been said (as it is in the case at the bar) that
he wa« born ' extra ligcanriam regis regni sui

* Atiglia*, et infra ligeaiitiam domiuii sui V»&-

* coiiia*,' and that they were several dominions,
and governed by several laws : but then such a
conceit was not hatched, that a kin*: having
several dominions should have several litre antes
of his subjects. Secondly, it was answered,
that Gascoin was sometime a kingdom, * and
likewise Milhin, Burgundy, Bavaria, Bretagne,
and others, were, and now aie become duke-
doms. Castile, Arrugon, Portugal, Barcelona,
&c. wero sometime enrldoms, afterwards duke-
doms, and now kingdoms. Bohemia and Po-
land were sometimes dukedoms, and now king-
doms; and (omitting many other, and coming
nearer home) Ireland was before 32 II. 15, a
lordship, and now is a kingdom, and yet the
king of Knuiand was as absolute a prince and
sovereign when he was lord of Ireland, as now,
when he is styled king of the same [Co. Lit. 7.
b.] 10 Ed. 3, 41. an exchange was made
between an Englishman and a Gahcoin, of lands
in Enpland and in Gascoin; cr%o the Gascoin
was no a!jen, for then had he not been capable
of lands in England. 1 H. 4. 1, the king brought

* Vascoiiia appellata fuit tempore Carol i
mngni regnum de Vascoiiia, Mo. tiUO. Yaugh.
300.

U T

G13]

STATE TRIALS, G James I. I GOB.— The Case of the Postnati.

[644

a writ of right of ward against one Sybil,
whose husband was exiled into Gascoin; tr«of
Gascoin is no parcel or member of England,

riage, and ronti:ined in the actual possession
of the kinj»s of England bv ten descents, viz.
from the first of llenrv 2, unto the 32nd of

for ' exiliuui est patriu? privatio, nuta!i« suli ! Henry (>, which w:is upon the very point of

* nmtatio, U-gum nativarum aniissio.' 4 E. 3,
10. b. the kinj; directed his writ out of Chan-
cery und'.T the great seal of England, to the
may)!' rt' (gj Iiiirdcaux (si cily in Gascuin),
th- ii being under the Line's obedience, to cer-
tify, whither one that was outlawed herein
England, was at, that lime in the king's service
under him in vbttqv.io rrris : whereby it r»p-
pcareth, that the ki:uV« writ did run into (las-
coin, for it is th-? tri.il tli.it the common law liath
appointed in that case. Ihit as to other rase**,
it is to be understood, thr.t there be two I-.iikU
of writ?, trevin nuuiJu.'oria it rtit.nliatui. it
On via nianda'oiia ct mm rc.h(:'i,i!ij. [\ mijji.
-l'.'J. 1 In»t. <Io6\ Moor iiOi.] I-n\:ia mr.tiifii-
tcria cl m;i<:dlit!i(i, a& writs ot rijihl, of forme-
d.m, c-:c. of del. r, tiv-pas", ov'c. and shortly, all
v. r.i.i ival and ptrsonal, whereby t lie paitv
wiongcd i-> t> recover s.'aiirwhaf, and to he re-
imoic-d for ihnt v. roni: v.asolIViwl unto him, are
returnable ori!;-!eiminahle in Miinc court of jus-
tice within England, and to be served and exe-
cuted by the sheriffs, or other minsters of justice
w it'iin England ; and these cannot by any means
extend into any other kingdom, rouutiv.or na-

• • •

lion, though that it be uiukr the king\ actual
ligi-auce and obedience, lint tie other kind of
writ', thu aie mandatory, uud not r< medial,
J! re not tied t> any j i av [3 Im*. 170.] but do
t'll^iw subuction ami Im-coioc. in wir.il country
i n- nati-m s.ot*ter the juhj'ct i>, as i!so kind's
vvnt to command .yr.\ of hi.-j •»a,:i;,i'i.«; folding
in anv ioiv:.;u < o-i.t.v, to niinn into anv of
the kind's own d.r.umh:;*, ' sid> ll le if hg'-
' antia qnio::s isohi* teat mini.' And *■» are
the ailrcsuid nv.uuhr.ory us its riled on; of tin-
Register of protect but for safety of !..■■! v and
goods, ami re*»ts::-i:iEr« t !'.» t if anv iojmv he
offered, thar the s.uuc br it d:\-.-sed acorcii: ■ to

le

\A

C

the laws and ci^t-.ais ot t!v*t place. "\
Keg. fid. °fi. Stamford, Prarng. cap. i '.*. f
saith, that men bun in Gasc. in a;v iuh- rit-dde
t> lands in England. This doth «:!-.■ :•; ;■ •;..• hy
dives acts of nn:S;-:tuent : i'.r I v tie whde
jj.ii::aru..'iit, 59 E. 3, c »j». hi. i» is :-vced. th a
ti.e ( iaseoins ::re ( i't'iO li-;<r.r.ce :\v\ ^nlijeeti.in
of the kin^. \"idc -i'J Ed. ^, cap. rJ. ti '»0 II.
6. caa.^.iVe.

(itiieune was r.nothcr part ef Aquitain, and
cuine bv the $ une title : and those ot'Guii.nne
•were by net of parliament in 13 Hen. 4, [nu.
£»'. Cotton's Abr. 41-0.] not impriutfd. vx /••»/.
jturlioiiCiit. to Urn vnm, ndi'id^t d and declared
to be no aliens, bet able to po.-*e>s and pur-
chase. &c. lauds within th\ realm. And so
doth Stamford take the Jaw. TraMog. c. 12.
f. W.

300 years, within which duchy there were fas
some write) -1 archbishopricks, 24 bishop ricks,
15 earldoms, C?03 baronies, and above 1000
captainships and bailliwicks : and in all this
longtime neither bonk -case nor record can be
found wherein* any plea was offered to disable
any of them that were born there, by foreign
birth, but the contrary heieof directly nppear-
eth by the said book-case of (a) '17 lib. Ass. -W.
The kings of England had sometimes ?s "r-
mandy under actual liceancetmd obidience. The
rjuestion-ib then, whether men born in Norman-
dy, after one king had them both, were inheri-
table to lands in England ; and it is tvident oy
our hooks that they were : for so it appearetn
bv the declaratory act of 17 Edw. ?, dt I'firrog.
Heg. c. 112. that they were inheritable to, mid
capable of lands in England: for the | ur«
view of that statute is, * quod re\ habebir e»-
' caetas (le t<rri> Norniannoriun, ccc.' £.^(i,
Normans mijiht have bands in Knubtiid : * t;

* hoc similiter ititclligenduiii est, si »liqu.i ba>

* rcditasdesct.'ndat alien i r.ato in partibnstrans-
' marinis, &c* [ Stand'. Pritrns;. Cfl, "0, cVe.)
AV hereby it appearetb, tiiat they were capable
of lands within England by descent. And
thai this act of 17 Edw. 2, was but a declara-
tion of the common law, it appcarcth both by
Uracton, who (as it bath been said; wrote in*
the reign of Henry 3, lib. 3. tract. 2. e. I. f_
116. and by liritton who 'wrote in 5 Edw_
1, c. 1U. that all such lands as any Nonmvr ^
had either by descent or purchase, cscheu ted u
the kii'g fi>r their treason, in revolting froi
their natural liege lord and sovereign. At'
therefore Stamford Pru iDg. cap. 12. fob C
expounding the s'dd statute of 17 Edw.
cap. 1'i. conclude! h, that by that chapter
sl.-ouid appear (as if he had said, it is a; pare
without qtie-tion) that sill men born in N
mandy, Gu«coint (imenne, Anjou, and Elriti
(whilst ti.ey wen under actual obedience) w
inlieritaldc within r!.i> ie.ihn as well as EnjiL
u.ni. And the reason lIh reof was, for *i
they were under one ligenmre doe to oixc*
vereivjn. And ^o mucii (omining many <■* x\m
authorities) for Normandy : [Kel. '20U.pl— 1°-
A Insr. y^G. Co. Eit. 11. b. Seld. Mare *_- ln"
lib. 'J. Ciit). 19. f Iiiernsev and Jersey. 1 s»vi '"'e I
cannot let pass the isles of Guernsey and .-Jer-
sey, part* and parcels of the dukedom of ^*or-
mandy,\w leiunhung under the Hctual li£«?'cw',re
and ohedirnce of the kin£. I think \\n *'"3n
will doubt, but tho-e that are b'jrn in lit***™'
sev and Jersey (though those isles are no f^«r-
cvl of the realm of Kngland, but several cic*11"-
nions enjoyeil \,y several titles, governed by ftf*
veral laws) e.re in)i"ritable and capable of &aT
lands within tlw* rerdni of England, 1 Edwr- •% ,

And thus much of the dukedom of Aquitoin,
which (toi»etliir with the earldom of Poitiers)

came to Hen. 2, (as h.uh hern said) by mar- I fob 7. [Co. Lit. 11. b.l Commission todet^"
■ ■ mine the title of hunis within the said W**r

(A.) Vau»h. '299. 9 C«». 31. b. S Roll. 583. '
Co. Lit. 7 i. a. Dr. Trial. 126. I ( a) Uav. 19. a. Moor 796, 801.

Wj] STATE TRIALS, 6 James I.

according to the laws of the isles; [4 Inst.
!2;ii.j and Mich. 41 Ed. 3, in the treasury,
' quia negotiuin prd'd' iitc alitpia alia lejoua
■ (!e insula prod* emergciitia non dibent u rmi-

* nar i, nisi secundum kgein insula prad*, \c'
And die Register, tub '£!. ' rex iidrhbtis >ui*»

* (iiicrnsev et Jersey.' King Wilh-un the lb at
lin s slight this dukedom of -Nurmaudy with him
m lilcti l<y five descents continued under thfi
nctuni obedience of the kiri;/* of England ; mid
in or about the 6th of king John, the crov. a oi
England lost the actual possession thereof, un-
til Hen. 5 recovered it again, and left it to lit n.
C, who lost it in the 23th of his reign ; w herein
were (as some wiitc) one archbishopric and >ix
bbhoprickc, and 10U strong towns and fortresses,
brides ili^se that were wasted in war.

.Maud the impress, the only daughter and
loir uf Ilcr»ry 1, took to her second husband
Ji;Trey Pian'tagenct, eail of Anjou, Tourain,
awl Alayne, who had i>*ue I Jen. U, to whom
fiiesuid c-arkljin by jast title descended, who,
•udlhe kings that succeeded him, styled them-
selves by the nsinrie oi" Comes Andegav', eve.
audi Edw. 3. became kirn of all Trance : and
Micb as were born wit inn rlrnt earld'jm, so
loir: as it was under the aniual obedience of
ticking of England, were no aliens, but naiu-
ral-fiuru subjects, and never any oiler made,
ttat nc can find, to disable them for foreign
binb. [Co. Lit. 7. a.]

But leave we Normandy and Anjou, and
<peak nc of the little, but yet ancient and ab-
wlote kingdom of the lt»le of Man, as it ap-
FGireih by divers ancient and authentic re-
cords; as taking one for many, [l lint. '203,
2C1. Co. Lit. il b. Kelw. *i()'». pi. 1!). '?
And. 155, 1 jo\] Artold kinir of Man surd to
Hen. 3, to come into England to ennier with
him, and to perform certain things which were
due to lien, .'?, thereupon lien. 3, fil Decemb.
•mi. resni f-ui 34. at Winchester, bv his letters
latent nave licence to Artold kiui! of .Man :r*
J'Hweth : ' Kex omnibus «uluttui. £ciali-»,

* •|«nii licenriam dedhnu.-, c\:e. Art'ddo regi
€ tie .Man \eniendo ad in.* in Anpl' ad lucjuend'

* n-jLi-L'' et ad facieiid' nobis ipiod fact re de-

* hit; it ideo \obis iiium i.; i ii>>, <juh1 ei rcgi in
*vtiiieiido ad iijs in Angl*, *el ibi inorando,

* ul iaile rcdcMido, unburn facia!.' aut fieri pci-
" Oiill.itis damnum, ini'.ir', mok -«ti»iu, aut gra-
"viiupd, vel etiam hoiiiiiiib' suis i\\\o-% serum
"ducct; et •»: nliqiiid cis loiistact* fuerit, id eis

* Maedil.it' facial' ru'.cndnri. 1 n cuju*, ike.
"daratur' iihtpi'* acl lest' S. Mich.' Whnein
•*n things are lo be observed; 1. 'I hut seeing
lint Art old kim». of Man Mini for a licence in
ibis case to the ki;:ir, it provcih h:m an absolute
■inij, fur th ti a in- ui;ii eh «>r an absolute prince
f^uiot come in! o En. land witbuut licence ol
die Lin^ ; but any aiilju t being in league, may
"'Uie into lhi> leal n v. i? h->ut lin. ace. 'J. '1 li.n
J|»C king in his lirenre cji.rh style birn by the
name nf a king. li w is rcsob.ed in 11 JI. t">.
'tut (there an ullice w,ii found after the dc-
fti»of Tlioinas e,j;| uf Derby, :«nd tirat be
&*& wised, C\V, of the Isle of Alan, that the

1 COS.— 77* Case of the Poatnau.

[Citf

said office was utterly \oid ; for that the !*'•»
of Man, Normand;, Ga^coiii, &c. were out of
the power of the Chancery, and governed bv
set-end laws; and yet none will doubt, but
those that are bom within that i>le, are capa-
ble and inheritable of lands uitl.iii the re. dm
•vi I"'ni:laiid.

W'alCi was soiiictime a kin ;•!■ n», as it up-
penruh by ll» 11. (j, fob o', a>.d by the act vi*
parliament ot '> II. ;'», c. (j, but wliil-t it v.a> a
kin^d .in, the same was li'ddc-si, and within the
fee, of the kin^; of Enthmd ; and this appeareth
by our books, lltta, lib. 1. cap. 10. 1. E. Hf
50. \:i E. 3, lit. Jurisdict. 10 IL 4, 6 Plow.
1 i. 8 R. 3, Com. 363. [3 Keb. 402. 4 lint. ^3f»,
'J lO:\-r.Plow. V>0. b. l'^i*. X'augh. «31.j Ami in
this respect, in divers ancient chaitcis, kings of
old t.mc styled themselves in several manners
asking Edgar, Hiitanniiv JWjXm*; Et held udu»,.
' totuin Albion' Dei piovidemia imperat-ir ;*
' Edredus Mugn* lir.-isinn1 monarciia;' whii li
among many other of like nature 1 have Men.
Jir-,1 by the sUt»:i:: of VI E.'l, Wah s v.a> iiiiited
and i icfj; polite I into England, and made par-
cel of Em^iaii'l m po.<"-t"»sioii ; un.l thcrefou it
js ruled i.i 7 11. I. f. 13. «, that n> prote'l;«;i
doth lie * iftii.i moraiur in Waliia,' heenn-e
| \Vnl."» »^ wjl'iiu t!ie realm of I'ng and. [( "r.».
Lit. 130. b. Kit/, protect. 'J3. Rr. j^iotecr. 33. 3
Keb. .|i)j. Vaugh. 414.] And where it i* rerit-
td in the act of>7 II. i«, that Wale* wa» ever
parcel of the realm of Eujiland, it is true in thi>
sense, viz. that before i'> E. 1, i: v.a.s parcel in
tenure, and since it is parcel of the bo ly of the
re dm. And whosoever i* born wj bin the fei*
of the king of England, though it be in another
kingdom, ^ a natur.d-b-Mii sniijccf,aud capabh:
and inheritable of land^ in EniiUmd, as it ap-
peareth ia Plow. Com. Ho\ And therefore
those that were born in Wr-ki before V> E. 1,
whilst it w:im on y huM.:ii uf Ja^h» ml, v. e;e ca-
pable and ud.eiu.ihh- liflamK in ivn^html.

Now come we to Trance and t be members
thereof, a^ C;.!hcc, (Juvne*, Turn nay, &o
which de-cemied to Edw. 3 :•.- -on ami heir to
IsuIkK dat;;.'hler and heir to Philip ie lleau,
king of France. Certain il is, whilst Henry 6
hacl both England, and t!a; heart and greatest
paitof France uoler hi** actual ligeance and
obedience, fur h< w a-* crowm-d kinjr of France in
Pari?, that tin v thai linn were born in those
purl^of I'rauee thai were under actual ligenuce
and obedieiM e, were no alien?, but capable of,
and inherit. dd to kind-, in England. And that
ij prnvi'd by tlw v\nt> in the Uejister, fob *»0,
cited before. lint the- inrulhnent of letters pa-
lent of deiii/ation in the I-'xi'liifpuT ini' origyia-
lia, aim. 11 11. 0, with the lord treasurer's re-
membrancer, wa«<tionjly urged and objn ;<-<! ;
lor, it was taid, UieiLbv it ajtpeanth, thai H. o,
mi anno 11 of hit rriun, did make deni/cn c.iscs
Kcvnil b .in in Fiimce. W hereunto it was
aiiswcred, that it i^ proved by the said hlltis
paiem, th.it he was bom in lranci, beibie
llenr; 0 had the actual jio^^e^ion <d" the erowu
of France, so as he was Anteuaiuj ; and this
uppeiiritu by the *aid letterk patent, wbeicbj

647]

STATE ^TRIALS, C James I. 1608.— The Case of the Postnati.

[648

the king granted), tliat ' magister Johannes

* Reynrl serviens ii;i»ter, &c. iufra regnum nos-
' trum Franc' oriundus pro termino vita suae sit
' ligcui no-ter, ct eodem mndo teneatur sicut
' verus et fidelis no*ter infra regnum Angl' ori-

* undus, ac quod ipse terras intra regnum nos-
' trum Angl' sen alia dominia nostra perquhere

* possit et valeut.' Now it' that Reynei had
been born since Henry 6 had the quiet posses-
sion of France (die king being crowned king of
France abuui one year before) of necessity he
must be an infant of very tender age, and then
the king would never have called him his ser-
vant, nor made the patent (as thereby may be
collected) for his service, nor have called him
by ihe name of m agister Johannes lteynel :
but without question he was Antcnatus, born
before die king hud the actual and real posses-
sion of i hat crown.

Calais is a part of the kingdom of France,
and never was parcel of die kingdom of Eng-
land, and the kings of England enjoyed Calais
in and from the reign of king Edw. 3rd, until
the loss thereof in queen Mary's time, by the
same title that i\ny hud to France. [Relw.
^02. pi. 19. 2. And. *116. Br. trial, 58, 133 Br.
erro. 101. Br. cinque ports 10. Vaugh. 401,4
Inst. 282.] And it is evident by our books,
that those, that were born in Calais, were ca-
pable and inheritable to lands in England, 42
E. 3. c. 10. Vide 21 If. 7, 33. b. 10 II. 6, 2 E.
4, 1. a. b. 39 H. 6, 39. a. 21 E. 4, 18. a 28 H.
C), 3. b. By all which it is manifest, that Ca-
lais being parcel of France was under the ac-
tual obedience and commandment of the king;
and by consequent those that were born
there were natural born subjects, and no
aliens. Calais, from the rei^n of Edw. 3,
until the 5th year of quoen Mary, remained
under tho actual obedience of the king of Eng-
land.

Guines also, another part of France, was
under the like obedience to Henry 6, as ap-
peareth by 31 H. 6, fol. 4. And Tournay was
under the obedience of Henry 8, as it appeareth
by 5 El. Dyer, fol. 224, for there it is resolved,
that a bastard born at Tournay, whilst it was
under the obedience of Henry 8, was a natural
subject, as an issue born within this realm by
aliens. [Fitz Protect. 13. Guynes. Touinay.
Dy. 224, pi. 29 Vaugh. 232. Co Lit. 8. a.J if
then those that were born at Tournay, Calais,
&c. whilst they were under the obedience of
the king, were natural subjects, and no aliens,
it followeth, that whf n die kingdom of France
( whereof those were parcels) was under the
kiug's obedience, that those that were then
bom there, were natural subjects, and no
aliens.

Next followeth Ireland, which originally came
to the kings of England by conquest ; but who
was the iirst conqueror thereof, hath been a
question. [12 Co. 108, 109, &c. 4 lust. 349,
3.30, c\'c. Daw CO. Prarf. 4. Hep. 32, 33.] I
have seen n Charter made by king Edgar in
these word": ( Ego Edgarns Anglorura ***t\wt,
« ONaniuinquc insulanuu ocenni, qua Britanniam

* circumjacent, imperator et domiuus, gratias
' ago ipsi Deo omniuotenti regi me o, qui ineum
' imperium sic ampliavit et exaitavit super rcg-
' num patrAm meorum, &c. Mini concessi,

* propitia divinitas, cum Anglorum impeiiut
' omnia regua iusularum oceani, &c. cum susi
' fcrocibsimis regibus usque Noivegiain, maxi-

* inainque partem llibern', cum sua nobilisainia,
' civitatc de Dublinn, Anglorum regno subju-
' gare, quapropter et cgoChristi gloriam et lau-

* dem in regno ineo exaltare, et ejus servitium
' amplihcare devotus disposui, &c.' Yet for
tliat it was wholly couquered in the reign of
Henry 2, the honour of the conquest of Ireland
is attributed to him ; [Co. Lit. 7. a.J and
his style was, ' rex Angl1, dominus Ilibern',
' dux* Norniann', dux Aquitan', ct comes
' Andegav',' king of England, lord of Ire-
land, duke of Normandy, duke of A qui tain,
and earl of Anjou. That Ii eland is a do-
minion separate and divided from England,
it is evident from our books, 20 H. 6, 8. sir
John Pdkiugton's case. 32 II. 6, 25. 20 Elii.
Dyer 300. Plow. Com. 360. [12 Co. 111. 4
Inst. 351. 1 And. 2G3. 2 And. 11C. Dav. 37. a.
Jenk. Cent. 104. Br. parliam. 98.] And 2 R.

3, 12 a. * Hibernia habct parliamenium, et fa-
4 ciunt leges, et nostra statuta non ligant eos,
' quia non mittuiu milites ad parliamentum*
(which is to be understood, unless they be es-
pecially named) ' sed persona; eorum sunt sub-

* jecti regis, sicut inhabitantes in Calesiu, Gas-
' con;a, et Guyin.' Wherein it is to be ob-
served, that the Irishman (as to his subjection)
is compared to men born in Calais, Gascoin,
and Guienne. Concerning their laws, ex rotu-
lis pateutium de anno 11 regis H. 3, [Co. Lit.
141. a.] there is a Charter which that king
made, beginning in these words : * Ilex, &c.
' baron i bus, militibus, et omnibus libere te-

* nentibus L. salutem. Satis ut credirout
vestra nudivit discretio, quod, quando bone
memoriae (u) Johannes quondam rex Angl'
pater noster venit in Hibernian?, ipse duxit
secum viros discretos et legis periios, quorum
communi consUio et ud instamiain Hibernen-

1 sium statuit ct prrccepit leges Anglicanas in
' Hibern' ita quod leges easdem in scripturas
' redactas reliquit sub sigillo suo ad Scacca-
1 rium Dublin*/ So as now the laws of
England became the proper laws of Ireland ;
and therefore, because they have parliaments
holdcn there, whereat they have made divers
particular laws concerning that dominion, as it
appeareth in 20 II. 6, 8. and 20 El. (b) Dyer
3C0, and for thift they retain unto this day di-
vers of their ancient customs, the book in 20 II.
6, 8. holdeth, that Ireland is governed by laws
and customs separate and diverse from the laws
of England. A vovaue royal may be made into
Ireland. Vide (cj 11 II. 4, T. a. and 7 (d) E.

4, 27. a. which provcth it a distinct dominion.

(a) Co. Lit. 141. b. 2 Vent. 4.

(b) 9 Co. 117. b. Cart. 186.

(c) Fitz. Protect. 24. Br. Protect. 34.

[d Fitz. Protect. 16. Br. Protect. 72. $

649]

STATE TRIALS, 0 James I. 1608.— Tlte Case qfthe Postnaii.

[650

And in anno S3 reg. El. it was resolved by nil
the judges of England in the case ot (e) Orurke
an Irishman, who had committed high treason
in Ireland, I hut he by the statute of 23 H. 8, c.
33. might be indicted, arraigned, and tried for
tbe same in England, according to the purview
of tout statute ; the words of which statute be,
1 that all treasons, &c. committed by any (j)
4 person out of the realm of England shall be
1 from henceforth enquired of, &c.' and they all
resolved (as afterward they did also in sir John
Perrut's case) that Ireland was out of the realm
of England, and that treasons committed there
were to be tried within England by that statute.
In the statute of 4 H. 7, cap. 24. of (g) fines,
provision is made for them that be out of this
land, and it is liolden in Plow. Com. in Stowel's
case 375, that he that is in Ireland is out of this
land, and consequently within that proviso.
Mi*ht not then the like plea be devised as well
against any person born in Ireland, as (this is
against Calviu that is a Pcstnatus) in Scotland ?
for tbe Irishman is born * extra ligeantiam regis
• regni sui Angl', &c.' which be verba opera tiva
io tbe plea: but all men know, that ihey are
natural bom subjects, and capable of and inhe-
ritable to laws in England.

Lastly, to conclude this part with (h) Scot-
land ibelf. Iu ancient time purt off'; Scotland
(besides Berwick) was within the power and li-
grance of the king of England, as uppeareth by
oar books (k) 42 E. 3, 2. b. the lord Beaumont's
case, 11 E. 3, c. 2, &c. and by precedents here-
after mentioned; and that part (though it were
under the king of England's li«;eance and obe-
dience) yet was it governed by the laws of Scot-
land. Ex rotulis Scotia:, ar.no 11 Ed. 3,
amongst the records in the To act of London.
'Rex, &c. Constitnimus Kich; Talebot justici-
' arium nostrum villa; Bcrn-ici super Twedam,
*»c omnium aliartim term ruin nostra rum in
f partibus Scot', nd faciend' omnia et singula

* qua ad ofliciuui jiiiticiani pertinent, secundum

* legem et consuctudiuein p'jni Scot'/ And
after anno 2o E. 3, ex eodem rot. « Rex Hen-
4 rico de Percey, Kicardo tie Nevil, fire. Volu-

* muc et tobis el alteri ve strum tenore praesen-
0 tiura com.nittimus et mandamus, quod homi-
4 nes nostri de Scot' ad pacem et obedicntiam

* nostram existences, legibu*, libertatibus, ct li-
' beris cousuetudinibus, quibus ip«-i ct anteces-

* tores Bui tempore Celebris memoriae Alexandri
' qoondam regis Scot' rationnbiliter usi fuerunt,

* uli et gatidere deberent, prout in quibusdam

* indenturis, fire, pleniusdiciturcontineri.' And
there is a writ in the Register 295. a. « Dcdi-

* niua potestatem recipiendi ad /idem et pacem

* nostram homines de Galloway.' Now the case
in (I) 42 Ed. 3, 2, b. (which was within 16

last. 11. 18, 24. Co. Jit. 261. b. 1. And. 262,
363. * Vent. 4. Cart.190. Cawly 93.

(f) 35 II. 0. c. 2.

(g) Cawly 93. Co. Lit. 261. b. 3 Inst. 11.
fkj 3 Inst. 18. Plowd. 368. b.

ft) Heylin's Cosmog. lib. 4. p. 305, S06.

(k) Fin. Brief 551.

1 1) Frtx, Brief 551. Ant. 23. a.

years of the *aid grant, concerning the laws in
26 E. 3,) ruleth it, that so many as were born
in that part of Scotland, that was under the li-
geance of the king, were no aliens, but inherit'
able to lands in England ; yet was that part of
Scotland in another kingdom governed by seve-
ral laws, &c. And if they were natural subjects
in that case, when the king of England had but
part of Scotland, what reason should there be,
why those that are born there, when the king
hath all Scotland, should not be natural sub-
jects, and no aliens ? So likewise (w) Berwick
is no part of England, nor governed by the laws
of England, and yet they that have been bom
there, since they were under the obedience of
one king, are natural born subjects, and no
aliens, as it appeareth in 15 K. 2, cap. 7, &c.
X\fa(n) 19 H. 6, 35. b. and 39 II. 6, 39. a.
And yet in all these cases and examples, if this
new devised plea had been sufficient, they
should have been all aliens against so many
judgments, resolutions, authorities, and judicial
precedents in all successions of aces. There-
were sometimes in England,- whilst the heptar-
chy lasted, seven several crow ncd kimjs of seven
several and distinct kingdoms, hut in the end
the West Saxons got the monarchy, and all the
other kings melted, as it were, the crowns to
make one imperial diadem, for the king of the
West Saxons overall. Now when the whole
was under the actual and real ligeance and obe-
dience of one king, were any, that were horn in
any of those several and distinct kingdoms,
aliens one to another ? Certainly they, being
born under the obedience of one king and sove-
reign, were all natural horn subjects, and capa-
ble of and inheritable unto any lands in miy of
the said kingdoms.

In the holy history reported by St. Luke, ex
dictaminc Spirit u* 8<ncti9 cap. 21 et 22 Act.
Apostolomm, it is certain, that St. Puul was a
Jew, born in Tarsus, a famous city of Cilicia ;
tor it appeareth in the said 21st chap. v. 39, by
his own words, * ego homo sum quidem Judscus
4 a Tarso Cilicia:, non ignotre civitatis muni-
' ceps.' And in c. xui. v. 3, * ego sum vir Ju-
1 dams natus Tarso Cilicia?, &c* and then
made that excellent sennon there recorded;
which when the Jews heard, the text saith,
v. 22, ■ levaverunt vocem suam, diceutes, tolle
* de terra huju&modi, non enitn fas est rum vi-
' vere ; vociferantibus autem eis et nmjicienti-
( bus vestimenta sua, et pulverum j acta nti bus
( in aerem.' Claudius Lysias the popular tri-
bune, to please this turbulent and profane mul-
titude (though it were utterly against justice
and common reason) the text saith, <ju«sit tri-
1 bonus, 1. induci cum in castra, 2. flagellis
' cxdi, and 3. torqueri cum (quid ita ?) ut sctret
' propter quam cau*am sic acclamarent ;' and
when they had bound Paul with cords, ready
to execute the tribune's unjust commandment,
the blessed apostle (to avoid unlawful and
sharp punishment) took hold of the law of a
heathen emperor, and said to the centurion

fm) 1 Sid. 381, 382. 2 Burro. 858.
(n) Fitt. Protect. 8. Br. Protect. 49.

^ • %

Ctfl]

STATE TRIALS, 6 James I. loOS.— 7fa Case of the Posincti.

[lliVJ

standi.!.; by him, * si homiucm Roma mini el
' indcuiuatuui licet vobis li.iiK.il.iic? Which
when (he centurion heard, lie went to the tri-
bune and said, ' quid actiTiis cs? Hie enim

* humu cives Rom an us v>t.* Then rjme the
tribune to Paul, and s-iid unto him ; ( die mihi si
4 tu Rmnanus c.*>?' ' At ille diut, rtiam.* And
the tribune answered, ' ego multa summn civi-

* t.item Innc ci)ii?c.|Liuti)^ Mini.' But Haul, not
meaning tu conceal the dignity of his birth-
right ban!, ' L%ij autcm et natus sum :' as if he
should have said to the tribune, \ou have vour
freedom by purchase of money, ar.d I (by a
more noble means) by birth-right and inherit-
ance. * Protinus ergo/ sail it the text, ' deces-

* serunt ab ilio qui ilium toituri crnnt : tribn-

* mis quoquc timuit poitquum restii it, quia civis
' Romanus es*et, et quia aliignssct emu.' So
as hereby it is manifest, that Paul was a Jew,
born at Tarsus in (alicia in Asia Minor; and
vet beiim burn under the obedience of the lio-
man emperor, he was by birth a citi/.eu u:'
Home in Italy in Kuropc, that is, capable of
and inheritable to all privilege* and immunities
of that city, l'ut such a plea as i- now ima-
gined against Culvm m -l.t have mad. £t. Paul
r.n alien to R»mc. 1 or it' the emperor of
Jtome had several litfcance* for i-vtvy s'\it..[
hevz'ium mid couutrv under his obedience, men
mi^hlil lune b;iu said against M. Paul, tiiat
lie was ' t.Uru li^eantiam imperii t oris regni sui

* Italia1, et infra li^rautiam i»npe:atoris regni
' sui Ciiicia\ Ate.' Hat as St. Paul was * Ju-

* dams putnu et Romanus privilcpo, Juduuis
' nsitione el Itoinanus jure uationum ;' so may
Calvin say, that he is * Scolus patiia et Andus
' priviltgio, Scotus nutiune et AngUi* jure na-

* tioiium.'

Samaria in Svria was the chief citv of the ten
tribes ; but it being usurped by the kint: of Sy-
ria, and the Jew-* taken premiers, and earned
liway in captiiiiy, was after inhabited by the
Punyms. Now albeit Samaria ol" right bt long-
ed tu Jewry, \et because the people of Sama-
ria were not under actual obedience, by the
judgment of the chirf justice of the whole
world they were adjudged uLini^nur, aliens :
for in the Evangelist St. Luke, c. 17, when
Christ had cleansed 1 1 in ten lcpeis, ' unus ou-
' lem ex iilis,' saiili the le\t, l uL vidit quia
' jnuiuiaiU) c:^sct, it^rcr:a.s c it cum magna voce

* m.e;nifjcans Dcuui et cecidit in facicm ante
1 pedc-> «jus bi'ati.is n^ei;-, ct Lie crat Sainari-
' tanus. lilt Ji.s»» r».spondcns dixit, nouiie de-
( c«.;a uiund.'.ti sum, ct nuiviii nl;i sunt? 7\on
'et in\e:irus, qui red in. t ct darct j;loiiiim Deo,
4 km hie alien i^cna.' Si as by \\\> judgment
thu Samaritan was alitni^-nft, a slranjrer born,
because he had the place, hut wanted ohedi-
ciiic. ' lit si chsit ubtdicntia lion adjnvat lo-

* cus/ And this o^nvtli with the divine, who
saiih, ' si Iuciiy Kilvare potmssrt, -Satan deccilu
1 pro sua inobedieiilia non ceeidisfcct. Adam
1 in Paradiso non cecidi*set. Lot in montc
1 non cecidi^sct, s*rd potius in Sodom/

G. Now^rcsUth the kixth part of this divi-
sion, that is to my, sis demoustnuve illations

! or conclusions, drawn plainly an J cxpiessly
, from I he premises.

; 1. Every one that is an alien by birth, may

1 tie, or misfit have been an enemy by accident ;

but Calvin could never at any time be a:i eue-

! my by any accident ; < r£0, he cannot be an

; alien by bitth. Vide £3 II. (i, f. 1, n. b. the

ddference between an alien enemy, and a suh-

■ ject traitor. *• Uo.-tcs scar, qui radii*, \el qui-

, * bus nos helium th-ceniin.us; cakteii prodi-

' ' tort.^, pr;edones, &c* 'Lhu wujor is appaitut,

; and i* j) roved by that which bath hst.ii s;-.id.

Et vide Manna Charta, cap. So, 1*.) K. -1, o,

o K. 3, ( . 1, e27 K 3, c. '2, 4 II. 5, c. 7, 11 L.

3, Mat. 0, c. ?, iSjc.

L». Whosoever are born under one natural
liiicanec and obedience, due by the law of na-
ture to one sovereign, are natural-born sub-
jects: but CnUin was born under one natural
: li^eaiicc anil obedienc.1 due by ti.e law of na-
ture to one sovereign ; ago he is a natural-
bo. *n subject,
j :\. Whosoever is born within tlK*kin<:\ power
or j --r. -lection, is no al.eu : but Ce.lviu was lioiti
i'ikI-'.* the kin-*> power and protection : ergo h.1

0 no ;i;:eu.

4. P.very stranger bom must at his birlb be
lithe/ auHcm or inimicus : but CuUiu at bis
birth could ui'ith.'i' be amicus nor immUu* ;
ergo he is no r! ranker b irn. luimieun lie can-
not be, because he is suhJiius ; for t!mt cau^e

I also he cannot be amicus; neither nu.v can
Scotia be said to be solum uwici, as hath been
said.

5. Whatsoever i«» due by the law or consti-
tution of man, may be altered; but natural li-

: t-cance or obediem e of the subject to the so\e-
j iviim cannot be altered ; trpi natural ligeaucc
[ or obcdieiue to the sovereign i^ not due by the
j law or enn.-titutiou of man. [Saw\M% Aijiu-
! meat in (im» Warranto, J.'».] At;.iiii, whataO-
1 cut is due by J If l*iw of nat.ae, cannot be al-
! tcred; but lij/.ar.re and obedience of the sub-
j ject to i he soveiei^n i^ due by the law of na-
; lure; ergo it cannot be altered. It l.uili been
proved liLlure, that lis;e.tncc or obedience of
the inferior to the superior, of the i-ubjctt to
the sovereign, was due bv the Ii»v of nature

• mm

many tl.oiisaml vents before any law ot man

was made; which liiieanceor obe litnci (bt-.n-i

j the only mark to distinguish a subject tioui m\

'• alii ii) «'ould not be altered; thtreniri: it n-

i maineth still du'.* by tlu? law of nature. Tor

' hiji-s u-itura* j> riU'ti^.-iaia* *cnr et innaiita-

* bile-, hui'.iani m ro juris conditio scmpt r in
' iniiiiit inn decurrit, et uilal i*?l in to quoil |-er-

* petuo >tare p >s»it. Lccc^ humunaj ua^cuuturf

1 vivtmt, et moriimtui*.'

Lasilv. uhosuMCT at his birth cannot be nu
alii a to the kin^ of l'li^land, cannot be an
alien to any of his «ubjcct> of Knj;land ; but
the plaintiti'at his birth could be no alien In the
king of Falkland; nno tiie plaintiff caniu-t be
an alien to any of the subjects of Lnglaiid.
The major and minor both be * propoMt wines
' perspicue vera:/ For as to the ma/ur it is to
be obscrrtd, that whosoever is au alien born, is

■ .4

Iw3]

STATE TRIALS, 0 James I. IflOB.— 77k? CW*j qf M<r Postnati.

[654

io accounted in law in respcrt of the king.
And that appeareth, 1, by tlje pleadinir v> often
before remembered, that lie mu-l be l extra
* lieeantiam regi-,* without nny men: ion mak-
ing of the Miliject. [Co. J At. 2, 1». | 2. When
in alien born purchastth nny I inds, the k i i * _r
ouly shall have rhein, though they oe h ihum of
a subject, in which case the subject loseth his
leizuuiry. Anil as it i> s>:iid in our hooks, an
r.ktu may purchase * ad proiicuum retiis ;' but
the art of law siveth the alien nothiiii: : and
therefore if a uoiu-.m alien in;irrieth a subject,
»::e shall not be endowed, neither shall nu alien
be tenant by the curtesy. Vide 3 II. G, 5.5, a.
4 H. 3, 17«>, ft. [Br. denizen 1 lit/, i lower
110.] The subject thail plead, that the de-
fendant \t :>n alien born, for the benefit of the
king, that he upon office iijiriul ni;i v ti'v/.c ; and
tint the tenant may yield to the knu; the hud,
and nor i>f rl;e alien, bcenu>.e t!.o kin^ h::ih
I.*.— t rii'-t ibercuato. 4. I xnnnvi between our

*

SMJ-Ki-.i) un.l utliei** :«re the oniy me:;ii« to
m.'ru.'^ii* iVituds: * er fecicra percuture,' to
ini'U' baioic*, "idv :>.'id v.holiv rcrtj.in; iii lo
ti.-'.ia-*. ."». \V.»is do make aliens en. uiics,
»..-! • 1m li'im i:.;;i,uv' lii-lo:.^. th only and
id. .!\ t» tl.«J k :'•«■■. and imt to the snI.;'; .rt, :.•*
aj>;iiaiviii :'i 1'.) :-■•!. I, li l.G, b. 0. 'Ik.1 ki:.;-:
•»i;:v \. i'l 'Hit the Mthiirl mav m;;kc, uul oi.iv
letters (»i Vife-ronduet, bur letWr* patent unli'-
UMtioa, to whom, v.v. [ how m.inv be v, i.I, and
edible tlum ar. his phas-jiv to sue any of ki->
Hil'jrr'.s in any uetn n whatsoever, real or per-
sonal, whiiii the kin;* could not do without the
•uhir-cr, if the sii'jcet hid anv intercut »i\en
unto iiiai by the law ia ;,hv c i • « i»*i eonreriiiuu
i:a :iiifii bmn. Nay, th* l.»«\ i» more preci.-e
li'Triii than in a numbir of other cn*e?, of
bU;er nature : for the kii.u rnuimr jiraut to
:.ny other to m:iL»> of stranger** born, deni/ens ;
ir 14 bv the law i'M'h'so h:^ ii.m.blv and inrhvi-
ilunlU annexed to his ro\:-l pcison (as the bool:
i* in 20 If. 7, lul. fl;. [t>r. patens 111.) lor
tlte law c^tccnicth ic a point of hi^!i prerofM-
live, *j'i* majc'tat's, ct inur iiiHuniu Miniiiiir
• paifti.ui*av to make stli--i-: born subjects of
the realm, and capable o:' l lie hinds* ami i:ili«*-
rit:uice- of England in such soil a* anv natural-
born Mibject is. .And therefore bv the *t ;iute
ct U7 II. tt, c. '.*!. maiiv of ^hiMno^t nnrierit
|irraroi::itivf> mid r«»yai {i«iv.ers of the troun, a-»
outhnhty to pr:.-«i:>t! tie'i-.ou, murthrr, mnn-
alautrliter. nml ulonv, nower to nmke iu-tic. .-.
in £yn*v justices "i :i?-.iM , |u>:liccs of peace and
gaol -delivery, mi'! -in h like, having been *i ver-
erl and divided fr.»iu tJ;e rrowu, were ajinin re-
united to the simc : hat authority to mike h t-
ters of denization, «\as m ver n>ei.;iuiic(l tiierc-
iu to be resumed, i'*>r ti.at m ver auv eiaimed
the same by any preteit \-. hat-.or\ei', bfmu a
matter of so high n point u\ priT'<:ativc. Si
a» the pleadinir a^aiiiHt an alien, the purchase
bj any alien, leuunes, and warn between abt ns
lfenbation% and Nafe-condm-ts of aliens, have
aspect only and wholly unto the kim;. It fob
.ioweth therefore, that no man ran be alien to
the subject tint is nut alien to the king. * Non

* potot esse alietiigena corpori, qui non est
i ea; iti, non sreai <pii non e.»t regi.'

The authorities of law cited in this case for
maintenance of the judgment : 4 II. U, tit.
Duwer. Uracton, lib. 5/fol. 427. l-'leta, lib.
G, e.ip. At. In temp. E. 1, llm^hnm's Kepwru
If Kdw. i», cap. K», 1 1 Edw. :?, cap. i>. 1* Ed.
:5, Statu! . de Einncia. VI Ed. 3f 'till. li> -il Ed.
y, cap. 10. 'i'l Lib. A«* J.-). 13 Uich. 'I. cap. 'J.
15 Kich. 'J. cap. 7. 11 lleu.l, M. 26. llllen.
-}, fob 19. i:i 11. 4, iStatutum de (iuysui. 3!)
Ken. G, tit. Edoppel -Ki. 'JO lien. (i,"cap. 6.
32 Hen. 0, fob -23. 23 II; n. 6\ fob '„>6\ Littl.
Uiii}>. l'.d. 4, lib. 2, cap. \ lllen. «;e. 15 Ed. 4,
f«l. 15. 1!) Ed. 4, G. •S'J Ed. 4, cap. 8. 2 Kich.
3, '„>. cS: l'J. G lien. 8, fob 'i. l\yer M. Hen. H,
cap. '„». No mamur of strang»*r born oat of
the kint**» obeysance, f>'2 II. J*, cap. 0. Every
per .-on born out of \\ic realm of En.!:! and, out
of the king's obeysance, UJ Urn. >J, cap. i»j.
25 Hen. [?, cap. * 15, 6cc. 4 Eil. ti, Plo.vd.
C« mment. fob J. Eo^arsa's caic. 2 c» 3 IMi. «S:
,M:ir. i)v.r 115. Slurb*. *s cave. 5 El. liver
<J4. 13. EI. cap. 7, dc lhiiikiuprs. Ail coai-
m:*si«ins ancient and laU1, for the finding of
otiices, t«> untitle the kinu to the lands of ubens
horn: a!-o all le!f.Ti patent of denization of
| uncieir. and h»t..v times do prove, that he is uo
ulif.n tl»v i. i-, born umbr the? kind's obedience.

Now Tie are enmc to consider of leffil iucon-
\en'u;fct.s : a:..l ". r>t tt{ •iich :. ■ b ve been ob-
Itvted u<.:iin»>t th-> pLiiutiif, and Mrcnndly of
Mich a* *s!;o:ld f- Iliw, if it bad been adj«:d^cd
a«j;;iinst the plaintiff.

Of ?!i!ch iiiroiivenii" nces as were objected
■>'.rain-.t t!:e plaintiff, there ren>:iiii only tour to
"oi- iiii;a\ereti: lor all the res- 1 :.ie clc.irly and
fu;Iy sat'ji'.cd bi-ib:e: 1. Tlwi il lJe>tnati mIioiiM
be inheritable to o-ir law3 ui:<! iubciitnnr es, it.
were reason liiey -i'oidd be bi.rnd bv our laws;
but Eo-it mui sire re.t hound h\ our statute or
eosunion laws ; fur th.ev h;<\in</, as it was ob-
jerlcd, tu^er sii mie.h iVeei.i.id or inherit anee,
cannot he returned of jnrie-i, nor suhje"t to
fee; it hi' h-r. nor eiiameable in riik relies or rj*i in-
/iine>, nor bound hv ni.\ act of paii:aa»U!J
made in l-'ni!:.:*.'}. •>. \v"!.eiher one be born
within i lie kn.': i >'i of lNM'1-Mid or no, a m>t.
trivd'le in lui^hmd : f t iliai il i» a thini§ done
out of tnis r-'alm, ;ind no iurv can be returucu
for the Irii.'i oi'e.ny *iii«;h ivue- and what ineo:i-
lenience should thereof fi-llow, if such f'e-js
that waii'.e.l trial si onld he allow e b for ll'.ei: :.|l
aliens uikh;. iinnnii.e tne like ]dea> thev, tii «t
oh c-rtf.l it, hit it to the consideration ot other-;.
3. It wa-> objected, that this innovation \;i\-> v»
(hu;i'LP>!>s, that the e<at.tin event thereof i >
iiia'i could fon see ; and therefore, S'ji:.l«
thoiioht it lit, that thiujys should r*tanH uih! eon-
timie as thev had been in former time, fur fern
I oi tht1 worst. 4. H Postnati were by law legit •
J n.ated ;u 1- upland, il was objected what nicon-
j \eiiii ncp and confusion should follow, if, for
the punishment of us all, the kincS royal is-ue
«h'.u!d fail, ike. wlureby those kingdoms miiiht
a 14: n n b( divided. All the oth:r arjument^ anfl
objections, that have been made, have been all

655]

STATE TRIALS, 6 James I. 1008— Tfo Case of the Postnati.

[656

answered before, and need not to be repeated
again.

1. To the first it was resolved, that the cause
of this doubt was the mistaking of the law : for
if n Postnatus do purchase any lands in Eng-
land, he shall be subject in respect thereof, not
only to die laws of this realm, but also to all
services and contributions, and to the payment
of subsidies, taxes, and public charges, as any
denizen or Englishman shall be ; nay, if he
dwell in England, the king may command him,
by a writ ot ne exeat regnwn, tliat he depart
not out of England. But if Postnatus dwell in
Scotland, and have lands in England, he shall
be chargeable for the same to all intents and
purposes, as if an Englishman were owner
thereof, and dwelt in Scotland, Ireland, in the
islet of Man, Guernsey, or Jersey, or else-
where. The same law is of an irishman that
dwells in Ireland, and hath land in England.
But if Postnati, or Irishmen, men of the isles
of Man, Guernsey, Jersey, &c. have lands
within England, and dwell here, they shall be
subject to all services and public charges within
this realm, as any Englishman shall be. So as
to service and charges, the Postnati and Eng-
lishmen born are all in one predicament.

2. Concerning the trial, a threefold answer
was thereunto made and resolved : 1. That the
like objection might be made against Irishmen,
Gascoins, Normans, men of the isles of Man,
Guernsey, and Jersey, of Berwick, &c. all ,
which appear by the rule of our books to be
natural-born subjects ; and yet no jury can
enrae out of any of those countries and places,
for trial of their births there. 2. If the deman-
dant or plaintiff in any action concerning lands
be born in Ireland, Guernsey, Jersey, oic. out
of the realm of England, if the tenant or defen-
dant plead, that he was born out of the lige-
ance of the king, &c. the demandant or pluin-
litf may reply, that he was born under the lige-
wice of the king at such place within Eng-
land : [Co. Lit. 2o1. a. b. 6 Co. 47. a.] and
upon the evidence the place shall not be mate-
rial, but only the issue shall be, whether the de-
mandant or plaintiff were born under the lige-
ance of the king in any of his kingdoms or do-
minions whatsoever: and in that case the jury,
if they will, may find the special matter, viz.
the place where he was born, and leave it to
the judgment of the court : and that jurors may
take knowledge of things done out of the realm
in this and like cases, vide 7 H. 7, 8. b. 20 Ed.

3, Averment 34. 5 Kic. 2, tit. Trial 54. 15 Ed.

4, 15. 31 H. 6, 25. Fit*. Nat. Br. 1<»6. Vide
Dowdule's case, in the 6ixth part of ray Re-
ports, fol. 47, and there divers other judgments
be vouched. 8. Brown, in anno 32 H. 6, re-
ports h a judgment then lately given, that
where the Jefendmit pleaded, that the plaintiff
was a Scot, born at St. John's town in Scot-
land, oat of the ligeance of the king ; where-
upon they were at is«me, and that iasue was
tried where the writ was brought, aad that ap-
peared! also by 27 Ass. pi. 24. that the jury
did find die prior to be bom in Gatcoin, (tor

so much is necessarily proved by the words
trove fuit.) And 20 Ed. 3, tit. Averment 34.
in a juris utrum, the death of one of the
vouchees was all edged at such a castle in Bri-
tain, and this wa> enquired of by the jury. And
it is holden in 5 Kith. 2, tit. Trial 54. that if a
man be adhering to the enemies ot' the king in
France, his land is foi feitahle, and his adherency
shall be tried where the land is, as oftentimes
hath been done, as there it is said by Belknap :
and Fitz. Mat. Br. 196, in a mortdtutc\ if the
ancestor died * in itiuere peregrination is sux
* vers. Terrain Sanctatu,' the jury shall euquiie
of it. But in the case at bar, seeing the defen-
dant hath pleaded the truth of the case, and the
plaintiff hath not denied it, but demurred upon
the same, and thereby confessed' all matters
of fact, the court now ought to judge upon the
special matter, even as if a jury upon an issue
joined in England, as it is aforesaid, had found
the special mutter, and left it to the ourt.

3. To the third it was answered and resolved
that this judgment was rather a renovation of
the judgments and censures of the reverend
judges and sages of the law in so many ages
past, than any innovation, as appeareth by the
book and book-cases before recited ; neither
have judges power to judge according to that
which they think to be fit, but that which out
of the laws they know to be right and conso-
nant to law. * Judex bonus nihil ex arbitrio
' suo faciat, ncc propnsito domestical voluntatis,
' scd jmttn leges et jures prontintiet. And as
for * timorcs,' fears grounded upon no just
cause, ' qui nun cadunt in coustantem virum,
' vani tiinores xstimandi sunt.'

4. And as to the fourth, it is lest than a
dream of a shadow, or a shadow of a dream :
[? Ventrix 6.] for it hath been often said, na-
tural legitimation respecteth actual obedience
to the sovereign at the time of the birth ; for
as the Antenati remain aliens as to the crown
of England, because they were born when
there were several kings of the several king-
doms, and the uniting of the kingdoms, by de-
scent subsequent, cannot make him a subject
to that crown to which he « as alien at the time
of his birth ; so albeit the kingdoms (which Al-
mighty God of his infinite goodness and mercy
divert) should by descent be divided, and go-
verned by several king*;* yet it was resolved,
that all those, that were burn under one na-
tural obedience, while the realms were united
under one sovereign, th'iuld remain natural
born subjects, and no aliens ; for that natura-
lization due and vested by birth-right, cannot
by any separation of the crowns afterward be
taken away ; nor he, that was by judgment of
law a natural subject at (he time of his birth,
become an alien by such a matter ex pott facto.
And in that case, upon such an accident, our
Postnatus may be ' ad fidem vtriusque regis,'
aa Bracton saith iu the afore-remembered

• Note on the Abdication of k. J. f, they
were divided : but art now consolidated by tka
Union Acu

■

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poitrt : and tli.a (wlili

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COM l-IIS l,ii|li:l^.-'l

■ ■

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that tln-n- «ub m. I i.i .in . ■
iKHimlilc, pent, ami inirlli-i-iit :m :.
tlte bunug ul'tl .. .1 -jihii. hi- ..J' im;

iluitiin:. c -i

jmlciil. S. <.:'..'. i i::.i ' |iiri,|.ni.

■
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si' «tic!i • q ■■■'<■■
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lilll!! ll Mlitll i . .

in ii wuuM "ft'-mpt it)

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■

659]

STATE TRIALS, b James I. 1608.— 7ft? Case qf the Pottnali.

[660

Lord Chancellor Kllesmere's Speech in the Exchequer Chamber, in the Case of the

Postnati (c).

My lords: Mine age, mine iniirmitie, and in-
disposition of health, my decaic and weaknesse
of uiemorie, and desuctudo, nnd long discon-
tinuance from this maner of hgall exercise
(ahoue fouretj»cne yeeres) haue bereaued mee
of the meant* and he 1 pes that should in h able
mo to speak e in so g»e it n case.

I feare then tore, that it will be deemed pre-
sumption (if n >t worse) that I nduenture to
speake he e rein at all ; specially after to many

fcj This Argument was printed in 1609,
with the following title: — The Speech of the
Lord Chancellor of F.nglaud, in the Exchequer-
Chamber, touching the Post-nati. Before the
Speech there was the following Address to the
reader :

" To the lotting readers; Before T presumed
to spcake in the Kschequcr-Chamber in It. C.
case (which is now commonly called the Case
of Post-nati/) I considered mine age and in-
firmities, and how long I had discontinued
from such legu.ll exercises. I might hereupon
haue iustly challenged the priuiledge of silence.
But greater and weightier reasons ouer- ruled
in re, and enforced mee to waiue the benefit oi'
that privilege : for, looking into the nature of
the cpirstinn then in hand, and examining the
cirr inn stances, I found the cave to bee rare,
and the matter of great import and conse-
quence, as being a special ami principal! part of
the blessed and happy Yuion of Great Britainr.
— I heard many learned and iudiciuus argu-
ment*, made by the reuerend Judges : and find-
ing that they did not all concurre in opinion
(though the number was indeede so few, of
them that ditfered, that in Greeke it woulde not
make a plurall number) and that some ilrngs
were by them omitted, which seemed to mee to
he both pevtiuf-nt to the matter, and necessary
to bee knownc, and more proper and fit to bee
spoken by Hie res;itcting the place 1 hould, than
Lr them, th t did wholv bmde thcuiscluis to
the forme and rule of I gall argument and dis-
course: I thought that 1 coulde not, in dulie,
sit as a dannne and idle hearer oiulie ; the cauee
being iudiciaily dependim* in the high court of
Chancerie, where 1 was to iudge of it according
to lawe, following the rule of mine ownc consci-
ence, and the measure of mine owue vnder-
stauding, and not to bee swayed with the weight
of other mens opinions. — 1 considered also,
that although tiUntij tut urn pritwitim is uften
true in humane policie, yet sometime there is
crimen rtlueutia; and therefore the prophet
said, ' vae niihi quia tacui.' And Chrysostome
obscrueth, that, ■ tribus mydis in veritatcm
' peccatur: 1. veritntern prai timore tacendo :
4 Q. veritatem in mendatium commutando : 3.
• veritatem uon defendendo/ Ueinembringthis,
my conscience tould me, that howsoeuer silence
ought in this case haue excused mee of the

learned and iudicious arguments of so many
gruuc, learned, and reuerend iudges.

To say the same that hath beene saied, mast
needes be vnpleasannt, wearisome, and loath-
some to the hearers; and not to say the same
is ro speake little to the purpose : for, what
more can bee saied than hath beene ?

Yet, for that the case is depending in Chan-
cerie, and adiourned hirber for difficult ie in
law, and there I must giuc judgement accord-
second, vet I could not haue escaped by silence,
from otiending in the first and last. And if
Festus thought it not reason, to Head a prisoner,
without shewing the causes which were layed
against him, I might haue beene worthily and
justly censured, if vpon other mens arguments,
and as it were fide implicit a> 1 should haue
pronounced my judgement and sentence in so
great a cause, without declaring the grounds
nnd reasons wliereupon I stood. Thus, ductie
and neccssitie (for, ratio sapienti necessiimt)
were the causes that induced mee to speake in
this rare and weightic cause, and the force of
truth moued mee to speake that which I did
speake, without respect of pleasing or displeas-
ing any. And so, hauing the warrant of a sin-
cere conscience, which is tiuly said to be, ' ye-
* luti comes, et testis, ct index actionum,' I
haue in the Chancerie iudged and decreed the
case for It. C. And the like iudgement is also
giuen by the iudges of the King's Bench, in the «-
assise depending in that court. The decree
and iudgemeiit being thus passed, diuerse vn-
perfect reports, and seuerall patches and pieces ■ m
of my speech haue bin put in writing, and dis- ;
perscd into many hands, and some nfrred to the 1
presse. The knit's majestic, hauing knowledge *
thereof, mibliked it ; and thereupon command-
ed me to deliuer lo him in writing, the whole
discourse of that which I said in that cause.—
Thus I was put to an vuexpected new labour,
to reuicw my scriblcd and broken papers. Out
of which (according to the charge imposed vpon
me; 1 gathered all which I had before -spoken,
and so set it downe faithfully nnd plainly, and
(as neure as 1 could) in the same words I vtter-
ed it. It pleased his sacred maiestie to take
some view of it; and taking occasion thereby,
to remember the diligence of the Lord Chiefs
Iustice of the Common- Place, for the summary
Report he had published of the Iudges argu-
ment?, he gone mee in charge to cause this to
be likewise put in print, to preuent the print-
ing of r.ich mistaken and vn perfect reports of
it, as were ulreadie scattered abroad. — What-
soeuer it is, it was first concerned and spoken
out of conscience and duty ; and is now pub-
lished in humble obedience to my most graci-
ous soueraigne. And so I offer and commend
it to your good acceptance and fauourable in-
terpretation. T. Ellesmeis, Cane*

661]

STATE TRIALS, 6 James I. 1608.— The Ca.se of the Postnati.

[GG2

ing to the law, whether the complainant bee
iahabled, by Jawe, to maintain* his suit in tout
court or not; 1 lioide it inure fitting to deliuer
the reasons of my judgement hcere, where
others haue hcene heard, than there, before a
few, which haue not heard that, which hmhheenc
so learnedly argued and largely debated h' ere

Aud there to re the case ^t.niclin-* thus, 1 will
ipeake wh-it I think e. And I must soy us one
of the gmue iudijes saied, 1 ran tell no neues ;
but tome old tilings which 1 haue read and ob-
lerued, I will remember; hut I cannot diuinc,
trprophesie defuturis, 1 leune that as iustice
Yelvertou did.

I am free and at libcrtie, ' nulliiis addictus
'interim raagistri,' and therefore I will spcake
ingenuously and freely. — In the arguing of this
case, tome thinges, which are of crr.it might
*iih mee, bane, (in mine opinion ) heene pi-^d
ouer too lightly : and tome other tliin^c s, v\ hich
JNme tr> ine but light, haue beene oner weigh-
ed, at I tliiuke. — Hulfe an howcrs time longer
or shorter 1 roeaiie not to striue for; and there-
fere I will presume on your patience, and as-
tsme to myselfi* such conuenient time as others
htue done: and vet I will husband time as «ell
■s I can. — I will nut be abashed to strengthen
■J weake memory with helpe of some tcribled
papers, ns others haue done : for 1 accompt it
apointvf «i*edome to lollowe wise mens ex-
aaplet. Other exordium*, insinuation, protesta-
tion, or preface for the matter its- lie either
to prepare attentiuc and hencuolcot auditors,
or lo slirre offence or mislike against either
partie, I meme not to v«-e. It is fit for oru-
tourt; 1 inner proteased the art; I had ucuer
■kill in it : and it is not decorum tor iudiies that
Ought to respect the matter, nnd not the
humours of the hearers. — The exordium the
cuiihaua vie in their sentence* 1 like well;
•in Dei nomine amen, el Deo primifus iuuo-
4 cato.' Otlier exordium I care not for.

The case now depending in Chuuncciie,
which is adinurncd hit her, is thu>.

Hubert Culuine, Sonne and heire npparaut of
lames lord C'aluine of l.'olcror^e in the realme
of Scotland, on infant of three yeures of une,
borne in tlic saied reahuc of Scothuid, inakcth
title by hit bill to a messuage and garden wirh
th' ap| urten.itiurj»"- in fie parfrh of St. Htittolph
aritliout Hisbiip^-fza'e in the citie of Ixjiidon ;
and complaint th agaiu«t !ohu Bindley, and
Richard Grifiin, tor del: lining the c-u deuces
concern in*! the sifiie on >-u ije :md land*, :>nd
taking t;»e piolit* ti.ereif. — I lie defend. mts
pleade, that t tie pluiuiiie i- an Alini ; aud that
m thf; thud yt-cre of his man iiies raiirne of
Eiuilsnd, Bill in the 3'»th veie «.f In* mail stiea
raiene ol Scotland, bet- wh.-. home in >i.e re. dine
of £Jc ith.nd, within th" hueance of hi» said ma-
iettie, of his realmc of >coiLind, and out of :he
lifeanre of oar soucraii:«;e lord the kin*; i*l' li:s
Kaliue of Kiij*land. — Ami the delendiinu *ny
further, that at the tiiueof the birth oflhe com-
plainant, and Jonj» befoie, and euer sit hence,
the saied kingdomu of Scotland wn«, and still
it, ruled and gouerncd by the proper lanes aud

statutes of the said kingdotne of Scotland, and
frit hv the I.twes and statutes of this rea!iiie of
Kn^land ; anil thcu-fore the defendants de-
lmiuiul judgement, thither the complainant
ought to hee ansueied to hi* said hill, or shull
he receiued to prosecute the said suite a^;iin*.t
tlie defendants, being; for, aud concerning the
title of inheritance, and cuidenre touching the
same. — Ueereupon the complainant hath de-
murred in law.

'1 his is the special 1 case now depending in
the C I) an eerie ; in which, and touching all
like cu>es in gf uendl, mine opinion is, and -mice
the question w.is first mooned huh beene, th.it
thc«o Pnst-nati are not .\lkin to the king, n:>r
to his kingdom'.* of Knghiud, hot hy their birth-
right are lege suhiecls to ihe king, and capable
of estates of inheritance and freehould of htndes
in En<*hnd ; and m:iv haue and maintainc ns
wcl reall ns pi rsmiall action" for the s.une : nnd
tlint therefore the now com, l.tiuant UobtrtC.'.tl-
uine ou^ht to liee tiii>\ii red.

This oj>inion 1 did lir-t ronceiue vpon tho*e
rules apd reasons in lawe <n* well the common
law of Knglnud. as the C'uiilc law) ^hich heere-
after in the course of my speeih I will remem-
ber. Ami in tin- Oj inioii 1 Ikuic \*k* ne since
confirmed by manv great and wei-ihiv reasons.

• • • •

Fhvt, in the stutute made in the fn-t yeare
of his mnicslieH rai^ue of tiadatul, [ 16. Mart.
1603.1 authori/iu^ the Tieatte hetwttue the
commi^ionei'H for both the Lin;j;domes, it it said
(asiustice Waiburtoii uou»il well; that both the
I famous and ancient re. times of Kmjland and
Scotland are tiuw \mted in alle^e.uice and

* loyal I subiectiou in his myall person, to his
uiairctic, and hi- pimterhie f»r tuCT.

llwre wee haue the indgciuf-ut of the parlia-
ment, that there is a Mntie in ulle&r-uure to one
royall person ; and therefore I see not how
wee limy out of imiiiinaiie conceipts, and by
subtile distinct ions straine our wittei to frame
senerall a'lejeancfs lo one and thc?atne royall
person, contrary to su pl.iiue a declaration
made by parliament.

Next* follow eth In* maiesties IVocbnnition

| 20 Octohri* 1601, by which bee assumed to
himselle the nume and stile of kins of deit
tiritaine : in which Proclamation, anionic many
other weighty reason «., thi^ is added tor one,

; ( we h'ni(> n-cciui'd fio:n those that be skiltal
1 in the bns of the land, that immediately

I * vpon our Mi; < '. - ion, diuerse » four aaiicii lit

• ' Ihwi--. nf ibis rr-.ilme are //•*'> facto expired;
. ' as namely, lb*it «)f esruuui! and ot the mnu-
i ' ruli/.;ii;on of the siibjecis.' Ibis w.is not done

■ soflainelv, nor liubily ; but tpou grille and
I seri-'U- delilieraiion, nod aduise : and therefore

v emeth to ini-e to he a matter of great iinport-
aunee, and not to b< li-ilitlv re^ar ied.
| The same 'Jim h of October, t'le-e conunis-

■ siune's hi'i*aniie their Trealie. Of the Krauc
! and in-iiciou* comse whieh ihey held, in de-

I *

biting oftheniHttir then pro|>ouudeil, I will

torhcuie to spei^e : hut for I hi-* point of Na-

. turali/Hiiou uow in (pie^tnoi, their Uesolutiou

iu the end was thus : — That it shull be pro-

G63]

STATE TRIALS, 6 James 1. itiOS.—Uc Case of the rostnati.

[664

poumied to both tin: parliaments at the next
sessions, that an Act te made containing a
Declaration! as follow eto : that nil the subiects
of both the reuhms, home since the decease of
Elizabeth the Lite quern of Enghnul of happie
memory, ;<ud all, tii.it shal be horn hereafter
vmurlhe obedience ot' Ins maies.ic and liis
rov:ill i»r» uf-nv, are hv toe common lawes of
both the i clime-, mid iiiall he for ener, ■una-
ided to obtninc, siitvecde, iiditriti , and possesse
oil InmK, -'),)(!>, and chattels, &e as fully and
amply a> the s>ubitcis of either renluic rtspeo
tiucly might banc done, or may doe in any
sort within the kingdomc where they were
borne. — This, after long debating, ami graue
and dt liberate consideration, was, in the end,
the lie* du; ion of the greater part of the com-
missioner-, not one openly game-saving it. And
diuerse of th-; piincipali iud^cs of the rcahnc
were present at all tunes when the point wa<
debuted. And herein I note the wise and iu-
dicions inline of that resolution, which wnsmt
to propouml to the parliament the mnkiu<; of
a new lauc, hut n declaration of the common
Lute* of both the reahncs in this question —
Now, if wie consider who thee commissioners
were, what I >rds of the higher house, and wh it
persons of the common h mse, ^elected of nil
dejjreis, nnM eminent for their learnm*; :i:i'i
lodgement, as well in ciuile and common law,
as in kno-xlednc, and evpiricnce othtr w-aie*.
Iiccing a«-sis»ed by the grant1 nidges of the
real me : if ti»i>, I say, be well considered, then
this resolution mutt be an omptcd and es-
teemed as a matter of irrcnt and wrinhtv im-
poit.uice, and much to he re^tirded in the de-
ciding of this, question.

Accoruii.j; to this act of the commissioners,
the case was propounded m the next sf-SMoii of
parliament. In the higher hon-e, the ind^rs
were required to deliuer their opinions. There
were thenehuen indje* present; whereof teune
did with one vnifnrme consent atnrrne the hiw
to he, that the Posttmti wfc not aliens, but
natural subiects (one oneiv dis>entin^.) Af'cr
this, the (pKStion was debated in a solcmnc
conference Ikiwccii hoth the houses of parlia-
ment at ^m-rall time", ami at t;reat length, and
with nun h 1 he; tic ; nothiii^ was omitted that
wit or at' could inutrnt to ohicct ajjninst thi«
opinion ; and that w:»s do ->e by men of urcaf
leaiuiuu. and singular judgment ia the common
1 iwe, and c uilf lawe, and by Mime «thcr sientle
men of the common linage, of rate tilts lor their
learn inn, kuowhd«j;c, elocution and e\pt ri- me.
— At th s confi rence the indgrs were present ;
i%ho, after they had he aid ail that was, or con Id
be said, did continue th* ir former opinion*.,
which they liul before dehin red in the h'uhei
liuu-c: three of the chiefe of them deciann^
their reasons, and all the rest (sHuirgouc alone >
concurring in the same. So, here w us now* a
(Efm rail !te»oluti->n by all the uidjjes of the
realm* font: excepted) and that d< liur-rt d, not
pi mutely, but in parliament : which wit horn
more adoe mid luene sufficient to huue decided
Mid determined cliis <jue*tion.

Touching the proclamation, it. was discreetly
and modestly saied by a Jearned gentleman of
the lower house, that it was of gre.it respect,
and much to Lee regarded; but )c t it was not
binding, nor concluding : for, proclamations rsiu
neither make, nor declare laws; and In sides,
that ibis proclamation was not grounded vpon
any resolution of the reuerend iudu/s; but vp«#n
the opinion of some «l;ilfull in the lawes of this
land. — Of the strength of pro- -Initiations, being
ni.ule by the king, by the ndu;&e of bis coun*cll
and itid'^rs. I will not discourse: vet 1 will ait-
monish those that bee learned and studious in
the lawes, and by tkeir profession arc to giue
counsel!, and to direct themsclue*, and others,
to take hecde that they doe not colli einne, or
lightly regard such proclamation*. — And to in-
duce them theietinto, I desire them to looke
vpon, and consider adnisfdly t:!e^c few procla-
uniti .i»s pr«ui>ions, or onlinaunces. which I
wili point out \ntotcem; and ot' what validitie
and three they har.c beene hnulden to bee in
con^trnctinn of hi we, albeit thev be neitlur
ttatuUs, nor acts of pasliament.

]SJ. 1 U. y. in Dower, the detrud.int pleaded,
4 quod, pet ens est do potestate reai* Francis*, et
c reddens iti Fr.mcii ; et proni^um t»t a consdao
' recis, c|uod 1'iullus i\c potentate regis Francis
' respondeat nr in Amdin, antequam Anjili res-
' poadeaiattr de iiirc mo in Franria/ [Fit/h.
dower. 17i).] This the plaintites atturney ciuld
n>)t dciiic; and thcreuptm the iudtenn -ut was,
trie sine <//«*. — Anno '20 Hen 3, Cennine pro-
iiisioiis and oniiinumces were made which were
called iVoui^ioiHs i\hiton, wheie the kin*;
assemiiled hi» arciibi<hops, bisl-op**, e:irle>, and
barons for the coronation ol the kioj:, and his
wife quoriic Fleno.r; and the word* be, • pron-
' i-tini e*t in <'uria iiom. re^ts apttd Merlon

* coram WilliheimoCaiilnui'in.si archie pi-copo.

* er coepiscopi-o, sulVra^ancis stii*j; et coram
' maiori parte comi.um et harnnuin Anglia?
1 ibidem e\istentium pro coronatione ips;u>
4 domini revise! Rliouo'ra? regime, pro qua ouines

* vocati fiienint, cum tract at urn esset de coni-
( muni vtilit:*ic re^'iii 5>uper articul^ subscriptis,
' itapniiiisiimfnit et conces*um,r:im a pnrdictts

* archiepi*cop!st episco is, comiiibus, ct b.ironi-
1 bus, et Hlijs. De viduis primo, cVc.'

Fit/herbert [Nat lir. ,S»».] citeth a pmuision
made anno 1{) II. :$. in ilusc words, l et pro-
4 uioiim fait coram d -initio rr t»e, nrehicpi^enpis,

* episco;is, cninitihiis, et haronihu*, quod i-ulla
' a-sisa vltiniu1, prsp«entatio'iis de ra-tero capi.i-

* turdeeccle-i:s, pra: bend at is nee iL pra'bendis."
This prouisiou was alowe<I and rommut-d lor
hi we, vntill W. 'I, a n in YS Fdw. 1, rap. 5.
wl.-ic!» proiidis the contrary by i \piev»i «»rd».

Anno o K«'. 1, the kini» ami Li" indLe> ma^o
cirlaiue exphiiiatio s «>f the *t t- !e ■ f (»lou-
n stir, winch :»re ealletl Kni^.o; cionc,» s'atnti
(»loec.*tria- ! a* d these he ti r wmo * ;'. •s'mo-

* <i»i:n p« r doiiMiiutn ri iie«n it iu-ln mr-i's mios

* f.icta* sunt fpia?daui » \«l ■•. oat tone*, on luudam

* nrticuhinun >npe:i •■« p'»*»tto>iim.' \\ Inch cs«
plana* ions haue tucr mdcc htcne rece.ued as a
law.

663)

STATE TRIALS, C James I. \ cm.— The Case of the Postnati.

[€6Cf

There is a proclnmntion by king Ed. 3, hear-
ing tc*te Rt Westminster anno 15 Ed. 3. And
iurige Thorpes opinion pa. 39 Ed. 3, 7. both
which I will now forbeure to report, and wish
the •Indents to reade the same in the piiutcd
book is, where they shall see both the elfcct,
and tue reason, and (lie cause thereof; they
are worth their reading, and may infornie and
direct them what ludgement to make of procla-
mations.

Touching the opinion of the iuH*cs some
baue objected (yet modestly, and I nippo-c, ac-
cording to their conscience and vnderst a tiding)
that there is not like legarde to be had of
induct optiiions giuen in parliament, as ought
to bee of their iudgemei.ts in tlt«ir proper
courts and seatesof instice: for, in those places
their oath bindeth them ; but not so in the
other. — 1. To this 1 nn«wcre: the rruerence,
and woorthiiicsse of the men is such, as is not
to tec quarrelled and doubted of, if there were
no outiie at all : lor, if men of *o great mid
ciuiuent places fcarenot God and his judgments,
euen out of a religious conscence, which is,
1 t'neiiura ante peccuttun. et hV.grum post pec-

* cattuii,' it may l>e doubted that the externa il
cereinonie of adding a booke will little auaile.
—3. Their oath doth bind them as much in
the court of parliament, us in t lit ir proper
courts: for, that is the supreme court of all :
and they are called thither by the kintis writ,
uot to sit as tell-clockcs, or idle hcurtrrs ; but,

* qiiod personabter mtersitis nohiscum, ac cum

• cruris de conditio liusiro super d:ctis ncLotiis
1 trnctaturi, vestrumejuc. consilium impeiismi:'
and those ' iiegoti/ be i ardna el viucntia nc-

• gotia reigni, &c.' And their oath, amoiinest
other thinge*, is, th.il they shall cnumcH the
kiiie tmely in his husinesse. - 3. This exception
may rente against ihe judges, as well in enscs
when they silitud giue iudiicnicnt, as iusiici * of
A»»i-es. Nisi I'riua, Oyer and Tcrum.er, and
Gaole Dehuenc, as in this rase of ptmianicnt :
£»rv tlierc they hnue none other oalh bur their
geot-rall oarh. — 1. U becomes v> to est? erne of
ludses now, as our forefathers esteemed them in
tt nit's pa-t • tiir, as they sum t de them in rime
ami place (1 thauke (*oit, and the kin_r, I have
ntnl.ci c;m*e ti> Uare any lor displeasure*, nor
to tialt-r any for faiiuiir : wheivfoic I wid
neither he afraid, nor abashed to speake what
I thilikc:) I s:iy then-lore, tlr.it as ot»r iudgi-s
now su<C4( d tin former iudms, in lime and
pljco : so ihi-y succccdc them, arid are not m-
li-riur to them in wisedori.c. Icarum*!, iirijjritic',
and ;dl ether ludiciou-, and ri li«:ious verities.

Tin n let v» see wi-'it the wi-cdoinc of parlia-
ment* m times pa- 1 attributed lo the judges
opinions* *lcc!uicd m pariiaiui nt ; of which
thtie be«: nuuiv e\;nni>l(". ; hut 1 will trouble

YOU biit With two orilliK'.

m

I Mill not reiueiiibtr KirhaM the lid's time
(of which rome of our chronirh is doe ta)l>e
ttieW, and vuderstaml little) where powir and
Blight of some potent pi i>ons oppressed jnfc-
bee, and fuiihfnl judges, for expounding the.
law soniidlv. ao«i iruelv. — 1. The fust, that!

j will remember, is this, in the parliament 28
. H. C, 10 lanuarij, the commons made suite,
I that \\~. de la Poole duke of Su fib Ike shoind
btc committed to prison for many treasons and
other haiuous cnuics committed by him. Die
lord***, in jiarliainent were in doubt what an-
1 swer to «;iue ; they demaunded the opinion of
. rhe jud^f*. Their opinion was, that bee ou^ht
not to lice committed; and their reason was,
for that the commons did not chaise him with
aoie particular otVence, but v\i(h geuerall slaun-
der- and reporcs: and theielore bccnuse the
specialties were not shewed, bee was not to
bee committed. This opinion was allowed ;
- and thereupon 2!> Ianpari), the commons ex-
| hibitcilcertainc ^]jeciall article* against him, viz.
i tuat he con Dpi led with the l:reuch kin^ to in-
■ uade the realme. i\c. And thereupon bee was
committed r,> the Tower. — '2. In the parlia-
. meui anno 31 II. (i, in the vacation (the parlia-
ment being continued by prorogation) Thomas
| Thorpe the Speaker wa» condemned inn thou-
I sand pounds d lminagcs in an action of tres-
j par>«e, brought against him by the duke of
Vorke, and was committed to prison in execu-
tion for the same. After, when the parliament
was re-assembled, the common* made suite 10
the km1: and the lords, to baue Thorpe the
■Speaki r delitiered, for (he g'»od exploite of the
pHiliament; whereupon the duku of Yorkes
coun-ell ifcchirod the whole case at Urjie. 'Hie
lords demaunded the opinion of the judges,
win tli« r, iu that ca-e, Thorpe ought to bee de-
li uen d out of prison by pnuiledge of |>arlia-
nunt. 1 he judges made this auns\iere, that
they otitihi. not to determine the piiuilcdee of
tintl !;<i'!i C'Kirl of parliament; but for the de-
claration of proceeding in lower courts, in
cases wl;i-re wnttes t)( sirpcrseJea* for the priui-
led^e. id" the parSiamcnr be brought into thrm,
they answered, that il' any person that is a
member of the piirlhiment bee arretted in such
i ti-i «. as bee not for treason or filonie, or for
; suiilie ot pcu'e, or condemnation had before
I the parliament, it is vsrd tint such persons be
' released, and uiuv make ailuiuev, so as thev
mav l-aiu- their fret Home and hbertte, freely to
intend the pailntmut. Ilerrnpun it was con-
cluded, tiiat Thorpe should sidl remaine in
prisiiii m cording to t«el-iwe, iutwuhst, aiding
the [M'iuiicd^e of' pnrii.nnent, and that hoe was
i the Spf ;iki r. W.,uh rt solution \\j»s declared
t«> the commons bv \N alter Moy'e, one of the
i kinn's sericaiits at lawe. Ami then the com-
j inons were c."i:iniimdo.i in the kings name, by
I the tiishop of l/:icob>e (in the .absence of the
; abp. of Ciuiii rbiii y, then ch uiniellor; to chuse
! another Spea'aM*.— '5. In the piih.unent an. 7
j II. o\ a (|iHsii"n i' as moued, whether spiritual!
, persons inijht 1 ce c muented tul'ore temporall
i jmlj;- •» lor criuinall causes. There sir John
, I'iiiiiOl mid i lie other iudges deliueied their
I opnii >?', that t: iv uii^ht and ou^ht to bee so.
; And their opinion was allowed, and main:ained
; by the k;iig and tic lords: and D. Standish,
I who before had hotdden the same opinion, was

delivered from the bishops. And it is worth

i

«]

STATE TRIALS, 6 James I. Hi08.— The Case qftkc Potinatu .

[668

(ho noting, what wordes passed in that case
betuecne the arc!) bishop of Canterbury and
that worthy iudge Fiueux. — 4. It' a writ of er-
roar bee brought in parliament vpon a iudge-
me nt giuen ill tlie King's Bench, the lords of
the higher house alone (without the commons)
are to examine the errours; bur that is by the
aduise and counsell of the iudges, who arc to
in forme them what the lawe is, and so to di-
rect them in their iud cement. And if the
judgement bee reuersed, then commaunderuent
is to bee giuen to the lord chancel lour io doe
execution accordingly. And so it was in anno
17 K. 2, in a writte of errour brought in parli-
ament by the rlcane and chapiter of Lichfield,
against die prior and conuent of Newport-Pa-
nel I, as appcareth by the record. But if the
Judgement bee amrined, then tlie court of tlie
KingVbeuch are to proceed to execution of
the judgment, as it appeareth in Flowerdewes
ease, P. 1. U. 7. fol. 19. But it is to bee noted,
that in all such written of errour, the lords are
to proceede according to the lawe; and for
their iujgment therein they are informed and
guided by the iudges, and doe not follow their
owne opinions or discretions otherwise.

This extraungant discourse touching procla-
mations, and iudges opinions dcliucrcd in par-
liament, and how they ought to bee regarded,
I haue thought materiall and necessnrie, both
in respect of the time wherein wee liue, and
the matter whirh we haue in hand. And these
l>ee (hinges which 1 thinke haue beene to>
lightly passed oner. But if you condemnc it
u* impei'tiiient, I must then ennfesse I have
presumed loo much vpou your patience ; I pray
you bearc with mee, it is but my labour lost,
and a liitle time misspent, if it seem so vnto
you; you are wont to purdon greater fmltes ;
rail it either a passe-tone, or waste-time h*.
pleuscth yon. Now, to leturnc to the c;:*c wc
haue in hand.

The t'ruerall question hauing had this pus-
sage (by proclamation, by commission, and by
debating in parliament) remaiueth yet without
conclusion or iudgeimnt: and as cuctie man
abounds in hi* owne >ence, *o euerv one i«» left
to his owne opini .n : specially tho«»c that were
not sati^ied with the graue resolution of the
iudges in oarluimcnt, which (although some may
tcariue and accompt as bun* op.nious) I must
alwuych valew, and tMcemc u» a reall and ab-
qolute Judgement. Now, I say, this gene rail
question is reduced to two particular case*, and
i« judicially depending in two the highest courts
of itiitirc in this reahue ; and that is by one
i-ompl.iinint against seueruil k fondants tor the
fm'lioulde and inheritance oi >euerall parcelU
ol land : and (as Mr. Solicitor said well) n a
rase, not fained, nor s mil svd, but a true case
belwecue true parties: and being i/usrutio iuris,
utmj'ai'ti, is by both these courts adjourned hi-
ther to bee decided, and d .tennined bv all the
iudges of England, ns the m remise of the case,
gnu the weight and importuunce of it, both for
the present and the future, doth require. — And
the cum being of this nature and qualitie, it is

.not amisse to obserue the proceeding in it : for,
it is woorth tlie obseruiug, aud not to bee for-
gotten. The defendants counsell, men of
great learning, and in their profession inferiour
to none of their qualitie and degree, men con-
uersaut and well exercised in the question, and
such as in the great conference in parliament,
most of them were specially selected and
chosen, for so tliey wel deserved, as mo>t stilti-
cieut, ablr, and tit, us well for learning and
knowledge, as for all other giftes of witteond
nature, to handle so great and rare a question.
And although it hath pleased them of their
good discretion to vse the paines but of a few*
in the debuting and arguing of tlie case at the
barre : yet no doubt that was done vpon mature
deliberation and conference with all the resi-
due : and whatsoeuer the spirites, the learning,
the wisdome, and knowledge of all the others,
vpon long study, could :iffoorde, was put into
the mouth of those few to serue as organs and
instruments to deliver it vnto vs ; * Inch they
haue so well and sufficiently performed, that
they descrue great praise and commendation :
for, in my poore opinion, thewitteof man could
not dcuise to say more touching this question in
lawe than thev haue saied. And whatsoeuer
hath bcenc sithence spoken for that part, it is
for the matter but the same in substance, which
tlie counsell at the barre did deliuer ; though it
hath beene varied in forme, and amplified with
other wordes and phrases, aud furnished with
shew of some oilier strained cases and autho-
rities.

The handling of it by the learned and reuc-
rend iudges hath beene such, a* it may appcare
Lo the world, that eucric one hath spoken his
owne heart and conscience; and hath laboured
by long studie to search out the lawe and
the true reason of the lawe in this rare case;
and so they haue spoken, a* coram Deo ft an-
grim : none, wiih dtsirc to seeme popular; for
nothing ought to beec turn popular? quam Veri-
tas : none to seeme to be lime-seruers, or men-
plea»ers; for the kiim (wlmme vnder Ood they
serue) being pater pntr'ur, and soueraigne head
of ho ih l hoe great voiced kingdom?*, is to them
both, like as the head of a naturull bodv is to all
the members of the same, mid is not, nor cann.it
bee p.uNall more to one than to another. 11 ee
deliteth in tiuth, and desheth it; and without
truth bee cunwt bt-e plta«cd. He rnle:h by
his lawe, and cnmmauiideth his iudges to mi-
nister to all Ins subjects l.iwe an J i notice sin-
cerely, and truely; and equally and indiffe-
rently, without tfuv parr lull inspect.

It was ntucr sc< ne, but that in all rare and
difficult cn-e<i, there haue heme dincrsitie of
opinion/*; but yet without breach ol chaiiiie,
which i* the bond of vnitie. So it hath hap-
pened in this case.- The case hath beene ar-
gued at hunt by tuun teene learned iudges ;
tweluc of tlnm haue concu.ied in iudgement,
but vpou scucrall reason?: for, a» many waves
may leadc to one end of the iourney ; so di-
uerse and seuerall reasons may conduce to one
true and certaioe conclusion. — Aud here I may

669]

STATE TRIALS, <5 James I. 1003.— Tfor Case of the Postnati.

[670

not omit the woorthie meinorie of the late
graue and reuerend iudge, sir John Poph.un,
chiete iustice of the King's bench deceased, a
twin of g: eat wisdome, und of singular learning
and judgement in the lawe, who was absolutely
of (he same opinion, as Ik? often declared, i»s
well in open pailiuineut, u* otherwise.

The apostle Thomas doubted of the resurrec-
tion of our Saviour Icsus Christ, when all the
real of Uie apostles did firmly bclceve it : But
that his doubting confirmed, in the whole
church, the faith of the resurrection. — The two
woorthy and learned iudges that haue douted
iu this case, os they beare his nmiie, k> I doubt
not but their doubt iu;: hath giuen occasion to
cleare the doubt in others ; and so to confirme
in both the kingdomes, both for the present
and the future, the truth of the iudgeuicut in
this case.

Thus my lords, haue you hitherto nothing
from mee but Amen, to that which all the
lodges (snuing two) haue suied; ;.ud much mere
you cannot expert from nice: yet, since I must
giue iudgement in this case; und I suied in
the begin mug, that I would render the reasons
of my lodgement (for that is the cour-c of argu-
ment I must houlde); I will now deiiurr vnto
you, what are the spec in 11 and princ'pall rea-
sons that first haue induced mee, and still
moooe mee to houlde the opinion that I doe :
and as I goe, I will indeuour to cleerc some
doubts and questions, that partly in the con-
ference in parliament, and paitly otherwise, I
haue heard made; not onely touching this case
it selfe, but aUo touching the frine and manner
h'jw it :s to be decided and iudged. — '1 he case
i» rare, and new (as it hath heene often saicd) ;
it was ncuer decided tcrtuinis tenninuntibu* ;
it nasneuer iudged by any statute lawe, which
is a p»siriue lawe; nor by iudgeincnt of the
lodges of the common lawe.

Now, the first question i>, as some would
haue it, how it is to be indeed, and by what
Jawe; and haue wished that it might haue stav-
ed mtill the parliament, und s> hee decided by
Crliaiuent. They that make this donht, I will
tbein demurre, and die in their doubts: for,
the case beeing adiourned hither before nil the
iudges of England, is now to be indeed by them
according to the common hue of England ;
and not tarrie for a parliament: for, it is no
transcendant question, but tint the common
la«c can and ought to rule it, and ouor-rnle it, as
iusttce Williams said well. — Ihit then this qurs-
lion produceth anothi-r; that is, what is the
common lawe of Englund ? whether it be ius
MCriptuki, or non scriphtm ? and such other like
•mcetie* \ for, wee haue in this ;«ge so many
ones' i mists ; and qua modo and quart- , are !?o
common in most mens inoutlu s, that they Irnue
neirher religion, nor lawe, nor king, nor conn-
acU, nnrpoiicie, nor government out of question.

And the end ihey haue in til is question, what
is the common lawe, is to .shake und weaken
the ground mnd principles of nil *< -mernnicnt :
vod in this partir-ulnr qiw«tin»i i#f rhe law of
fingUnd, to ouerliirow tl--r hw whereby this

reulme bath many hundred yeares beene go*
ucnied in all honour and happincsse : or at
least to cast an aspersion vpon it, as though it
were wcitLc and vnccrtaine. I will therefore
declare mine opinion in this point pluinely and
oniitidently, as X thinkc in my conscience, and
a* I Jinde to be sutliciciitly warranted by ancient
writers, and good authorities voide of all ex-
ception.

The common law of England is grounded
vpon the law of God, und extendes it selfe to
the origmall lawe of nature, and the vniuersall
lawe of nations. — When it respeeies the church,
it is called Lex Kcclesiac Anglicaux, as Magna
Chartu, ca. 1. ' Ecclcsia An^licana ha heat

* oin uia sua iuia iutrgru et ilimsa.' — When it
respect es the crowne, and the king, it is some-
limes called liex Corona:, as in stut. 25 Edw. 3,
cap. 1. ( Let Corona* Anglhe est et semper fuit,
' cic/ And it is sometimes called Lex Kegia,
as in iicpistio to. 61. * Ad iuru rcgiu spectat :'
and ' ad couseruationcm iurium corauas nostrs*,
4 et ad iura rcgia ne depcreant, &c* — When it
respect es the common subjects, it is called,
Lex Terra* ; as in Magna Cbarta ca. 20, * Nisi

* per legale indicium parium, vel per legem
' terra*.' — Yet, in all these cases, whether itre-
spectcs the church, the crown, or the *>ubiects,'it
is comprehended vnder this generall tcnmie,
the common Uwes of England : which although
they bee for a great parte thereof reduced into
w ritiiig; yc t they are not originally icgrs script*.

'Ibis I lis^t learned of the late lord treasurer
Burleigh (whose honourable meinorie England
can newer forget; and hearing it from him, I in-
dcuored by my priuate studie to sntislie inysilfe
thorowlie in it. And who^oeoer shall well con*
sirler the lawes of England, which were before
the Conquest (whereof wee hsiiic some remnants
and patches) or since the Conquest vntill Mag-
na Chartu, anno 9 il. 3. will make little doubt
of it. — lu II. y's time Glauuilc write: h thus;
' leiies Aut;licaiKis licet non siriptas, leges ap-

* pclljri non videtur nhsurdum.' — And in Hen.
S's time Itatcton writeth thus : * cum uutem fere
' in omnibus regionibtis vtaniur legibus et iure

* script o, sola AiiLha vm. est in snis finibus, iurc

* nou scrip to et coiisuetudine ; in ea quidem, ex

* non s«xipto ius ve nit quod vsus comprnbauit.'

Rut I may not agree with ftracton, that
'sola Anjilia vsu est iure non scripto:' fori
find that the c'uu-t, and the greatest learned
writers of tl.c Ciuilu Lawe. both auncieut and
of thin our time, floe hould the same opinion,
touching the Citiilc Lawt; itselfe, for thus they
write: * ex non scrip to ius venit quod vsus ap-
probnuit.' And thus ; ( ins riuile dictum ex
1 tmit script o mi rum est.' And, * ius non scrip-
' turn dinusr <onsueti:ilo, non quod M:ripto per-
' petuo careut, hoc cuim f;d«uni est : nam et
' coiisiietudiiics in irii'inoriam constant iorem
' rcdncuiitur in scripturAm, vt caiicni qnoq.
' qn.e tine senptura pt-rlicinntur : sed nou

* scriptom ii:.- t>i : i«l tst, quod a scripture vis
' eins imii i-o-pit m.*c pendent.' So, hereby it
may *pi»iM«e hiw i:i tliis wee concurrc with
the Cmiie Law.;.

TATE TRIALS, 6Ja*i

Hut hercujii.ii tlii-si- t|iic5iHnu>t* nirjiic 1111
nlllrr iJUettlori, '-I' I I : !iv (i n liiKt- in- Dill

,■■ . n I ~TVi Uhs

lit -■ . . .- ' i :■ n

I

, i !■■. , [WO
ii::i:ii.' pill .

■ ■■ mtnitni, kail

i. ii- ., .r_.ini-( ivlnuii theiv IITUIT
■: ■ ■ : ■ ■ ,

■

the fern iii to ml ic .

■ preferred ■!" rMpecte

, <il ; II'. tl'l.mil III ilmvi'i 01 liv r I - .

■ ■: ■. I j . ■ i roe in- . no ih ;,i.i itu dI th
kiag^g pCfflah bj inJun lie, &e - -■' I
is, where there be iw

......

these In' tint ■ iirljn n i ■ ■

■ ■

in these Bractan ■■

.i.iiii, i, ! i-:l-ii :>(l II Iliril illflll i.

'Coram perierufiniitt; facm ipsonnii, eonrilia,
■ niiiiKini redigeudu eotn-
■ nilnui '

And before [be t eaqaeu, kit

■ >ki 'i. I" l in nli~. !■• I ■ ■
Deai ta luilm. mm : » ni L.<> ■ .* .

lite, iii ciuisiei Liii:'mkI. .v iudkioas nnil
learned ubwnier'.l'niiiie|ijiti«, il. il
is eiplii in. i i* urbi

M-.'\ it, Ri. ft, ' we i !■:-.

Rrl. i, '.ill
' our lane is -iiiid-l !■■

B li»'- . bill

Wltei

I i

Si
.ii. !nl ■■>:., KuittKijL reasoned] thus; ' (in
' L»f it m L tinne wide, mid to

' iilwaiusitm 1 1 : ■ ■ i . -,i . !.»■-■ ■'—Ilia: II, (i,

t, 22, A«ue rut i

• li.itli hill nll'.Hlll.li in ill-.; I.ii,.

* Crt.itUIS, ''I.

In II. I, L.ll.. I, i-!

■fieth thai j * it h uod fui v» tu doe

■ uii ii.nh i.iii .■■>... i ;,,

■ in beepe o

' Knottier dny the conn

■ ■■.nun- precedent) bi

Willi liullirr ; ■ tree

■

■

■
■

■

ituici.

3. Tlie third

>< iii-, then ■■•
■

There i- ■ rule i

F.i nmcordtnt rleitei <b brnt JMmJir,

■

■ ■■■It ii';i. inn >*il

...illlirl. Of nil

!. Anil il.'vt

. i in the Eoune of ihi ' '

: . ■

■ .,..1 1 II in... .' i
■

■ ... t, had "tli'nti'n

. I :.il I- : .

■

* leru em ■

., eominili cfaa

* lieote mbeodtni tore el ■hniliindifMteil

■ id", ii,, ii rf|n .
' i-.!....ri in . .

. in |inilinri>rrnu

* i-i rib uitiii ■

■ liil'ilhiii. ■ rl ,1 .■ . .||, ..'il

■ ■ :

. il Ii' lll.\ :

rli .n , Be

i In i !i'iLi'< "iiili.' iii.r, ii mi m ibe nue hi

■
■

■ ■
. ■

■

"ii ■-, .1 >'■■! ililj ii. ■

|i<lllnlll.l:lll •

ciuile Inwe;

673]

STATE TRIALS, 6 James I. 160?.— The Cane of the Postnati.

[g;*

1 consuctudine recnrrrndiiin nd rationem.'
An«i so from the iudges wc »h ill haue respunsa
pntifentum lo decide till such new cases and
questions. Aud according to this rule, all such
new doubts and questions haue bet ne rtsolued
and decided by the graue iudges in former
limes.

But here, before I pmceede further, \ am to
make a suite, which i* this : — That whutsoeuer
1 Iwue spoken, or shall happen to spcake of
the riuHe lawe ; or whatsocucr I shall rite out
of any writer of that law, I pray fan or of my
masters that professe it. 1 acknowledge that
lawe to be auncicut and gcnerall in many parts
of the world ; mid I reuerence the professors
of if, aa men of great lea ruing, wisedome, and
iudigetiieiit. 1 professe it not; I haue learned
little of it ; but in that little I haue found that
in the real! nod essential 1 partes of iustice, the
ciuile aud common lawe doe in many things
concurre, though they differ much in the forme
and manner of proceeding. And that which I
shall haue occasion to produce of that lawe,
will bee to shew how the common taw and
ciuile doe agree in one reason and iudgement
in those things which 1 shall speake of.

Yet I most kike libertie to say, that neither
m Spaine, nor in France (those two irreat mo-
narchies) it is not generally recciucd nor al-
lowed as u concluding and binding law. — They
cake there the reason of it onlie as a direction
to their proceeding and iudgement : hut to
produce or allcadge it us a concluding or Jbind-
iu£ law, was no lesse than capitis pirna.

This I inuke not of my selfe ; for, besides
roiiitnuu practice and experience, 1 haue an
honest and substantial witnesse, master Adam
Biacwood a Scottish man, a man of singular
learning in the ciuile lawe, who defeniieih in
like manner the lawesof Scotland, [Blacwnnd
cap. 10 1 as appeared i in his learned booke in-
tituled, Pro Itegibus Apologia, written by him
against a seditious Dialogue or Libell made by
Oeorge Buchanan, Ue lure Kcgniupud 8cotu>,
inhere lie tells him, ulind scrptrutn, uiiud plcc-
f/iua. But it is not aniisse to recite his ottne
words, which are thus ; * l'nilippus cognomen-
1 to J'ulcher, cum Lutetue suprema! iurisdic-
' tionis curiam institueret, earn llnmauo iure

* solo tarn esse deciaruuit : in eainq. seiitcntiam

* Tetus extat eius curia; d'.'cretum, ne causarum

* patroni Itomamuum legum uuctoritutem pa-
' trie legihns oppounut. Sed cum ill* bono ct
' ;equo niti videittur ct prohuhilcui vtilitutis

* publico: causani «*outineret nos (arum vtimur
4 haud imperio, sed rationc, cui omiies homines
1 nature pKFhcripto subijeiuutur. Quia itsi
1 quid aduersu* ratioui -in legum Romanaruin
c perperiim «e teuierc iudicatum cif , id canuu
1 mullis pumis huud a:.stimatur, s:d vel r»ricici-
4 pis, vel superiorismagiMratu* urbitiniu. Nam

* cum in publici muueris partem admiuimur,

* et enncepcis verbis iunugurumur, solemn i >a-
'crameato regiaium et muuicipiaiiuin Iciuiu
-**9t« morum obseruationem, nulla Romani
1 lnm mentkine, spoudernus. Apud HUpnnos

capitis pctuuni ijt iudiclnw Icgimut, qui Ko-
VOL, ii.

' inaiiarum legum uucd'ritatem vel in foro lau-

* darent, vel in pulucre schulustico profit tnn-

* tur. Sed si quid occurreret patnjs Jegihu* ac

* moribus iuileiiuitum quod iudicunti religion-
' cm adlerrct, vnicum cr.it cximendo scrupulo
' regis cousulcndi icmcHium. Aluricu* Tolosa;

* reguaus, idem (iothisiiupcruuit, vt si quisad-
1 nersus ipsiuH Icl:c*s ciuile Komaunrum ius ci-

* turet, tun ere factum mnrte lueretur.*

Now to returuc to that which 1 haue touched
before, I say, that when there is no direct lawe,
nor precise example, we must ' recurrere ad ra-
' tionem, et ad rcsponsa prudentum :' for, al-
though ' quod non lego, non credo/ may bee a
true mid ccrtuinc rule in diuiuitie ; yet for in-
terpretation of iawes, it is not alwaies so : for
wee must distinguish hciweene * fidem mora-
'■ 1cm,' and ( lidem diuiuam,* or else wee shall
confound many things in the ciuile and politiko
gouemcnient of kingdomes and Mates. For,
the first precedent, which wee haue now, had
no precedent wheu it began ; hut as Tacitus
suitli, * qwe nunc vctusti^ima creduntur noun
4 fuerunt ; ct quod i iodic exemplis tucmur. in-
i ter exempln futuium est/ And to tho»e that,
hould, that nothing is io bee d»ue hut by for-
mer examples, Horace spraketh thus ; ' (> imi-
' tatores seruum pe<:us :* and Cicero saith,
( non exeiupla maiorum qiia:rcnda, sed cousi-
' limn est cjium a quibus cxcinpla uata sunt
' explicuudum.'

Thus hath iustice becne Huolv administrcd in
England, and thereby tiie kin us haue ruled,
the people haue beeue gouerued, aud t!ie
kingrlome hath flruir^hed for many hinuhed
yecrts ; aud then no such busie <]<ic*ti<?n:s's
uioucd any quarrell against it. — Tlm-> haue all
douhts growing vpon Magna (,'liaita, and ('har-
ta de Foresta, made in king Henry the thirds
time, and vpou the stauit.es of \VeMinin. 1,
WeNim. •>, Wot in. U, ami many other statute*
made in Kdw. ]. time: and vpou lYuunuaiiua
Uc"is. and manv o:lu*r statutes made in F.d. '*.
time, becue from time to time expounded; and
so of later times, tin- statutes of' tints, of \s<s,
of will es, aud muiiy more. — Thu* ai>o h.aiu all
doubts and cases, whereof i here uas no statute
or positiue lawe, heenu ab\aioN expfjimded :
for such are most of the ca*es which wa- haue
in our yecre-bonkes, and hnoUs of reports,
which are in etl'ecl nothing bet rttjtuisa pru-
dentum, as iubticd C.'rooke did tnulv say. —
Vpou this reason it is, that some hiwi <», as Mell
statute lawe at common law, are ol>snlc(e aud
wuriic out ul' vr : for, all human;' lanes are
hut icges tempnris : curl the wUedomc id" the
iudge^ found them to hee vuuiceti' for the time
they liued in, although \ery <;ood and nece^a-
rie for the time « heroin thev wt iv in wie. And
therefore ii i» *»"ii«lo ' hi;ei luuir.in.i' na^runt ur,
' wgcut,(t niouuiifur, el habciiL oitiiM, siatuin,
1 et occasion.*

By this rule alo, an! \po:i this reason ir h,
that (d(cuti]i>v-< aun*. icnt Ian cm are c!ia:wvrf hy
iulcrprtta'i'iu ol llu- lud^es, as well in c.i-r*
crimiirill a^ cnide. — In ciuuiuatl ease* il.e law
w:\bToluntu: rvjutubitur pro I'mio ; tut it i*
'J X

ti75]

STATE TRIALS, G James I. loOb\— 77* Case cf the Postnaii.

[«6

not so now, sauing in treason onely. — In un
appeaie of inaiuie Brkton, fol. 48, saith ' soil
' le iudgement, que il perde nutiel member,
* come il auer tolle a le plainti'e ;' but it is not
so now. — In uuncient tune, one present, aid-
ing, comforting, and assisting to u murder, was
tuken to bee no principal!, but an accessorie,
an it appeareth M. 40 Edw. 3, fol. 42. ct 40.
Li. Ass. p. 8. and p. 25. But now in that
case he is iudged a principall. And so it was
ruled by all the iustices M. 4 Hen. 7, 18. and
s>> Plow den arlirmetli the luwe to be, in his
Commentaries fol. 99. and 100. — In ciuiie
causes in uuncient time, the lawe was lioulden,
tliut hee in remainder in taile could not haue
an action of waste, nor be recciuecl vpon de-
fault of tenant for life : but afterwards, the
lawe was often judged otherwise ; and mo is
the common experience and practise at this
day. — In anno 40 Edw. 3, 28. Fynchden, chiefe
iusticc of the Common Place, saith, that in an-
cient time the vicar could nut haue an action
against the parson ; but hie saicth the con-
trarie is vsed at lbs day, which is the better. —
In ancient time a disseisee could not enter
vpon the feolfee of the disseisor, for sauing of
the warranty ; but for many yeeres the lawe
hath beene lioulden otherwise, and so the com-
mon practise yet remaineth.

By this rule it is also, that words are taken
and construed, sometimes by extension ; some-
times by restriction ; sometimes by implica-
tion ; sometimes a disjuuetiue for a copulatiue;
a copulatiue for a disjuuetiue; the present
tease for the future; the future for the pre-
sent ; sometime by equity out of the reach of
the wordes ; sometime words taken in a con-
trary sence ; sometime liguratiuely, as conti-
nent pro content oy and many other like: mid
of ail these, examples be infinite, as well in the
ciuiie lawe as common lawe.

And oftentimes the reucrend iudges haue had
a graue regardc in their proceeding, that be-
fore they would resolue, or giuc iudgement in
inch new cases, they desired to consult with
the kings priuie counsell ; as appeareth in di-
uerse cases in king Edward the third his time.
— II. W. assaulted Adam Brabson in presence
of the Justices of assise at Winchester, [39 E.
3, li. As. p. 1.] tor which A. B. complained by
bill before the said iustices, ulledging this of-
fence to bee in despite of the king and his jus-
tices, to his dammage of 100/. II. W. pleaded,
not guiltie ; and was found guiltie, and dam-
mages taxed to 10/. Thereupon the iudges
awarded him to prison in the sheriffs keeping.
And for the tine, and th;it which should be
further done fur the kinu, for the assault done
in the presence of the iudges, they would haue
the aduivo of die Lings counsell : for in a like
case, [M. 19 Edw. 3, Judgement 17 I.] because
R. C did strike a iurour at \Wstmiu>UT,
which p.'.>sed in au enquest against one of hi*
fi iends; it was adiudged by all :"he counsell,
that his right hand shouM be cut off, and his
lands and goods forfeited to the king. These
be the words iu the bookc.

I11 this case I note three things.— 1. The
iudges cousulted with the counsell. — 2. They
haue a like case before when the counsell was
also cousulted with, viz. anno 19 £. 3, and .yet
tliey would not proceede in this case before
they had againe consulted with the counsell.—-
3. That before anno 19 Edw. 3, there was no)
like ense nor precedent for such a iudgement ;
and therefore the iudges would not of themseluts
pronounce that heauy iudgemeot before they
had conferred with the counsell touching the
same. And after they had the opiuion and ad-
uise of the kings counsell, they proceeded to
that iudgement.

Thomas Vghtred knight brought a forme-done
against a poore man and his wile ; [M. 39 Ed.
3, 35.] they came and yeelded to the demaund-
ant, which seemed suspitious to the court :
whereupon they examined the matter, and staied
iudgement, because it was suspitious. And
Thorpe saide, tliat in the like case of Giles
Iilackct it was spoken of in parliament : and
wee were commaunded, that when any like case
should come, we should not go to iudgement
without good uduise. Wherefore sue to the
counsell, and as they will haue vs to doo, wee
will ; and otherwise not, iu this case.

Greene and Thorpe were sent by the iudges
to the kings counsel [M. 40 Ed. S, 34.] (where
there were 24 bishops and earles) to demand
them, whether by Jpe statute 14 £. 3, ca.
6. a word may be amended in a writ, as *ell
as a letter or a sillable; for, toe statute
speakes but of a letter or a sillable ; aod it was
answered, that it may well be amended :
for, there cannot be a word without a sillable ;
and that it was a nice question of so sags)
men.

Thus arbitria iudicum and rtxpontu prudtntum
haue beene receiued, allowed and reuerenced in
all times as positive lawe; and so it must -be
still ; for, otherwise much mischiefe and great
iuconuenience will ensue. For new cases bap-
pen euery day : no lawe cuer was, or euer can
be made, that can prouide reroedie for all future
cases, or comprehend all circumstances of hu-»
mane actions which iudges are to determine.
Therefore, when such happen, and complaint is
made ; what shall iudges doc ? Shall they giue
no remedie to the prirtie grieued ? Shall they
stay for a parliament ? Interim patitur iutlus.
'1 hev must therefore follow dictumen rat ion it :
and no giue speedie iustice. And in many mat-
ters of material! circumstances they must guide
thcmselues by discretion.

As in iudging vpon presumptions; todiscerne
which be prd*umptioiics tfmerarUr, which pro-
bahilcs, which violent a. — So for time: what is a
conueuient lime, ami what not. — So for waste ;
what i- waste punishable, and what not. — So
for tenders of money ; what is a conuenient
place tor tender of money, and what not : and
what is a law full tender, and what not. — So for
disparagement ; what is a disparagement, and
what not : and so of other tlie like cases, which
are infinite.
If it be said (for so some bane said) that if

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STATE TRIALS, 6 Jame* I. 160$.— The Case of the Postnati.

[679

this be thus, then the common lawe of England
is vncerten ; and so the rule of iu*tice, by which
the people nre gouerned, is too piistblf, ami too
weake, and vncerteu. — By the same reason it
may be said, that sill the lliwos of all nations are
vncerten: for, in the ciuile lawe, which U taken
to be the most vniuersall and gcncrull lawe in
the world, they hould the same rule and order
in ail cases which be out of the direct words of
the lawe ; and such cases he infinite ; for as I
saide, new cases spring euery day, as malice and
fraude increase! h. And since the Roman em-
pire began ne, most of their laws ix*? either
edicta prinripumt or arUitria iudicvm, or r«-
ponta prutUntum. And in their Judgements
they are guided by arrests and former judg-
ments, as may appeare in the books of many
chat haue collected such arrests. And they at-
tribute so much to such former Judgements, that
as Prvsot eqnalleth them to n posit iue lawe, so

Tocerttn) sometimes thev relic \ pon dot- tours
opinions dehuered in ti.eir prelections and trea-
tises. And when they finde thein varying, and
differing one from another (as sometime* ihcy
doe) then they pre for re that wh-ch is commnmor
opinio : and so in good reason they may : for,
* pluraliras idem sentieiuiuin semper supenit;
c quia faciliiis inuenitur quod a piuribus quaeri-
1 tur.'

But to conclude this point, T would aske of
these noueiists, what they would haue done in
Si bill Bel k nappes case, if they had liued in
Henry the fourths time ?

Sir Robert Belk nappe, that reuerend and
learned iudge, [M. 'i II. 4, 7.] of whom suwlrie
noble und worthy person?, and some now of
great and eminent place in England, are de-
scended, was banished out of the realm c, (rcle-
gotnt in Vatconiam) not for any desert or of-
fence of his, but by the might of his potent ene-
mies, and malice of the time. The lady hi* wife
continued in England ; she was wronged ; she
brought a writ in her owne name alone, not
naming her husband. Kxception was taken
against it, because her husband was lining ; and
it was adiudged good, and shee recovered ; and
the iudge Markehtim said ;
• Eoce modo minim quod fcetnina fert bme re;i*,
1 Mm nominando virum coniunctmn rohorc legin.'

Here was a rare and a new case, yet it was
not deferred vntill a parliament: it was iudged,
and her wrong was righted by the common law
of England, and dial * ex arhitrio ludicum, et
1 es responsis prude n turn ;' and yet it was
counted mirum with an ecce.

Now Co apply this to It. Cnlnincs case. Hi*.
ease is rare and new : so was that. There is no
direct law for him in precise and- expresse
learmes; there was neuer judgement Ik- fore
touching any borne in Scotland, since king lames
beganne his happie ruignc in England ; hee is
the first that is brought in question : so there
was no direct lawe for Sibil! Belknap to sue in
bar sum name without her husband, who was

then liuing ; nay rather there was direct lawe
against it. Yet bv the lawe of Inland slice
had Judgement ro recouer with uii cere modo
mirum : so by the lawe of Kngland iudgement
ought to bee giueii for Robert Calume, but not
witii an tree modo mirum ; but vpou htnmg ar-
guments deduced a multibus, and (X diet amine
rutiouis.

But before I come to those arguments, I wil
vse a few words more touching some rules which
I haue read for the interpretation or* hiwes. —
There is a g.aue and learned writer in the'iuile
law that sett* til downe fhu.e wines and tonnes
of inter[>retat]ou of limes : thai is, tirsr, initr*
pnfut io h >st orica ; sect > nd I y , efymofofuca ; I h i rd-
ly, untj/n«icu ; fourthly, pructuu. — In the argu-
ment of thit case all thee formes haue beene
vsed, and l:irj»#-ly handled : and the tw i fir*t be
those that sec me but light to me, uud then tore
in mine opinion haue beene too much stuode
vpou, and ouet weighed.

For the hint'irirull interpretation, it is nlwaies
dai ke, obscure, and vncerteu, of what kiugdoine,
coniitrey, or place soeuer you speukc ; I doe
■alw.uos and omly except the diuiue histories
written in the bible. — Liuy saith, 4 iu tant:i re-
4 rum vetustntc multi temporis erroie-* iinplicnu-

* tur.' — Saint Augustine speaking of the sup-
posed bookes o'* Henoch saicth, ' linri isti ob
4 nimiamantii|uitatein reijeiuntur/ — Wherefore,
for this parte let this suitice, whether iu the be-
ginning there were one or se.ierall kingdomes in
Great Briiaiuc; or one or sctiernl monarches
and kings of these two great and famous king-
domes in Great Britaine. The kiiv our smie-
raigne is lawfully and lineally descended of the
first great mouarchs and kngs of hoth the kii.g-
domes; [Fergus, Inns.] and that by so long a
continued line of law lull disceut, as (herein he
execedeth all the kings that the world now know-
cth ; and therefore to iirpiiie further of his-
torical! knowledge in this case, I hould it need*
lesse.

For the etymologicull interpretation, there
hath beene very much saied, euen as much as
wit and ait could deuise. There haue beene
alleadgcd manie definition*, descriptions, dis-
tinctions, differences, diui*ion«, subdiuisions', al-
lusion of wordes, extension of wordes, construc-
tion of wordes ; and nothing left vnsearchud to
finde what is iigeantiu, ulleffiantia9tfidftt obrdi-
tntia, tubitctio, subditi ; and who hee ubnrigi*
net, indigent, alienifieiur, uducnticij, deiiizati,
&c. And much of ibis hath beene drawne out
of some writers of the ciuile lane; amongit
whoinc the etyumlo^icull interpretation of the
words //£< its, and U^tantiu, is us vncerten
and doubtful!, as itii with our coinmon lawyers;
and so vpou any of these their cannot be any
certen rule found for iudge* to iudge by, espe-
cially in nc w and rare ca*es.

As for definition, Ylpwn tencheth ms, * omuis
4 detinitio in mre ( mill est periculosn:' and it is
said, that 4 detiiiitio est duplex : propria, qua:
4 constat ex genere, et ditteieiitia : impropria,

* qua? et descriplio vocutur, et est qturlibcl rci
deiignatio :' 90 derinition und description are

679]

STATE TRIALS, G James I. 1G0S.— The Case qfthe Postnati.

(GftO

often confounded, and both vncerten. Then,
since both be \ncerten and dangerous, 1 will
leauc uc.;h, and seeke a mure certen rule to
Judge by.

As for etymologic of words, I agree with him
which saiedi, ii is * leuis et fallax, cl plerumque
' ridicula.' [t is a pedant graminaiiaus fault,
Marcus \*arro and other* haue becne noted for
it. And if you examine the example* which
some doc bring, you will uerceiuc now ridicu-
lous and vaine it is. So this rule will not seme
to tinde out that which wee secke for. These
bee but l tendicuhe verborum, et nucupationes
' syllabarum,* as one callcth them : it may huue
wine vse, and serue a turne in schoolcs, but it
i* too light for iudgemeuts in lawe, and for the
scutes of iusticc. — Aquinas setteth downe a
more ccrteu rule, ' in tocibus v id end u in, non
' tain a quo, quain ad quid sumantur.' And
words should be taken sr./nu curunti : for vse
and customc is the best expositor both of lawes
and worries, ' quern penes arbitriuui et ius et
' norma luqucndi.' —Where-fore, of the many
and d incise distinctions, diuisions, and subditu-
sions, thai bane beeue made in this cslsc, 1 will
say no inure but, * confusum est qnicquid iu pul-
' ucruui ki'aum est:' and will conclude with
hi>hop Jufcl ; 4 a man may wander and misse
, * his way in mists of distinction?.'

Then kMiing these histoiicill und ctymologi-
call iuterpi etui ions, ami these curious und sub-
tile distinctions and diuisiuns, I say, ligcantia,
or alU^iuutid, viider.<tood *enstt cunruti* is vin-
culum jiiiu et obcdtLntU, as iustice Daniel said
well. And lice Lhat is borne in any of the kings
dominions, and vnder the kings obedience, is
the kings lit-ge suhim, and borne * ad hdem
' reslis' (i'or that is the proper and ancient word
which the lawe of England hath vsed ; * ad h-
• dein regis Angliffi,ad lidoui regis Francis)' and
therefore bee cannot bee a stranger or alien to
the king, or in any of his kingdomes ; and
by consequence, is inhabit d to haue lauds in
England, and to sue, and be sued in any reall
action lor the same. — And ligcun'm hath some-
times a more large extension : for, hee that is
mi alien borne out of the kings dominions, \ndt*r
the obedience of another king, if hee dwell in
Kill! land, and be projected by the kin«* and his
lawes, Lee ouet.li to the king the duetie of alle-
geauce ; and so hee is ligatus tfgi, and ligeus
regit : and if hee commit treason, the indict-
ment shall U 0 * contra ligenntia* suae debituto,'
as it was. in Shirley the Frenchmans case : yet
is hee not the kinus snhicct : lor, hee was not
borne ' ad (idem regi>.' But, this is not that
Jigcnuce wliich wee must iinde : tor, in a true
and 1. m full subicct, ihere must bee subuctto,
lid- i, tt oln.di€Htta : und thu^e cannot l>ee se-
iicrcd, no more than true faith and charitie in a
tr,;e Christian. And htc that h.ith these tliree a
nut mil ale, ia It fit us ttgtt, and cannot bee a
atranjer or alien to the king, or in his kingdomes.
And that it is .««>, may he pioued by the rule of
the other t\o interpretation* of lawe ; thut is,
Muufaiiwit, ft p/miua.

King lames hath now tlic kingdomes of Eng-

land, Scotland, and Ireland, and the isles of
Gerusey and lcrsty by discent; nil these be«
his dominions, and vnder his subjection and
oImsiIk nee.— King Ilciuy 2, had England and
Normandy by discent from liis mother Maud
the empress; and Aniow and Maine by discent
from his father, O. Plantagenet; and Ireland by
conquest. — Henry tt, had England aud Ireland
by discent from "his grand lather Henry 3; and
Aquitany by discent from his grand-motlier
queene Elenor, wife to king Hen. 9, and
daughter to the duke of Aquitany. — Edw. 1
had all the same by decent; and parte of Scot-
land by conquest.— Ed w. o and Edw.3 hud all
the suiuc by discent also : aud besides, Edw. 3.
claimed all" France by discent from his mother
queene Isabell, aud had the most pan of it in
possession ; and so had Henry 5 and Henry
6 also.

Now if in these kings times, ^ubiectes borne
in those countries, being then vnder their obedi-
ence, were no aliens but capable of landes in
England : and if at this time subjects borne in
Ireland, or Gernsey and lersey, be no ulicns,
but capable of lands iu England ; then, by an
aualogieall interpretation, why should not »ub-
iectes borne in Scotland be at this time in tike
degree ? For, in proportion, and in liken esse,
and conueniencie, there can bee no difference
at ail.

But whether the subiccts borne in those
countries in the time ol rh<v*c kings were then
capabie of lands iu Enghiiid us nauirall sub-
jects ; or wero deemed aliens, is the question :
and therein inter eUtiio pructica is to bee con-
sidered ; and so the case is brought to be ex-
amined per similiu. And in diuinitie ' praxis
* sanctorum est interpret pruiceptoruin.* — Now
then the question is, whether the kings suluccts
of England and Scotland, thut be Pos'-nati,
may be resembled to the kings subiecis of Ire-
land, and the i>U-s of Gerncsey, &r. as now
they bee; and to the subiectes of Norniandie,
Aniow, and Ciascovne, and pa.tc of Siotluwl
in former times, when the same were tiie
dominions, and vnder the obedience of the king
of England ; tor 1 speakc ulwaies, and would
be vuderstoode of kingdomes and dominions iu
possession, and vnder obedience, and not ot"
those where in; to the king hath right, but hath
no possession or obedience, I houldc, thut in all
points material I concerning this question they
are alike, thouuh not in ail things : (for, then it
were idem, and not simile : and this can not bee
better vuderstoode, than by examining the ob-
iections to the contrary : which in substance
may be reduced to foure in number.

Fiist for Ireland, it was gotten by conquest,
and the conquerour may impose what lawes
hee wiil vpon them : but it is otherwise ot kiug-
domes conuniiig by discent. — This is a cuf*-
ceiptcd diiVereuce, and lacks the foundation ot"
reason, and hath not the true parts of a differ-
ence: for those that arc borne in Ireland, and
those that are borne in Scotland, are all alike
for their birth within the kings dominions, ami
me borne vnder the like tubiectiou and obe4i>

GS1]

STATE TRIALS, 6 James I. 1608— The Case qfthe Potinati.

[68*

ence to the king and hour the like bond ; nay,
cuen the same Urnd of allegiance ; dhat is, they
art borne ad Jidem regis, — Besides where it is
said, the conquerour may impose what laws
hee will : then consider how it was in the in*
ierim before king lohn gaue lawes to Ireland.
— Nay, which is more, I aske whether the
cunquerour of Ireland can giue new lawes to
England, and make Irishmen to bee as natural I
home subiectes in England (if their birth-right
doe not giue it them) which before the conquest
tbey were not? For, that is properly the ques-
tion. But if anv difference bee, ihc case of
descent is the stronger: for, (as notice Velver-
ton saide) that is by an vndoubted title made
by la we ; the other by a doubtful I title wonne
by the sword.

But leatic Ireland gotten by conquest ; what
say you to the great kingdouie of France;
which Edward tf bad first in right by htwtuli
descent, and after in possession by triumphant
conquest; and which Henry b' held after in
possession by descent? Was eucr doubt made,
ivticther the subiects borne there, so long as it
was in tubiection and obedience to the king,
were capable of landes in England?

I will now turne the case, and aske another
Question; if king lames our soueraigne had
ni>t beeuc king of England by luwiull descent
(as now hee is) and alter Scotland hud des-
cended vuto him, should not the subiects of
Scotland (1 speak still of Pobt-nati) haue beene
iudged as naturall subiects in England, as those
of France were in Edward U's time? — Then,
be bauing now both kingdoines by hneall, true,
aad law full descent, it am make no difference
touching the capacitie of subiects. which kin«:-
donic descended to him lirst, and which second;
but both t j him alike. And it is clecre, Post-
nan m hngluud are now capable and inherit-
able in Scotland, though some haue made a
causele^e and needelt^c doubt of it: and to
on the other side tho^c of Scotland are in Eng-
land.

It is said, Norma ndie and Aquitania were
no monarchies or kingdom* >, hut dukedomes
or seigniories in France, and holdcn of the
crownc of Fmuce, and there tore not to bee re-
sembled to Scotland, which is. an ancient and
absolute kingdume. This obiectiuu reacheth
Dot to the reason of our question : for, bee
they kingdoines, be they seigniories, yet the
subiectes borne there were borne out of the
kingedome of Eugiand, and so in that respect
aliens? but in that they were borne within the
kin*»» dominion?, and ruder his suhievtton and
obedience, they were no aliens, hut liege and
naturall l«orue subiectes to the kiue ; and so
capable aud inheritable in England. — 1 say
betales, the dukes of Nonnaudie and Aquitauy
were absolute princes, and had soueraiene power
*u those countries, although they did not bearc
the name of kings ; as nt this time the duke
of Sauoy; the duke of Florence : the duke anil
state of Venice; and ot' lute, the great dnke of
ilusMa; the dnke of Hiiniuudy ; the arrhdukc
I»f Austria, cVc. — So the dilfurence in ttile aud

name makes uo difference iu soueraignty : for,
king Henry 8 had as absolute soueraigne iu
Ireland, wiien his stile was lord of Ireland, as
when hee changed his stile and was called king
of Ireland. — And (osay, that the tenure of the
crowne of Fraunce should giue anypriuilcdge to
them of Normandie and Aquitanie in Englaud is
a strange conceipt ; it might rather bee obiected
against them. But, as I saied before, they
were borne within the kings dominions, and
vnder his obeisance, and therefore as subiects
borne iu England. — And if men may beleeuc
some auncient stories, Aquitauy and Normandy
had sometimes kings and were kingdoms of
themselues : and not depending nor Mibicct to
the crowne of France : and the kingdome of
France was then a small portion of Gallia, and
but a little one, iu comparison of that which it
is at this day. And some say, that there were
24 kings in Gaule : but as the kings of France
increased iu power and strength, they subdued
their neighbor-princes, and so that kingdome
grew to that great n esse that now it is at ; euoti
as the heptarchie in England was dissolued,
and made an in tire kingdome, when one of the
kings mightier than the rest subdued his neigh-
bors.

It is saied further, that Normandy and Aqai-
tany were subiects to the crowne of England;
and to the great sealc of England : but so is
not Scotland : ergo, &c. — 'This standetli not wel
with that which was obiected before; that they
were but seigniories houlden nf the crowne of
France. And it is true, that before Edward the
thirds time, those kings of England, that held
those grct seigniories, did acknowledge, that
thev held the same of the crowns of France. —
Bui these objections be light, and not worth
the tune that hath beene spent about them.
The aoueraignetie is in the person of the king ;
the crowne is but an enaigue of soveraignety ;
the muesture and coronation are but cere mo-
i nies of honour, and msiestie; the king is an
I absolute and perfect king before he be crown-
ed, and without thote ceremonies.

The seale is to be altered and changed at the
will and pleasure of tin* king: hee may haue
one, he may haue many, as ph. as>eth him. Tire
king did vse queen e Elizabeth seale, for diuerse
moneths after his comming into England :
queene Elizabeth vsed king Philip & queene
Maries sealc for a time; and queme Marie
%*cd king Edward* seule. And all that was so
done, wu» well and lawfully done. Main*
thin lis were done by uuiun nt kin^s of Eng-
land before the conquest by their signature, and
signe manuell without aim seale at all ; and
some such sir.tv the conquest also : a< gniunls
made by Maude the emprcs*e to Albcrick dc
Vere, and utlu ps. — The kmc may by his groat
se.de commauiid all his subjects that bee vnder
hi*) obedience, where-oeuer tliey bee iu the
wo i Id: so he did in Nomiaiidic ; so he did in
Aquitauy; v> hee did in that part of Scotland
that he had iu pi ^session. And iu 'Jl Edw. J,
hi> iodges kept uidmarv rnurts of iustice there :
and i liuve seem, the records of filatifa extra*

683]

STATE TRIALS, 0 James I. 1003.— The Cote of the Postnati.

[684

tus regit apud Edinburgh, apud Roxburgh, apud
S. Iohns-towne, 6fc. tn Scotia. So hee may
commaund his subjects, if they be in France,
Spain*, Rome, or Turkie, or the Indies. And
for seueral seales the earle of Chester had a
speciaii seaie for that his auncient county pala-
tine. The duke of Lancaster had a speciaii
scale for bis new countie palatine. And after,
when these counties came to die kinges posses-
sion, the kinges continued seuerall seales in
them both for the administration of iustice; bat
as subordinate to the great seale of England.-—
And I make little doubt, but if the king shall
now commaund any of his subjects of Scotland
vndtr his great seaie of England, tliey will, as
they ought, duetifully obey him. As in king
Edward the 1st, Edward the 2nd, and Edward
the 3rd times, they commanded many of the
lords of that parte of Scotland which then was
▼nder their obedience. — I finde, that in IS Edw.
Sod quarto die Iunij, the king * constituit Ado-
' marum de Valentia com item Pembrochiss
' custodem regni sui ; ac locum suum tenentem
4 quamdiu rex in parti bus transmarinis moram
' recent.' And the next day, vis. die Iouis
quinto die Iunij, ' rex ordinauit, quod magnum

* sigillum suum remaneret cluusum in aliquo
' loco secure, dum rex es&et in parti bus truns-
4 marinis : et ordinauit quoddam nliud paruura
« sigillum interim pro rr gimme regni, ad breuia,

* &c. consignanda, sub teste Adomari de Va-
' lentia comitis Pembroch.' Note, heere was
a petty seale pro rrgimine regni, wherein are
comprised commissions for iustice, mandator ia,
€t ad breuia consignanda ; which is for remedia-
Uoj as they are termed.

It is saide, that Scotland hath lawes that are
proper for thut kingdome, and that they are not
subject to the lawes of England, and so 2 con-
tra.— And lastly it was saide, that in England
euery person was within the jurisdiction of
some leete, and at the age of twelve years euery
one is to bee sworn in the leete to bee foiall and
ioiail to the king of England ; that is, to the
lawes of England (for so hee vnderstood loiall) :
but Post-nati in Scotland can not be so ; and
that they haue another forme of oat he in Scot-
land : ergo, SfC.

For this laste parte, of the oathe in the leete,
the lord chief baron did cleerc it so plainely, as
more needs not to be said. This is tcga/i$ tige-
anri/r, it is not aitm ligeantia by birth, which is
that which we haue now in question.

The historicall discourse that hath bin made
of leetes, of law-dayes, of decenna, decennarij,
of the tenne-mens tale, and the oath of all male
children of twelue yeeres, &c. taken at the
leete, is no newes indeede, it is very olde.—
Master Lambard hath it all, and more too, at
large in explicatione vtrhorutn in the word rrii-
turia ; it was before the conquest. — But it ma-
keth nothing to this naturall allegiance and sub-
jection of birth ; it is not alta ligeantia by birth
right ; it is but tegalit ligeantia by policie: and
Fitzherbert calleth it ' swearing to the lawe.'—
And if that were the onely bond and mark of
allegeance, many are out of it, and so at liber-

tie. As, children vnder twelue yeeres; yet
sometimes they may commit treason and felo-
ny ; where, malitia tupplet aitatem. So women
of all sortes; yet they may be shrewd and
daungeroustraitours; and if they bee women no-
bly borne, or widows that were wiues to noble
men, they shall be tried per pure*. — Also noble
men of all sortes, who are neither bound to at-
tend the leete, nor, to take that oath, as ap-
peereth by Britton cap. 29, treating of the
court called ' ttie shinies turne,' out of which
the leete seemeth to lie extracted : for, whatso-
ever is uot presented in the leete may be pre*
sented and punished in the ' shirife turne.' And
M. Kitchin citeth Britton in this point for the
leete ; and alleadgeth also the statute of Marie-
bridge cap. 10, to the same purpose. — And at
this day the view of francke-pleges, and the
putting in of francke*pleues, and the decennary,
are but bare names of Jungs past, the vse and
substance is obsolete and gone. — And as it was
saide, few in this place haue put in such pleges,
ur taken that oath, and yet I trust we are
good subjects, and beare true faith and alle-
geance.

But this hath beene so fully answered and
cleered by the lord chiete baron, and the lord
Coke, cluefe iustice of the Common Pleas, as I
doe wrong to spend time in it.

But touching the seuerall lawes ; I say, that
seuerall lawes can make no difference in mat-
ter of soueraigntie ; and in the bond of allegi-
ance and obedience to one king: and so it
concludeth nothing for the point in question.—
Normandy and Aquittany had seuerall lawes
differing from the lawes of England : so had
Fraunce in king Edw. the 3, and Hen. the 6,
his time. — Ireland, before king Iohns time,
continued their auncient lawes, and so, for tba
most part, haue done euer since.— Gemesey
and Iersey haue yet at this day seuerall lawes,
wluch, for the most part, were the auncient
lawes and custoines of Normandie. — Wales
hail, and in many things yet haue seuerall
lawes : so for the couuty palatine of Chester
also.

Yet these neuer were, nor must not be can-
tell ed and cut oft' from their allegeance and
obedience to the king; nor the kings subiects
borne there be incapable of lands and inheri-
taunce in England : for where there is hut one
souereigne, all his subiects borne in all his do-
minions bee borne ad fidem regis ; and are
bound to him by one bond of faith and allege*
ancc : and in that, one is not greater nor lesser
than an other : nor one to bee preferred before
another, but all to bee obedient alike ; and to
be ruled alike ; yet under seuerall lawes and
cus tomes. And as Saint Gregorie sayetli of the
church, ( in una tide nihil otticit ecclesic sane-
' is diuersa consuetudo.' So I will conclude
tor this point, that diuersitie of lawes and cus-
toines makes no breach of that vnitie of obedi-
ence, raith, and ailegeance which all liege sub-
iects owe to their liege king and soueraigne
lord. And as none of them can be aliens to
the king, so none of them can bee aliens or

695] STATE TRIALS, 6 James I. I COS.— TV Que qf the Postnati. [696

strangers in any of his kingdoms or dominions ;
nor aliens or strangers one to another,- no
more than a Kentish-man to a Cheshire-
man; or I contra. — And therefore all, thai
haue bin borne in any of the kiiiges domi-
nions since hce was king of England, are capa-
ble and inheritable in all his dominions without
exception.

And as to the other parte of the obrection,
that there will he defect of triall ; for, thing*
done in Scotland, cannot bee tried in England ;
I say, that thnt maketh little to our present
question, whether Post-nnti in Scotland be
aliens in England, and not capable of landcs in
England : but it trencheth to cast some asper-
tion vpon the common lawe of England ; that
h is not sufficient to giue iusticc to the kinges
subiectes for iacke of sufficient mennes of triall
of questions of fact. But to this baron Ahham
gaue so full an aunswenre, as mure cannot hee
saied : and so hee did both clcare the doubt,
and did vphould the sufheiencie of the law of
Eugland in that bchalie. And it seemeth
strange, that this should now bee found out to
k«c obiected against Scotland, since it was
neuer hf ere to fore obiected for Fnmce, Nor-
snandie, Aqnitany, nor is at this day for Ireland,
Geruesey, and lersey, &c. whereas all *tnnd
rpon the same reason for the point of triall.
But the wisdome of the lawe of England hath
beene such, as there neuer failed cenen rules
for triall of all questions in fact ; and those
were fitted and adapted to the matter which
was to be tried. And therefore, whosoeuer
doth diligently obserue it, hee shall fmde in the
course and practise of the lawes of England
aboue twenty seuerall formes of triulls; as
by battel!; by iurie, aud that in diueres
kindes ; by wager of law e ; by proofes ; by
examination ; by inspection ; by certificates
of diuers kinds; and by manie other waves:
and lest there should hee any defect in that
behalf?, the law hath prouit'ed seuerall formes
of ioyniiig of issues; nnd in that, hath speciall
regard of things done out of the real me, «s
euerie student may see in the books of re-
ports.

Thus I haue passed these foure obi cct ions,
and therefore for this part I conclude, that if
argument um d timili were ever good and con-
dadent in lawe, my lords the indues haue
prooned this case by so many plaine and di-
rect es am pies, and like cases, and by so
aunie strong arguments and solide reasons
drawne out of booke cases, out of ^titutes,
Out of the true rules and forme of pleading
tad out of ancient records and precedent*,
•ume produced by Mr. Atturuey, and many
•sore retnembrcd by the iudge*, as no one thing
can bee more plainly exemplified, nor appeare
■sore like to an other, than this case is to ilmye
cases which they haue remeinhrrd.

But if examples and arL'uinents d simili dor
mile, then it rrmaineth recurnrre ad ration em ;
and what reason that ought to bee, and how ro
bee vncusrstnode, is ro be considered : for, i» is
Mod, that « lea eat ratio autumn, iubens ea quae

4 facienda sunt, et prohibens contraria.' So it
must be the depth of reason, not the light and
shallow distempered reasons of common dis-
course™ walking in Powles, or at ordinaries, in
(heir feasting and drinking, drowned with
drinke,orblownc away with a whine of tobacco.
Lucretius noteth, that in many there is * ra-
' lionis egesias :' nnd Saint Gregory saith, ( qui
4 in factis Dei ration em non videt, infirmitarem
4 suam considemns cur non videat, nitinuera
4 videt :' for, although reason and knowledge
hee infinite, yet no man can haue more of it
than he is capable of; euery man must receiue
it, and kcepe it in his owne vessel 1 ; he cannot
borrow his neighbours braine-panjjto put it in.
And therefore it is not without cause, that one
of the grnuest and best learned lawyers of our
age, [Hopperus de vera Juris prudentia p. 1 18.]
and a priuie counsellor to one of the greatest
monarches of Europe, descriheth those that
should bee interpreters of lawes by foure spe-
cial! qualities, that is, 1. TEtate graues, 2.
Erudirinne praist antes, 3. Vsu rerum prudent est
4. Publica nuthoritate constituti : so, thero
must be grauitie, there must be learning, there
must be experience, and there must be autho-
rise: and if any one of these want, they are
not to be allowed to he interpreters of the lawe.
— How nil these qualities concurre in these re-
uerend indges, whom wee haue heard in this pre*
sent case, 1 will spare to speake what I thinke;
for, (Jhrysostom teachcth mee, * qui laudatur
4 in facie, flacellatur in corde.' — In seeking out
this depth of reason, the same author [Hoppe-
rus, ibid, page 1 19.1 giueth a caution, which is
this; ' vitium quod in hoc genere fugi debet
4 est, ne, si rat ion tin non inuenias, mox Ic^cin
4 fine ratione esse dames/ And in 36 H. 6*.
I'ortescue saieih the Mime in effect, which is
thus ; l we haue mnnv courses and formes
4 which bee houlden for lawe, and haue hcene
4 houlden and v»ed because of reason ; and
1 notwithstanding the reason he not ready in
4 memory, yet by study aud labour a man muy
4 tinde it/

Now when wee come to examine by reason,
whether Po-t-nati in Scotland shall he disabled
as aliens, or shall be capable of lands in Eng-
land, as naturall borne subjects there ; wee are
first to consider w hat is the reason while aliens
in the dominion*, and vnd» r the obedience of
other forraine princes, are not capable of
huidts in Etiglaud. And surely, the true rea-
son is, that which was noted by baron A It ham;
and hnth since beene ofte nine inbred, vi/. the
danger that might thereby come to the king
and (lie coinmon-wealo : specially by drawing
hither too great multitude* of them : for so the
treasure of the reahne inipht bee transported
by thrni into other forraine kingdomes and
countries ; whereby it might bee vskI against
the kinu, mid to the prejudice of the state :
an I besides, they might vnder-hand practi-e
•edition and re I ellion in the kingdeme, nnd
c:tu«r ma< y °ther dauuger* and iiiconucuiciice*.
But i hat reason cannot seme agniiiM I'ost-nuti
in Scotland, now that there is but one king of

6S7]

STATE TRIALS, 6 James I. IfiOS.— 77«r Case qf tfte Poitnatu

[6S#

both the kingdomes, no more than it can seruc
against those that are borne in Ireland, or
Gernesey, or lersey : and therefore in reason
the/ arc as capable of Inndes in England, as
the kings subiccts of Ireland, and Gernesey,
and Iersey arc.

Against this, there banc also beene many
objections made, and reasons deuiscd, that
seeme witty, and haue some shew of proba-
bility to prouc, that Post-nati in Scotland are
aliens, and ought not in reason to bee capable
of landes in England, videlicet. — 1. That Eng-
land and Scotland were two ancient seuerall
kingdomes vnder seuerall kings, and seuerall
crowncs — % That they continue yet seuerall
kingdomes. — 3. That they huue yet seuerall
lawes, seuerall scales, seucraH crownes, and
seuerall kings : for, it is said, though king
lames be king of both, and hath but one na-
turall body, yet in judgement of law, lie is in
respect of his two seuerall kingdomes, as two
seuerall kings, and the subiects of each seuerall
kingdom* are bound to him by distinct alle-
geance, according to the seuerall lawes of the
kingdome where they were borne. — And all
this is grounded vpon this rule or fiction in
lawe : ' quando duo iura conctirrunt in vna
' persona, a?quum est ucsi cssent in dineois.'

And vpou this ground is this new form of
pleading deuised, which the defendants haue
vsed in this case, such as cannot he found in
uny record, euer to haue beene pleaded before;
and may us well serue against the kinges sub-
jects of Ireland, as against the Postnati of Scot-
laud. And sithence in former times the like
forme of pleading was ucuer seene against any
of the kings of Euglandes suhiects, winch were
Iwrnc in any of hit dominions out of England,
as in Normandie or Acquitanie, or in France
' ^1 meane such part of it as was in the kinges
possession, and in subiectiou and obedience to
him, and nor in that parte of France w inch his
enemies helde) it may be probably inferred,
(hut it was then generally houlden, tliat neither
such a tonne of pleading, nor the matter itsell'e
, wm suthcient in lawe to disable aniesuch plain-
tile : for, agaiiift French-men thnt were not
vnder the kin^« ohrdicnrr wee mide it often
pleaded. Ami n*tia>?c that were not suhiects
to the kin?, nor borne \nder his obedience, did
then presume to bring suites and actions in
England; so it can not bee thought, but that
the king halting then so In rue and ample do-
minions beyond the seas, as Normandy and
Aouiianv, and many other parts of France,
some of liis subiects borne there, had e.tuse to
haue, and did bring the like suites in Euglind.
And sit he ere no such pica is found to haue
beene then vsedsi^:iiu*t tht in, it can not in lawe
and reason bee nnw allowed against the Poit-
nati in Scotland : for, I may say as /Wuiesitied
in 37 M. 6. 'Our predecessor* were as sage
and learned as we be.*

And I see not, but that iu this case a good
argument may bee resisonably deduced from
the ucgatiue, as it wa» in the ease reported by
the great learned, and mutt grane and reue-

rend iudge sir lames Dyer, chiefe iustice of the
Common Ple»s, anno 23 Elizab The question
there, was, whether an erroneous Judgement
giuen in Itie, which is a member of the cinque-
portes, might bee reuersed in the King* Bench,
or Common Place at Westminster ; and it was
thus resolued ; * sed pro eo quod nullum tale
* breue in Kegistro, nee ia aliquibus piasce-
4 dentibus curiam m pradictaram inueniri po-
i tncrat, dominus cancellarius Bromley per
' opinioncm capitalium iusticiariorum vtriusqne
' banci deuegauit tale breue concedere/ And
so iustice Fcnners argument houldeth well, viz.
there is in this case no lawe to exclude the
complainant, ergo hee is a liege and a natural!
borne subiect.

But the forme of pleading in the time of
king Ed. 1. in Coblcdickes case, which was
cited out of Hengham, (and the booke shewed
heere by the lord chiefe iustice Coke) is so
direct and plaine for this our question, as
nothing can be more plaine : and therefore 1
thiuke it not amisse (o report it againc. — That
case was in effect and substaunce, thus : — A
woman brought a writte of uycl against Roger
Coblcdicke, and declared of the seisin of Roger
her grand-father, and conueied the discent to
Gilbert her father ; and from him to the de-
ma undant, as his daughter and heirc. The
tenant pleaded, that the demaundant was a
French-woman, and not of the ligcance nor of
the fidelitie of England ; and demaunded judge-
ment if shec ought to haue the action against
him. This plea was houlden to bee insuffi-
cient ; and thereupon the tenant amended his
plea, and pleaded further, that the demaund-
ant was not of the iigeance of Euglaud, nor of
the fidel itie of the king; and demaunded judge-
ment, &c. And against that plea none excep-
tion was taken, but thereupon the demaundant
prayed licence to depart from her writ. By this
it appcarclh plaiuely, that the first plea, nl-
1c adding that .she was a Frenchwoman, and
not of the lincance, nor of the ftdelitie of Eug-
laud, whs insufficient (and so declared by Berre-
ford the chiefe iustice); for, there can lice no
fidelitie nor allegcancc due to England, res-
pecting the land and toile without a snueraigne
and king. But the second plea, allcdging, that
shec was not of the ligcance of Knciand, nor
of the fidelitie of the king, was pood and suffi-
cient: fur, to the kinj fidelitie and allegeauce
is due ; and therefore, since slice failed iu that,
she was not to be answered : and thereupon
she praied licence to depnrtc from her writte,
and bo »he left her suite.

Now, for the reason* which haue beene
drawno and strained out of the statute an. 14
Edw. 3. If they bee well cxamr»ed, they seruo
little for this point which we ha up in hand. — It
is to be considered, at what time, and vpon
whit occasion that statute was made. King
Edward the third being right heireto the crowue
and kingdome of Fran nee by discent from his
mother, and hailing spent many vet-res for the
recoucritig of the same, resolued to take, vpon
him the name and stile nf king of Fruucc; be-

6S9J

STATE TRIALSJ 6 James I. 16O8. — 77* Cow of the Postnati.

[G90

ing aduised llicrcunto by thc-M of Fla under*. ' uo doubt can bee inferred, whither the kinc;s

Hereupon he did tike the slile of kins; of subiects now boriu'. in Scotland, shall be c'npa-

Fnunce; and attend his sea'e and Lis urines; \ bic of lands in Kir;l md.

and after a whil:-, pheed the arnie> of I'm nee But, nit these uL'iec-'ions and the ground

before (lie ancient urines of Finland, as they where upon thry ;ue framed, vi/.. tjutinth duo

a.c borne «i tlii* day. "I'liis yjkue occusioii fur I iura, iSr. have beene so thorowlv and proi'ound-

the milking of this statute: lor some peo;>le iy examined, ami so Learnedly ami fully ai.-

(a-.euijt gentto, sai»h the statute) seeing tin's swered und c leered by the bulge*, as L nrike

rfia'je. and ruii^idcriii? the hirse and tm.de n.) doubt blit all ui^e and indifferent hearer" bo

I'Vvist, and the in lutinireiifc of that grc:'.t well satisfied therein. — And if there be ai.y mi

km^d.jiiie, hrcaiin-.' to doubt tl.nt ihc kin^ po^scs^ed with a preindii'ate opinion uv.-uiii^t

would make hi« imperial! se.ile there ; ami cm- trutth, and rc.iseii, that will say in tiieir ovuie

cei»if.l tiitrtl.y, th it the kjiiifiiouie of Kniil'.nd, heartis, 'li.it pei?ii:iscris nop p^Miruiebis ;'

bciirj; tiie le^er, shouWl bee mi se.Liection id' the and so, either seneui-like ttop their cures, or

kiiij; ann ^Li'Mioiueoi'l'Vauce, l.i iiii: tiieureutcr, , else wilfully uumih tl.cm»clues, bemuse tliry

and to l-'i ,:*iin.rned nnd ruled bv a vice-roy, would not hcuro the ueaknesse and abstirdit us

or iJepu-y, :•> thty ssw Ireland w;i-. And of their uwne coneeipts laied open and coii-

th/>ii,.ii ju il:,t k!iiL.- sile, Ku^itm i wa« place d i luted : if there btc unv Mich 1 say (as 1 tru^t

lief'^e l*r.i.i'r, v.t tiiev sr.»c the amies of ' there bee but few, ::.ul yet I feare there bee

Franc*; nrir-halied licioru ti;e aiiius of V.w*- | borne) I would thry had ii-.triierl of Tertidlian,

hind; thoiiiUi at Uw li m ho-* ring thereof souk? ' that ' vn*it:i> doccudo siuubt, non suadeudo

sav it was not hi. — To cheiv this d* ubt. and \ ' dorit.' .And I wi*h tint thr-v bee not found
• ... . .. . ... •. __

t » t t.vC a*Auy i his I Lure from thu subjects of
Ke;J.:nd, was this sta'nte wide, as doth
plu;r.ely nppcare by the word's of the statute
ltac'i*?.

Now if yrt'i will iii ko .»n apLaud proper ap-
plication ut tiiai l' i-,c then Ut\v<en'„- Kn^land
acu r'niimce, ■•■ »hi» our (as:* now, betweenc
JJoiIhl.i -ad r.njrind, it inu»<r be t!-us; —
1 E«lw. o,li»tn kii.^ < I'En^l md (l.eintftbe lr*>str)
h.»d afcei'w.ic!.'- ibe ksn^rlunio of 1'r.mcc (In inj;
the yecrtr; l»y nc -('<.ut, ;>nd fooke the ati!e of
kin*: lit France. K;i».^ I.-nues kint; of Scotl::ii,l
fbtvin^ the lrs^ei ) li.s-Ji sift- rward the kinj»-
dome ••! i'li'L'bindf Ir-iii^ the greater) byile^ces.t,
an»> tvkeih the siiIl of kin'4 oi Kiel .mil.

2. Ki*.£ Kd. 3, altered his seuie, viul !<!->
anneb. a<id phteed Viv amies of Frauuca bef>ie
the annes of Kr.'Juud. — King J'nuca liatii
tf meed Ins seale. and his aruiei in l-'.i^hin.l,
a"d brirh placed i!te amies of England before
the &ni«es ot Scotluiul.

J. It h* t\h\ doubted, tln.t kin? Edw. 3
would r- in jii" b's ri.»iii*t our of Kuzkin.l, the
le?irr, n-^l kert4< Ins imperi-tll scute aud state
i» rra;»c*., t'«e jniM-. — King lame* hath in*
dec.**4«' nai!!in>. f.-i Jii«» i-ourl c>:;t 'f Scotland, the
le-ser. uud d»:t!« j*. bra roydl jnr.--»ii (with the
•■•■••■tit.- and ;irmc: , i.nd nil I i* rhiiilreii; ke;.pe

ainoii1,* the iHiiriu.!* mi:. ^* Lo *•• Louie St. Haul
Mvietli, * -,i (pii» i-jnorur, ipiorLl. :' and St. Libit
iu the Apocalips, ' (|ui s"i\i;iiiia e.-t, sirdc^cnt
4 adbur/ And 1 will exhort with St. I'aul :
' qui ie:irt, teneat/ und not wauer or doul»t by
such wfukc i*.r^:niKnr> 11. J objections.

Bi:t in this new kv.i:iin°, tlv.ie is one part of
it so strange, aud of so mtunpei ous conseipjcnr,
ns F may '<n let ii pus^e, vi/.. lh.it rlu.' kin? is as
a kill'/ diuidci in iiivisilfe: and -o as two kings
of two sTtrrll I. i. glomes ; and that there be
acurruil idiej:< »-.::tes, ami scuerall subjections
due iiiLo Kim lesocctiui'lv in resirde of bis
seuernll kiii^doi.ici>, the one not participating
«\itb the other.

Tbi-* \t a daun^no'.'S (!i-iiuction Letweene
the kiiijr aud the crwiio. and betwcine tlu:
kin^ and the kiojilotne : »t reuclii th lo«> fa:re;
I wiali i'ue. v j. nod ^.;l»ir <:i to he^arc <n' it. It
was neu. r ti-i: J t, but 1 it her by tra:four> as i:i
Sptiierrs bill in Kduuid the SM*o:«d, tirne
(whii h baion Sni/, ii* d the li r.! chiife l;a;on#
and h.Tiie L'u'.c i\i .vinbrfd) i-r by ■ reason ible
ji:ipist->, as II-:- iii.^ iu hi> Ci.nful iti..n of the
npoio^ie liiaiisiainriu, that J;in«i"i Ijmuc thi'ir : ',•-
thnity by tlu |i isitiue laue of uatii-us, and W'.kq
no nioie puwor, than tl:c people hath, of whoine
they t.Ae tht-ir ti.inj;t»tidl i!iri>:iii:.i.a; and so
i»* :ui,K*riHll -e.'.te in I'liih-.n'!, the ".'renter. K.ci^rih Sim «r...a, and 1 ihei* of ii::-.t 1 u.v. Or

I. In .d *hfMa i|if riUv'S.iLT'".'1; bi:t vet on«» bv seditious '• i t.uif- i.;ni l'nrilai •., lis liiirh'.ui-
eir.ue; i:e the ' ;.-■. and i.ur. Is iu the rl!: : f.#r ! nan lie iuie U..;;-»i :,.;»vd SmToi, !\r v, Kin-v,
kuij Kit. .':, :n h^. ^ti!c pl.icd. Kngbiud, the 1 find *uc!i hive. For, i-\ tlie-t-, :••:■! il.'-e li;;:'.
leaser, t eiiij* i.:s nnei^M: k n«.- io».i» , l._-fore 1 are llit 1/ f.-li- wers, :«•■ d i'*'tl:eir i-«« ::-m, thirc :^
Franrf.ti^'i i-^ iter, Iu iiy uev.'iV f'<'a*'e< df d'.uto 1 to then p:.:iij !.!' '> '.no in rb. ».« !» tram rous
h mi. — iJut .1.1; i:iines in in> Min* f.-i„r.e:!i Fa.;;- se: f!e »u\\;n:.-— i * = » L !l -itiii*.": :'...-. '. ». ill :;ih!^ .1
liu:\t :!.«• tff .it> r, tlioii'ih ucwl; tU •«. !.<?!. i milo ! L'.tN* n.oi»\ in ; :. ■ .;#•, th.-l :n :\ * 11 U'.Wit
••U.., I » !«;•■ >'ci.iimid, llit le«>- .-, ben:;; his an- ' C ali.inr. i ; i ■ ■ f ■. 4 •■: 1 .- 1. • ■ l'>.' r.. t". ;u -■ ».:! :■ .!,
fifiit ^.;.i d inf. j •*ii„lil bv !.\*.\t- 1'* I e r . j >-> l le ••! \. .. '.■ *» in i Ji».-

.">. .\,iw,?bi» bein^ thus; pn:..i| p*s ^'^orl.utl | I •.::.! : j-nd f i ;' ..:, I oil ivu" . .'« ■ t un:* i.ne
la JLI o«it ■.! tins e\-ioi;i!i.* luiiu: iOJa,: .:•[ the j I'.o.i \\i'„ ii .s l^ : ;mi ;-s.d fn'etli u»1, :.!al '.i'^'it
Ke doubt ;ij s;iiir J"'" iii-iiid, :>s l'irja:.'t •.!-; tinrn ' to be.* u: -i! :ul in :i': .urci'p.'riuMiMi of I v . ^ ;
&K4!n«t Irai-i'i": bi,- , .s 'hen «:■»« i-i».m no j : :•.•' ;i.-.r ■•.■in :;::i ! .il>urd.!!n, nt qi..:i ... :-
(''Ulit made. wlre;ii'.r the km«i- »id- <:• :■■ i ue ; * ? .m-iu a:h..ri: t';r.'

JnK>„rl:ti)'tHrr.j|<] beeap.ibic o: land i.,] . :.i.e; I -''«*r, \ ,»--.; i t} - «i«! :;|i« .:*;d \\-.v .-en-ns «.":•-
^ydiitof tl.is ttutUiC, ;.nd \ pun tl.is «-\ ;. p!e : tiiirta<n '.);'!'<:'!. , -d .-, .;»*. » <.\. ^.il ».'j 0«e kii»tr,
VOL. I|. I 2 V

C91]

STATE TRIALS, 6 James 1. \6M.—The Cute of the Posinati.

[692

and of faith and allegeance due to the crowne,
and to the kingdome (wliich is the onely basis
end fundamental I limine reason to disable tlie
plaiutik, and nil Pust-uati) there follow too
many grosse, and fowle absurdities, whereof I
will touch some tew,' and so conclude, that in
law e and reason this subtile, but absurd and
tlungerous distinction, ouuht nut to be allowed.
— This bond of allegeance, whereof \\ee dispute,
is vinculum Jidci ; il bindtth the soule und
conscience of cuery tubiectseuerally and lespec-
tmclv, to be fuithiull and obedient to the king :
and as a soule or conscience cannot bee framed
by policie; so faith and allegennce cannot bee
frui»cd by policie, nor put into a politike bodie.
An oath must be swome by a iiaturall bodie;
homage and feaJtie must be done by a n at u rail
bodie, a politike body caunot doe it.

Now then, since there is but one king, and
soueraigne, to uhomc this faith and allegeance
is due by ail his subjects of England ai. J Scot-
laud, can any humane policie diuide this one
king, and make him two kin-.:*? Cuii ' cor regis
' Augliaj' be * in mruui 1) ,nimi,' and * tor regis
' Scutiaj* not so? Can there bee warres be-
t wee ne the king of England and the king of
Scotland, or betweene the kingdome of Eng-
land and the kingdome of Scobiand, so long as
tlicre is but one king ? Can the king of England
now send an army roial into Scotland against
the king of Scotland ? Can there bee any letters
of inarke or rcpri&nll now ununited by the king
of England, against the subjects of the king of
Scotland ? Can there bee any protections now,
' quia profecturus in excrcitu fcicobi regis An-
1 gliie hi Scotiaui ?' Nay shortly, can any man
bee a true subicct to king lames as 'king of
England, and a traitor or rcbcll to king lames
as king of Scotland ? Shall a footy breadth, or
an inch breadth of ground, make a difference
of birth-right of subjects borne \mb r one king;
\v.\j. where I la-re arc net anv certen bounds oi
lunites knnwnc* at. all, but an imaginuric parti-
tion wall, by aconctiptcd liction in lawe? It i>
enough to pnipmmd these and such like ques-
tions, whereof many won :.iiehr be lerucnihicd:
Ihcy carry a sufficient and ph'im. answcire in
tin mselues : ' magis docet qui | rudentcr in-

* I c nog at.'

As the king nr>r hi- heart cannot br e diuided,
for he is one entire kins: nicr all hi> Mibitctrs,
in which soever of hi* kingdni.n-s or dominions
thrv wen boi nc, so bee mu\t not bee strut d
nor obeyed bv hahics : he must haue inthv and

• *

perfect obedient e of l.:> >uhjuts : for * ligii-n-

* fia' (as haro:i Htro;. >aied well) must haue
foure ipialiti.-s ; it must bee € 1. pura ft sim-

* ple\ : \J. iniegra et solidu : S. vniueiaalia nou
•loci!i>: .3. pcrmanens, contimui, ct illasa.'
Diuide a man's heart, and you lo?.c both purl*
of r., ;;tid make no heart at all ; su he that in
i:o? an intire subitcr, but 1. n lie- fared, is no
Mihiect at all: and hee, that is torn an intiie
and perfect subieet, ought by reason and lave
to banc all the frecdomes, priuiled^es, und he-
befit es pertaining to his birth-right in nil I In.'
kin»es d--:ir. in ion-s: and such are all the IW-

nati in England and Scotland. And the incon-
uenieuce ot' this imaginary locall allegeauce
hath bcene so lately, and so fully declared by
the lorde chiefe iusticc Coke, as more neerie*
not bee saicd in it. — In some special 1 casts
there sometime may bee a king of subjects
without land in possession, as iuslice Tenner
noted in the gouerneiuent which Moms bud
ouer t lie people of Israel in the wildernesse;
and us in the case which sir Iobn Popham the
late lord chiefe iustice did put in the parlia-
ment. If a king and his subjects bee driuen
out of his kingdomc by his enemies, yet not-
withstanding hee contmueth still kiug ouer
those subjects, and they are still bound vnto
him by their bond of allegeauce, wheresoeuer
he and they bee. IJut there can not bee a
king of hind without subjects : for, that were
but * iniperimn in be Jin as,' and * rex ct sub-
( dni sunt rotutiua/ *

I j-aitd there was an other genera 11 lule for
expounding of lawes, which 1 reserued to bee
last spoken of. I will now but touch it; £>r, I
will not stand to examine by humane reasons
whether kings were before lawes, or lawes be-
fore kinces; nor how kings weic first ordain-
ed : nor whether the kings or the people did
first make lawes ; nor the seueral constitutions
and frames of states and coinmon-weaies : ncr
what Plato or Aristotle haue written of this
argument. They were men of singular learn-
ing and wisedome ; but wee must consider the
time, and the countrie, in *hich they liucd,
and in all their great learning they lacked th«
true learning of ti.e knowledge of (Jod. They
were borne ^ud lined in Greece, and in popular
states: they were mimics, or at lea^t tnislikers
of all monarchies ; jet our of them disdained
not to bee a seruant or incrccnarie hireling to
a monarch. They accomplcd all I he world
barbarous, but their owne countrey of Greece :
their opinions thrrrfore are no canons to gi\e
lawes to kiuncs r«nd kingdomes, no more than
sir Thomas .Moons Vtopin, or* such pamphlets
Us wee bane at eut-ric u>arte.

I bclecue l.im that *aicth, 'per me regfs

* remnant, ct pr:n« ;; e-s nsta decernunt ;* [Prw>.
c. 1*.] and 1 mkiVv no doubt, but that as God
ordained k)i\i% .:ai oath giutn lawus t<» kings
thcmselues, so lx-e hath authorized and giuen
power to kin;;* to giue lawes t*> their subiecb ;
and so ku.^s did lost make lawes, and then
ruled by their hw.es, and altered and changed
their lawes ftom time to time, as thev sawe
occision, tor tlie g -u.il <»!' tlu-mscluef, and their
subieets —And this j:ov\er they haue from One!
Almighty ; for, u.<> saint Augustine saieth ' in
' hue te^es J)io -ciuiuut sicut eis diuinitus

* pra.'cipitur, in (jii-.uitiun sunt reges, si in suo
1 regno bona iuitMiil, mala pn)hibeant, non sa-
' luin <]uj; pertinent ad humanam socictatcm,
1 vrrmiieliam i\\\\a ad diuinam religioucu).'-

And I hould Thmnaa Aquinas his opinion t*>
be ^ood, % ie\ si>lutns a irgibiis quoad vim co-
1 aciiuam, subdilus e^t legibus quoad vim dircc-

* tiiiain propria voluutnte.' And lor this opi-
nion there is» a stronger autbontie, euen from

693]

STATE TRIALS fi J \ml* I. in;-. — 7%r Case uf 't/,r hitnuti.

[691

God himself in Ecclesias:r . c. ft. vcr. °. ' e«»o
4 os regis obseruo ; et piaci ptu utr:ini< tit • I.)ci :
and vex. 4. * sermoilltus podViuie phur.s l t :

* nee dicere ci quisquum potest, qe.are i:a fa-
1 cias?' i

Now being led it little from the common
taw to the citiifc lawe, I finde ir th<M-iuilc lawe
[Cod. 1. li. tic. 14, le. 1.] a direct tcu, war-
ranting that gcnerull rulu which I resrrued lu
this place, which is this ; ' inter a quitatem in—

* que intcrpoiitam interpretation cm nobis sulis
- ct licet et oportet inspicere.'

And another like text [ibidem lo. 12.1 in
these words, * sententia principi* ins (luhiinn
4 decJarans, ius fa«it quoad ninnes.* And some
graae and notable writers in the ciuile lane
say, ' rex est lex auimatu :' smie say, ' rex est
' lex loquens :* some others say, * interprc-tnn-

* tur legem consuetudo et priuceps*:' another
saieth, * rex solus iudicat de causa lure non tie-

* Anita/

And as I may nt^ forget saint Augii*tinrs
words, which are these ; * generate pactum est
' societatis humans regibus suis obtemperare :'
so I may not wrong the iud^es of the common
lawe of England so much as to suffer an im-
putation to bee cast vpon them, that they, or
the common lawe doe not attribute as great
power and authoritie to their soueraignej the
kinges of England, as the Roman e lawe* did
to their einperours: (a) for, Brnctim, thechitfc
iostice in the time of king Henry the 3rd, hath
these direct wordes, * dc chart's resij* ct factis

* regum, non debent, nee possum iusticiuri
1 nee priuata? person ac disput ire. Net: tiiam,

* si in ilia dubitutio oriatur, [inbuilt earn intcr-
1 prctari. Et in duhijs ct ohtcuris, vel si aliqua
' dktio duos continent intellect us, domini re^;s
' erit expectanda interprctsitin et voluntas;
' cum eius sit iulerprcturi cuius est conderu.'
And Britton in the time of king Ed. 1, writcth
as much in effect.

So as now if this question seem difficult, that
neither direct law, nor examples and precis-
dents, nor application of like rases, nor dis-
course of reason, nor the graue opinion of
the learned and reucrem! iud*:»»s can resolue
it, here is n true and certen rule, how both by
the ciuile lawe, and the ancient common hue
of England it may and ought to be decided :
that is, by sentence of the most reh^ioiw, learn-
ed, and judicious king that eutr this kiit^donie
or island had. — But this case is so rh are as
this ncedcth not at all. — And in this 1 would
not be mis-vnderstoodc, as thmi'jrh I spake of
niacin; of new iawes, or of altering the lawes
now standing; I menne not so, but I spcakc
oaly of interpretation of the lawe in new ques-
tions and doubts, as now in this present o-c :
neither doe I moan hereby to derogate any
thing from the hiirh court of parliament ; (farre
he it from my thought) it is the great cornice! 1
of the kingdome, wherein en cry subiect. hath
interest. And to speukc of the constitution or

(a) This language is MtreJy very unguarded.
Editob.

! . line of i', or how. or when it was fir-t lx-
gunne. is for hii-ie que<tionists: it oujihl to ben
oU\ed and reuerenco.l, hut not disputed ; and
it is at this lime imperiit.etit to thisque-tio'i. —
But. eerteii it i«, it hath beene the wisdome
of the ki»"e: of tl.ii realm Co re^erue in them-
mIuc? that sapreame power to call their i;o-
hlt:*, eleriiie, and commons togf ther, when they
feawc "real aud vment cuu>es; and by limt
trie at counsell t« make edicts and statutes i.T
rhc weale of their people, and safctie of the
kingdomc nud state, ns in anno 10 Edw. G, the
assembly at Nottingham for the great wars ia
Tiance: and in anno 'JO II. 3, I'rouision'.-* ,
Merlon, which T re mem bred before.

There haue beene made some objections of
inconucuiencie, as lor hearing of scot nnd lor,
and such other charges ; and some o.rt r,f fru-
gal it ie, that the kins; shall lo«e j»:^ proiit of
uiakipg drni/ens, and Mich like. 'IVcse nrt so
li^ht as I lenue them to the winde ; riiey are
neither fit lor parliament, nor c jur.ecll, iht
court.

Another arsmnrnt and ienco:i j'ii-.mi st the
Postnati hatli beene lately made out of d inci-
dence and mistrust, that they will rosne into
England sans number, and so as it were to sur-
charge our common ; and that this may he in
secula xeculorwn. I know not well what this
meaues. The nation is ancient, noble, and
JamOu-) ; they haue many honourable and ivoor-
thie noblemen and gentlemen, and many v. i-e
and viorthie men of all doirree* and qualities;
they haue lands and taire jiossessions in Scot-
land. Is it therefore V* bei: supposed, or enn
it in reason bec imagined, that such multitude
sarn number will leatie their natiue soile, and
all transport tbcmsclue* hither? Hath tin- Irish
done >o, or those of Waits, or id" ihe i-hs of
Man, (ie:ae?ev, anil itrsev? \\ he rhould «e
tl"*n s.u«?pect it now more for £eotl md ?

j\:iy, doe y.i: suppose th it l!n« i in«je of Ein-
land will oner sailer so '..rent a paiti- of l.i-s d.i-
minions, and >o urear ami f.onons a kiiiL' lome
:is Scotland i^ to he dispeopled? It is a dcubt
jmauinod uithout. anv Giiinlntinn or m'-iinJ of
reason. Rut if it wire to bee douhttd, the
twehie iudges that haue onenrred in fipinion,
and that late wortliy ifnir.e I'oplrun, liad as
"rcat cause to fem*e it as anv otheis. Tlicv
are wi<e; th<v air learned; thrv haue foe
possession* and i^oinl c-t iie« : tliey haue rn*-
tintie to care 1"»r a* otlur- haue. — Yti, ail-
ing :t bi'L* a nnfftT worth the iloubtiiu; of",
whit is tiiat to the ynuii£ l^^tnati that are
iwif like in many vearcs to come hither in such
number? Shall we vpon this rntislesFe feare ile-
pr.ue them of rhirir law fall l-irth-riuht? Uaue
w(!« ^ceue in thine 'lue \tv-re.i past auie in-ire
■ m '.i.i'111 than this one aloee that haue golli.il
a:>v lands in Eiiuhmd : A:» i :l.i^> little that he
l-ath is so small and poore a portion, that Ins
ptinliase is notarial, and tin iclore uu iu*t
c::il*-u uf oU'eiiCti to an/.

Nay, if av»u luu!:*; ip'in the Antenati, you
•hall liud u:. !a.ciiCiiulUit;ii (■ hither, tut soniv
li.'? (;u.d ".e.y few in ie*pret of that eic.it and

695]

STATE TRIALS, 6 James I. 1603.— The Case of the Postnati\

[696

populous kingdome) that baue done long an*
worthie seruice to his maie«tie, haue, and still
doe attend hiui, which I trust no man mislikes : ,
for, there can bee none so simple, or childish
(if they hauc but common sense) as to thiuke
that Ins maiesty should hauc come hither alone'
amongst vs, and haue left beoinde him in Scot-
laud, and as it were caste off, all his ould and
worthie scruants.

And if these noble and worthie gentlemen of
Scotland, I meanc the Antenati, be louin&ly
and brotherly entertained amongst vs, with
mutuull loue and beneuolence, :hat so we may
roa/oicfrei and be vnited together, by marriage,
and otherwise (as in some particular casrs wee
see it already happily begunne) no doubt God
will blesse thin vnion of both these nations, and
make them, and the king, and Great Britnine
to be famous through the world ; and feared
and icdoubted of our enemies, and of all that
wish vs ill : for, * vis vnita forti>r, et concord i a
' multos tacit vnuin.' But what may follow
vpon such arguments of dithdence and sutpi-
tion, which seemc but to hinder vnion, and to
breedc discord and distention, I will not speake.
Let cuery wise man consider it well : for, ' hu-
4 man a consilia castigantur vbi ca'Iestihus se
* pra*ferunt.' And remember St. Paules cau-
tion, ' s\ inuicem mordetis, tidete ne ab inuiccm
4 consumanaini.'

And for the resemblance that hath bin made
of this case of Postnati, but indeed for the
vnion of both kingdome*, with the houswifes
cutting of her cloth by a threedc, I will say but
this, that if shee cut her peece of cloth in length
aswell as in breadth, all the threads will be
cutie, and the cloth marred. And this cutting
in this our ca*e, is, to cutte all aswell in length
as in breadth, euen fhiough all the hinges do-
minions ; and so will rent asunder the whole
frame of the vuioii, and cut in peeces all the
thrceds of alle<?cance.

But now I will aske this question : how long
shall this suction and doul.it continue ? Shall
there bee a dis-vnion for rucr? If it be saicd, uo,
but vntili tlie lanes and customes of both king-
dom t'S bee made one and the sanii- : then I aske ;
how, and when that shall be done? and it may
bee, that the constitutions of the countries hee
such as there can h.udely in all things bee tucli
an absolute and perfect reconciling.or vnitiu; of
1'iwes as is fancied. Is it yet so betwecne Eng-
land and Walls, or betweenc Kent and Corne-
wall, or b -tweene 111.1 ny other parti of uii^ king-
dome? [ say no; and I speake it confidently
and triK-ly, it is no! so, nor well can be so.
There* ton- let Euulaud and Scotland he in like
de^'-ec now, ab J'ajnnd and Wale* v. etc for

many hundred yecres, and in many things arc
yet stiil ; and yet let vnion and loue increase
amongst vs, euen in secula tccnlorum. Let vs
not be such as St. Bernard noteth, * amaut quod

* non decet, t'inent quod non oportet, doleut
1 vane, gaudent vauius.' And let vs no longer
make question, whether scuerall lawes and cus-
tom es bee mnrkes of scpenition and dis-vnion,
or of seucrall allegeances; for certainely they
are not.

One other reason remaincs against these Post*
nati, and that is out of a prouident foresight, or
as it u ere a prophesying : w hat if a seperatiou
of these kingdomes tail hereafter ?

Of this I can say but absit omen. It upoten*
liu rcmota (as iustice Wiiliams saied) and I trust
in God ranolissimu : and I will euer^proy to
God that it neuer fall so, vntili the king of all
kinges resume all scepters and kingdomes into
his owne hands. And let vs take heede of sioiies
of ingratitude and disobedience ; and remem-
ber, that Adam and Eue were punished! ' non

* propter pomum, sed propter vetitum.' Aud
for such prophets, let the prophet Ezechiel^ ca.
13. answer them, * vas prophaetis insipicntibus,

* qui sequuntur spirituin suum, et nihil vident.'
And the prophet E»ay speake th to all such with
an other va, ' vas illis qui dispergunt.'

Now then, as M. Solicitor beganne with seek-
ing out the truth ; so I will conclude with Es-
dras words, « magna est Veritas et praualet :*
and with this further, ' eatenus rationandum
1 donee Veritas inueniatur : cum inuenta est ve-
' ritas, figendum ibi iudicium: et jn victoria ve-
« ritatis, soli veritatis inimici pereunt.'

The Conclusion.

Thus I haue heere debuered my concurrence
in opinion with my lordes the iudges, and the
reasons that induce and sat:sfie my conscience,
that ICo. Caluine, and all the Post-tiati in Scot-
land, are in rc-ison, and by the common lauc of
England, naiurall-borne subjects within the al-
lege.nice of the king of Knglaud ; and inhahled
to purchase and haue u\x-hotild and inheritance
of lands in England ; and to bring reall actions
for the same in England.

For, if they haue not this benefit by this bless-
ed and happic vnion, then are they in no better
case iri"E*>«land, than the king of Spaines sub-
iects borne in Spaine, &C. And so by this vn.un
they haue gotten nothing: wh»t they hauc lust
iustice Yelucrton did well note.

And therefore I mustgiue judgement in the
Chanccrie, that the defendnnts there ought to
make direct answer to Ko. Cainiues bill tur the
lands and euidenccs for which he complaiucs.

T. ELLLjMi.r.EyC«UU*.

697]

STATE TRIALS, 6 James I. 1G0H.— Trial qf George Sprot.

[69b

86. The Trial of George Sprot, in Scotland, for High Treason, in
conspiring with John Earl of Cowrie to murder King James I.
6 James I. August 12, a. d. 1608. [Spotiswood's History of
the Church of Scotland, p. 509.]

GEORGE Sl'ROT, a notary, inhabiting at Ay-
mouth, having given cause of suspicion by some
Words which fell 1'roui him, and afterwards by
some Papers found upon him, that he was
privy to and acquainted with the Plotting of the
late earl of Gowrie* and Robert Lojauc, for
the cruel murdering of king Jnmes, wu-. seized
and committed to prison; and after divers Exa-
minations, being moved with remorse of consci-
ence for the long concealing his fore-knowledge
of this Conspiiacy. coufesseth, declureth, and
deponeth, Thut he knew perfectly, Uiat Robert
Logane, late of Restul rig, was privy and upon
the fore-knowledge of Cowrie's treasonable
Conspiracy. And for the greater assurance of
Lis knowledge, deponeth, That he knew that
there were divers Letters interchanged letwixt
them, anent the treasonable purpose aforesaid,
in the beginning of the month of Julv lt>00.
Which letters James fiour, called Jaiid Bour,
servitor to Ucstplrig, (wlio was implored media-
tor betwixt them, and pri\y to ;ul Unit crnmdj
bad in keeping, and shewed the same to Sproi
in the place of Fast-Castle. The first of Cow-
rie's Letten»v containing in effect as followeth :

* Good laird of Rest al rig, you understand
' what Conditions should have been betwixt
' us, of before. Iudecd I purposed to have
1 cone by your bous*», but understanding of your
1 absence in Lothian, 1 came not. Always I

* wish you either yourself to come West, or
' else to send some sure messenger, who may
' confer with me anent the purpose you know.
1 But rather would I wish yourself to come, not

* only for tlmt errand but some other tiling that
' I have to advise with you/

To the u Inch Letter Rc^tulrig wrote an An-
swer, and sent the same to the eml o\' Cowrie,
ty the said James Hour, of the t< nour l'/Uowing :

* My lord, my most humble duty and service
' heartily reme inbred. At the receipt of your

* lordship** Lttter 1 ain >o comforted, tint I can
' neither utter my joy, nur find myself suliici-
' cutly able to requite your lordship with due
' thanks. And persuade your lordship in that

* matter, I shall he as forward for your lord-
1 ship's houour, as if it wc*re my own cause.
' And I think there i> no living Christian that
' would not be content to revenue thai Machia-
1 rethau inasacniii: of our dear friends; yea,

* bowbeit it should be, to venture and hazard
4 life, lands, and all other things else. My

* heart can bind uie to take part in that matter,
1 ft* your lordship .-hall find better proof thereof,
1 but one thin^r would be done, namely, That
' your lordship should be circumspect ami

* earnest with your brother, that he be not ra-L

No. 7 J, and the following articles.

in any speeches touching the purpose of Padua.
My lord, you may easily ui.der-stand, that such
a purpose as vour lordship intendetb, cannot
be done rashly, but with deliberation. And
I think, for myself, that it were most meet to
hauethe men your lord •hij) spake off, ready in
a bout or bark, and address them as if they were
taking pastime on the sea, in such fair sum-
mer-time. And if your lordship could think
good, either yourself to come to my hnu?c of
Fast- Castle by sea, or to send your brother, I
should have the place very quiet and y\e\\
provided after vour lordship's advert isc-uuut,
where we should have no scant of the best
venison can be bad in England : And no
others should have access to haunt the place,
during your lordship's being hero, but all things
very quiet. And if your lordship doubt of
safe landing, I shall provide all such neces-
saries as may mtvc lor your lordship's arrival,
vw'.lun a flight -hot of the house. And per-
vade your lordship you shall he as sure and
quiet here, while* we have settled our Plot, as
if vou were in vour own chamber: for I trust
and am assured we shall hear word within a
few days from them your lordship know eta
of; for t havo care to sec what ships comes
home by. Your lordship kuoweth I hate
kept the lord Bofhweil quietly in this house
in his greatest extremity, say both king and
council what they liked. 1 h»pe, if all things
come to pas-, as 1 trust tl.ey s -all, to hav*
both your lordship and his h>id>hip at oue
good dinner afore I die. J/rfY jocose, to
animate your lordship : J doubt not, my lord,
bat nil tilings shall be wi II. And 1 am ie-
solmi, w in. reof your lordship Oiall not doubt,
of a ay thing on my part, \va, to peril lite,
land, honour ami gooJs; yia, the hazard of
hell r>li;ill not aifray me from that, yea, al-
ihnuj!) the -caffold were already set up. Tin-
s'u hi cr the mutter were done, it were the
better, fir the kind's buck-hunting will be
shortly; ;md F hope it shall prepare some
dainty cheer for us to diuc against the next,
year. 1 remember well, in\ lord, and I will
never fir^tt so l«.i % as 1 live, that merry .-port
u hich y i ■ ur Ion Chip's brother told me of a no-
bleman at i'adua; for 1 think that a P^ras-
civr T'i thi* purpose. My lord, think nothing
ih'.i I commit the se*crecv la re if and credit
t > liiH bearer ; lor I dare not only venture
n.v life, lauds, and 'all other things I have
ei.-e, <mi his credit, but I duix h l/ard my goal
io hi*k( epinp if itwerepo-.sih'y in earthly mm ;
for I am so per.-ti.nli-d of hi> truth and fidelity.
And I tro'A, a- \our lonUhi.> may a*k him if
it be true, he w -mid so to lle-ll-(i:iic> f.»r rue ;
and he is not bi uiied of inv win to him.

CD9]

STATE TRIALS, 6 James I. 1608.— Trial of George Sprot,

* And therefore I doubt not but this will per-

* suade your lordship to give him trust in this
' matter, as to myself. But 1 pray your lord-

* ship direct him home with all possible haste,
' and give him strait command, that he take
1 not a wink sleep while he see me again,
' after he come from your lordship. And as
1 your lordship desireth in your Letter to me,
' either rive or burn, or else send back again
' with the bearer; for so is the fashion, I grant/

Which Letter, written every word with Res-
talrig's own hand, was subscribed by him after
his accustomed manner, * Restalrig,' and was
sent to the earl Gowrie by the said James Bour.
After whose return, within five days, with a
new Letter from Gowrie, he staid all night with
Restalrig in Gunnes-Grecn,* and Restalrig
rode to Lothian the morn thereafter, where
he staid five or six days. Then after his re-
turning, past to Fast-Castle, where be remained
a certain short space.

And farther deponeth, That he saw and
heard Restalrig read the last Letter, which
Bour brought back to him from Gowrie, and
their conference there-anent. And heard Bour
say; Sir, if ye think to make any commodity
by this dealing, laj your hand to your heart.
And Restalrig answered, That he would do as
he thought best. And farther said to Bour,
Ilowbeit he should sell all his own land that
he had in the world, he would pass thorow with
the earl of Gowrie, for that matter would give
him greater contentment, nor if he had the
whole kingdom ; and rather or he should falsify
his promise, and recall his vow that he hail
vowed to the earl of Gowrie, he should spend
nil that he had in the world, and hazard his life
with his lordship. To whom Bour answered :
You may do as you please, sir, hut it is not my
counsel, that you should be sj sudden in that
other matter." But for the condition of Dirl-
ton, I would like very well of it. To whom
Restalrig answered, Content yourself, I am at
my wit's end.

And fartticr, Sprot deponeth, That he en-
tered himself thereafter in conference with
Bour, and demanded what was done betwixt
the Laird and the earl of Gowrie. And Bour
answered, That he believed that the Laird
should get Dirlton without either gold or silver,
but feared that it should be as dear unto him.
And Sprot inquiring how that could be ; Bour
said, They had another pie in hand, nor tbe
selling of any land ; but prayed Sprot, for God's
sake, that he would let be, and not trouble him-
self with the laird's business ; for he feared,
within few days, the laird would be either
land-less or life-less.

And the said George Sprot being demanded,
if this his Deposition was true, as he would
answer upon the Salvation and Condemnation
of his Soul ; and if he will go to death with it,
seeing he knoweth the time and hour of his
death to approach very near; deponeth for
Answer, That he hath not a desire to live, and

* A bouse of llestla rig's.

[TOO

that he knows the time to be short, having care
of no earthly thing, but only for clean ug of
his conscience in the truth of all these things,
to his own shame before the world, and to the
honour of God, and safety of his own soul ;
that all the former points and circumstances,
contained in this his Deposition, with the De-
position made by him the 5th of July last, and
the w hole remanant Depositions mule by him
sen that day are true, which he will take on
his conscience, and as he hopeth to be saved of
God, and that he would seal the same with his
blood.

And farther, being demanded, where this
above-written Letter, written by Restalrig to
the earl of Gowrie, which was returned again
by James Bour, is now ; deponeth, That he
abstracted it quietly from Bour, in looking over
and reading Bours Letters, which he had in
keeping of Restalrig's ; and that lie left the
above-written Letter in his chest among |iis
Writing*, when he was taken and brought away,
and that it is closed and folded within a piece
of paper.

This aforesaid Deposition was made by Iiim
the 10th of August 1608, written by James
Primerose, clerk of his majesty's privy. council,
and subscribed with the said George Sprot's
own hand, in the presence of the earl of Dun-
bar, the earl of Lothiane, the bishop of Rosse,
the lord Schune, the lord Halyrudehouse, the
lord Blautyre, sir W. Hart, his majesty's jus-
tice, Mr. John Hall, Mr. Patrick Galoway,
Mr. Peter Hewart, ministers of the Kirks of
Edinburgh. Subscribed with all their Hands.

And also the 11th day of tbe aforesaid month
and year, the said George Sprot being re-
examined, in the presence of a number of the
council and ministers aforesaid, and it being
declared to him, that the time of his death now
very near approached, and that therefore they
desired him to clear his conscience with an
upright declaration of the truth ; and that he
would not abuse the Holy Name of God, to
make him, as it were, a witness to untruths ;
and especially being desired that he would not
take upon him the innocent blood of any per-
son dead or quick, by making and forging lye*
and untruths against them :

" Deponeth, That he acknowlcdgeth his
grievous offences to God (who hath made him
a reasonable creature) in abusing his holy
Name with many untruths, sen the beginning
of this Process : but now being resolved to die,
and attending the hour and time when it shall
please God to call him, he deponeth with many
attestations, and as he wisheth to be parti-
cipant of the kingdom of Heaven, where he
may be countable and answerable, upon the
salvation and condemnation of bis soul, for
all his doings mid speeches in this earth, that
all that he hath deponed sen the 5th day of July
last, in all his several Depositions, were true in
every point and circumstance of the same ;
and that there is no untruth in any point
thereof."

And having desired Mr. Patrick Galoway te

M

1 01]

STATE TRIA1<S, 0 James I. 1608.-; for High Treason.

[705

make a Prayer, whereby he might be com-
forted now in his trouble ; which was done : the
said Deponer, w irh ninny tears after the Prayer,
affirmed tius his Deposition to be true ; and for
the confirmation thereof, declared, that he
would seal the same with his blood.

And the next <iny thereafter, being the 1 Qth
of the aforesaid month of August, upon the
ajure»aid Confession, the said George was
brought forth and presented in Judgment upon
Pannel, within the Tolboolh of Edinburgh,
before sir Wm. Hurt of Preston, his majesty's
Justice, and there in a fenced Court hoiden hy
him lint day, ussisted by the honourable pei-
sons following, his assessors in that errand : tliey
are to *ay, Alexander earl of Dumfcrmlin£,
lord chancellor, George earl of Dunbar, trea-
surer, John abp. of Glascow, David op. of
Rosse, Guwin bp. of Galloway, Andrew hp. of
Drechine, David earl of Crawford, Murk earl
of Lothiune, John lord Abirnetliy of Sultoun,
James lord of Balinerinoth, secretary, Walter
lord Blantyre, John lord Hnllyrudehouse, Mich-
ael lord BurJey, sir Rd. Cokbumc of Clarkiu-
touu, kt. Mr. John Preston of Fen ton Barnes,
collector-general, sir John Skeyne of Curihil,
knight, clerk of register : was delated, ac-
cursed, and pursued by sirTho. Hamilton of
Binning, knight, udvocate to our sovereign
lord for his highness':} entries, of the Crimes
coutained in his Indictment, produced by the
said Advocate; whereof the Tenour folio wet h:
George Sprot, notary in Ayemouth, You are
indicted and accused, forsomuch as John,
sometime earl of Gowrie, having most cruelly,
detestably, and treasonably cot^pircd in the
month of July, the year of God 1600 vcar*, to
murder our dear and most gracious sovereign
the king's inn»t excellent majesty : and having
imparled that devilish purpose to Robert Logan
of Restalrig, who ul lowed of the same, and
most willingly and readily underrook to be par-
laker thereof : The same coming to your know*
ledge at the times and in the manner particu-
larly after specified, you most unnaturally, ma-
liciously, and treasonably concealed the same,
mid was art and part thereof in manner follow-
ing. In the first, in the said month of July
1600 years, after you had perceived and known,
tiiat divers letters and Messages had pnst be-
twixt the said sometime eail of Gowrie, and
the said Rolicrt Logan of Rental rig, you being
in die house of Fast-Cast le, you saw and read
a Letter written by the said Robert Logan of
Itestalrig, with his own hand, to the said John,
sometime earl of Gowrie, of the tenour fol-
lowing :

* My I^ord, my most humble duty and sor-
' vice heartily remembered. At the receipt of
1 Tour lordship's Letter 1 am so comfuited, that

* I can neither utter my joy, nor find myself
1 sufficiently able to requite your lurdship with

* due thanks. Ami persuade your lordship in
' that matter, I shall be a-> forward for your
1 lordships honour, as if it were mine own
1 came. And 1 think there is no living Chriy-
1 tun that w..uld uot be content to revenue tint

' Machiavellian massaciing of our dear friends,
' yea, howbeit it should be, to venture and ha-
' zurd life, lunds and all other thing else. Mr
' heart can bind me to take part in that mat-
1 ter, as your lordship shall find better proof"*
' thereof. But one thing would be done :

* namely, That your lordship should be circuin-
' spect and curliest with your brother, that he
< be not rash in any speeches touching the pur-
' pose oi Padua.'

And u certain space after the execution of
the aforesaid Treason, the said Robert Logan
of Rest a! rig, having desired the laird of Bour to
deliver him the aforesaid Letter, or else to burn
it ; and Bour having given to you all Tickets
and Letters, which he then had either concern-
ing Restalrig, or others, to see the same, be-
cause he could not read liimself ; you abstracted
the above- written Letter, and reteined tho
same in your own hands, and divers times read
ir, conteiuiug farther in substance nor is for-
merly set down, according to the words fol-
lowing :

' My Lord, you may easily understand, that
' Mich a purpose as your lordship intend*, th,
' cannot be clone rashly, but with deliberation.
4 And I think for myself, that it were most
' meet to have the men your lordship spake of,

* ready in a boat or bark, and address them as
' if they were taking pastime on the sea, in
' such fair summer time. And if your lordship

* could think good, either yourself to come to
c my house of F*;ist-Ca«tle by sea, or to send
' your brother, I should have the place very
' quiet, and well provided after your lordship's
' advci tihcment, where we should have uo scant

* of the best venison can be had in England.
' And no others should have access to haunt
' the place during your lordship's being here,
' but all things very quiet. And if your lord-

* ship doubt of safe landing, I shall provide all
1 such uecessarits as may serve fur your lord-
' blip's arrival, within a flight-shot of the house.
' And persuade your lonMiip you »hull be as
1 sure and quiet heie, while we have settled

* our Plot, as if you were iu your own chuiu-

* her: for I trust, and am assured, we shall
' have word within few days from them y< ui
' lordship knoweth of; for I have cure to m e
' what snips comes home by. Your lordship
' knoweth 1 have kept the lord Bothwcll quittlv
' in this house iu his greatest extremity, ^iv
' both king and council what ti.ev likid. 1
1 hope, if all thin -is come to pass as I trust
' th'.:y shall, to li.ne both y< ur Wd«h;p and lu>
' lordship at one gO'»d dinner afore 1 die II c
' iocasi. to animate vonr lordship: 1 d..ul t not

* my lord bin all times shall be "Hi. And 1
' am resolved, v.- he i rot ymir lords up >h.di not
1 doubt, of any thing on my put, ytj lu pciil
1 liii% laud, Li -noiir ami sMiuis ; yea, the hazard

* of hrU -h-«ll no! ull'ra) me hum tliat, y.at
1 although the 'cum Id wi;-e alre'idv *« I i-j*-

* The s^.'i'er the mutter were d-'in*, :t \\w
1 the be'tii ; f ,i ti-e k mil's buck -hunting tviij
' he shoitiy; and 1 hope it shiii! \.v* piire v»iui:

* c^ t i i t v (,!;, «: ;l: ui *.o dine 9f;jfc:i:st the n- At

703]

STATE TRIALS, 6 James I. 1608.— Trial <f George Sprot,

[704

€ year. T remember well, my lord, and I will

never forget so long as 1 live, that merry

sport which your lordship's brother told me

' of a nobleman ut Pada* : for I think that a

Parasccvf t»> this purpose. My lord, think

' nothing that I commit the secrecy hereof and

' credit to ibis bearer ; for I dare not only ven-

' tuxe my life, lands, and all other things I have

* else, on hi-< credit, hut I durst hazard my soul
' in his keeping, if it wore possibly in earthly
' men; for 1 am so persuaded of his truth and
' fidelity. And I trow, as your lordship may ask
' him if it be true, he would go to hell-gates for

* me ; and be is not beguiled of my part to him.
' And therefore, I doubt not but this will per-
' suado your lordship to give him tru&t in this

* matter as to myself. But I pray your lord-
' ship direct him home with all possible haste,
' and give him strait command, that he take

* not a wink sleep, while he sec me again, alter
' be come from your lordship. And as your

* lordship desireth in your Leticr to me, either
' rive or burn, or else send back again with

* the bearer; for so is the fashion, I grant/
Which Letter, written every word with the

said Rol»ert Logan his own band, was subscrib-
ed by him after his accustomed manuer, with
this word, Restalrig.

And albeit by the contents of the aforesaid
Letter, you knew perfectly the truth of the said
most treasonable Conspiracy, and the said
Robert Logan of Restalrig, his foreknowledge,
allowance, and guiltiness thereof; like as you
were assured of the same by his receiving of
divers Letters sent by Gowrie to him. and by
his sending Letters to Gowrie for the >ume pur-
pose, and by sundry Conferences bewixt the
said Robert Logune of Restalrig, and thv said
James Bour in your presence ami hearing con-
cerning the said Treason, as well in the said
month of July immediately preceding the at-
tempting of the said Treason, as at divers other
times shortly thereafter, us likewise by the re-
vealing thereof to you by the said James Dour,
who was u|«>r» the knowledge and device of the
said Treason, and was employed ns ordinary
messenger by the said Robert Logan of Restaf-
rig, to the said sometime earl of Gowrie, in the
traiiick of the said damnable Treason, whereby
your knowledge, concealing and gui!tinp^ of
the said Treason was undeniable : yet, for fur-
ther manifestation thereof, about July 1G0«?
years, the said R. Logan of Restalrig showed to
you that Hour had told him, that be had been
somewhat rash to lat you see a Letter whieh
rnme from the carl of Gowrie to the said Ro-
boit Logan of Restalrig, who then urged yon to
tell what you understood by that Let cr. To
whom you answered, That you tor.!.- the mean-
ing of it to be, thrit lie had btvn upon the
coun-el and purpo-e of Goalie's Conspiracy.
And hemnswercd y»>u, Whvcver he had d-»ne,
the wor-t was his own : Ki,t if )Oii would sv.-..»nr
to lvm, that you should never reveal any fiing
of that matter to any |ier*on, he should be the
best sight that ever you unw; and in token of
farther recompense 'fa then gave you t waive

pound of silver. Nevertheless, albeit you knew
perfectly 'he whole practices :nd progre-s of
the said Treason, from the btcimiing thereof'
as said is, a§ well by the s.glii of me said Let-
ters us abo by your Conferences w.ih the said
James* I»ou;-, called Laird Hour, »nd Robert Lo-
gan of Restalrig ; yet during ad the days of
their life-time, who liued till the vear of God
1606 years, or tnereby, and so by the space ot
six years after thi?t, you knew the guiltiness of
the treasonable Conspiracy aforesaid, you most
treasonably concealed the *ame; and so you
was and is ail aud part o," the said most hei-
nous, decestablo and treasonable Conspiracy,
and of the knowledge and coruKiling thereof;
and therefore you ought aud shout i incur, un-
derlie and 6uffer the scbtent? and puiu of
Hiah-Treason. To the token * that > *. have not
only by your Depositions mi bribed wth your
baud, and solemnly nu.!c in pretence of 'nany
of the lords of his majesty'* Council, and of the
ministers of the Borough of Edinburgh, of the
dates, the 5th, 15th and loth days of July lust
by-past> and 10th a::o 11th days of August in*
stant, confessed every head, | oiat, and article
of the Indictment above written, but alio, by
divers other your Depositions subscribed like-
wise with your lnnd,you have ratine'! the same,
and sworn constantly to abide thereat, ami f>
*oal the same with your blood, which you c:m»
r.ot deny.

Which Indictment being read openly in jnd>
ment to the said George Sprot, !..-:"• :•<• be «^is
put to the knowledge of an inquest, . i r*oiifeM%~
ed m the presence of thi -m\'u\ Lord Ju.-i.iee and
n hole Assessors abor*. -named, the Mine and
every point thereof to ftc true and ••! verity.
And therefore the justice ordu.ne-i th;» same
Indictment to be put to tli*j kuov.-lcogcol a
condign Inquest of tne honest, famou* and .li'f-
creet ,,er*nns under-written, They are to sjy
s.*iy : Y\ in. Trmnbill of Ardre, Wm. Fi^er,
.MercliiMit, Burgess of Edinburgh. Robert
Stuart, tin re, Edwaid Jo.n^on, Merchant,
Burgess there, iiarbert .\i»txnell of Cave!:--,
James Tennent oi" Linh<?iisc, Wm. TruniMH,
Burgess of Edinburgh, John ilue,-:is,iii, Mer-
chant, Burgess of Edinburgh, Jonn l«**yis Mer-
chant Burgess thcie, J.une> Pome. veil. M-r-
c-Ir :%t, litirge*s there, Win. S.-^i's-toiir. Bur-
gess t!e.e, John Cunnfcon i:i l/.:itou, Thomas
Smith, iVlerclnut, Burgess of IvSiiV'i'gb, .1 I ow-
tis, Burgess il-piv, r»» J (i. Tr.-v i i.i (aoitryu'll.
Which persons of Inquest bciu-: eho.vn, a worn
aud admitted, after ut Ac*n-..'ti.m of the >aid
Creorge Sprot, before rhtm, o!" .h" ?a".d '-eason-
able,bei.u>'is, and dote^abh* 1 . in-cs eoiiteincd
in the Indic'jncut aforesai J. .:.»•! «»:••!'»:» of the
said Indictment of new again i.i h.-: and thiir
presence ; the said George S;» of of new con-
fessed in the audience of the *\'A Inquest the
aforesaid Indict men r, and cv\-y point thereof,
to be true a.id of veritv. Wlv.-eimon th<* said
sir Tho:nas Hamiltiai of i1iin;n.«i, kui. iii- ma-
jesty'si advocate, as In-fore, a<kc I Act and In-
strument : and in re>pe» ■*, thrreof protested, in
cast* the said Inquest cieaused him of the said

903]

STATE TRIALS, 6 James I. 1608.— /or High Treason.

[706

Crimea for wilful and manifest error. And
therefore the whole fbreunmed persons of In-
quest removed all together forth of Court to the
Inquest House, where they being inclosed, by
plurality of votes elected and made choice of
the said Harbert Maxwell of Cavens, to be
Chanceilor, or Foreman. And having with great
deliberation gravely considered the effect and
whole circumstances of the said Indictment, and
constant judicial Confession made by the party
pan n tiled, as well before the said Lord Justice
and his assessors, as thereafter in presence of the
Inque»t themselves, they all voted upon the whole
rdect of the said Indictment. And being ripely
2to'd well advised therewith, re-entered again in
court, where they all in one voice, by the mouth
•if die said Chancellor or Foreman, found, pro-
nounced,and declared the said George Sprot (ac-
cording to his own Confession judicially made in
their presence and audience) to be guilty, culpa-
ble, filed and convict of art and part o\' the said
most (urinous, detestable and treasonable Con-
spiracy oonteined in his Indictment above-writ-
ten, and of the knowledge and concealing there-
of. For the which cause the said Justice, by
the mouth of the Dempster of Court, by his
Sentence and Doom decerned and ordeintd the
said George Sprot to be taken to the Market-
cross of Edinburgh, and there to be hanged upon
a gibbet till he be dead, and thereafter his head
to be stricken from his body, and his body to
be quartered and demeaned as a traitor, and
liis head to be affixed and *et up upon a prick
of iron upon the highest part of the Toll-
booth of Edinburgh, where the traitor Gowrie,
and others of the Conspirators heads stand ;
and his whole lands, heritages, tacks, stedings,
rooms, possessions, goods and gecre to be
forfeited and escliet to our sovereign lord his
Ube, for his treasonable and detestable crimes
above specifyed. Which was pronounced for
doom.

Extractnm de libro Actomm Adiornalis S.
D. M. Regis per me D. Johnnncui Cohbume
de Onnestoun militem, Clericum Ju&titiaria?
ejuftdem generalem. Sub meis signo et sub-
tcriptione manuahbus.

1 he Doom heing pronounced, the said George
»ai convoyed to u privy house, where he re-
mained at his secret meditation, and afterwards
iu conference with the ministers and others,
uuto the time all things was provided necessary
for his execution : and being brought to the
place where he was to die, he in public audience
of the whole people, at the three sides of the
fccatfold, ratifyed the former Depositions made
by Lim concerning the trcRfronahlc practices in-
itialed and deviied betwixt Gowrie and Kestal-
rig, for the murdering of our most gracious so-
itrcign, :uid bereaving his highness of his life,
and his own knowledge and concealing of their
guiltiness. For the which he humbly craved
God and his majesty forgiveness, being most
wrry and grieved that he had offended God and
i be king's majesty in concealing such a vile, de-
(utaUe and uunatural Treason, cnterprized by
diem against bis gracious so\eicigo, who hath
vol. ir.

been ever so good and gracious to his subjects ?
protesting that if he had a thousand lives to ren-
der, and were able to suffer ten thousand deaths,
it were not a suiHcient satisfaction and recom-
pense for his offence. And that God had pre-
served him from many great perils, when his
life was in extreme danger, to bring him to this
public Declaration of that detestable aud hor-
rible fact, in presence of all the people, uttered
by him in these words following : * To my own

* shame, and to the shame of the devil, but to
' the glory of God.' Aud for satisfaction of the
consciences of all those that have or can make
any doubt of the truth of this so clear a matter,
he acknowledged that his haunting with Hestal-
rig, who was a man without religion, and sub-
ject to many other vices, as also his continual
being in company with the laird of Bour, who
likewise was irreligious and without fear of God,
and hi* being iugyred by them into their mat-
ters after his first sight of Restalrig's Letter
written by him to Gowrie, brought him from
one sin to another, and consequently upon this
grievous crime, for the which most justly, wor-
thily and willingly, he is now to render his life.
Aud thereupon he- desired all the people there
present to beware of evil company, and namely
of the society of those who are void of religion;
saying to them, That this was the most glorious
day that ever his eyes did see. In the midst
almost of these Speeches, he had prostrate him-
self, and fell upon his knees in presence of the
whole people, making a very pithy Prayer, in
the form following :

' O Father, how shall I call thee Father, that
' am so unworthy to be c:dled thy son * I have
' wandered astray like a lost sheep, and thou of
( thy mercy hast brought me home unto thee,

* and hast preserved my life from many dangers
1 until this day, that I might reveal these hid-
' den and secret mysteries, to mine own shame,
' and thy glory. Thou hast promised, that
' whensoever a sinner from his heart will repent
' and call to thee, that thou wilt hear him, and

* grant him mercy.'

And thus he continued a good space in a
most fervent prayer, to the great admiration of
all the standers by. And having ended the
same, one of the Ministers prayed again, and
the Prisoner joined with him, ' That God would
' forgive his sins, and receive his soul to mercy/
After which, Sprot standing up made divers re-
quests: 1. That what he had delivered by his
(Jont'esiion on the scaffold, might be put into
his Process, that the world might take notice
of it. 2. That such as were present (as they
might have opportunity) would be suitors unto
the king, that his majesty would forgive him
this offence ; for the which, he said, lie craved
pardon of God, of his sovereign, and the world.
And 3, he desired those of the ministry which
were present, that wheresoever they came they
would proclaim in the pulpit his Confession of
his crime, his sorrow for the same, and his full
ho|ie that God would pardon him. And to the
end tliat this might be performed, he took the
hands of such ministers as stood near about him,
2i

707]

STATE TRIALS, 7 James I. 1609.— Trial of Robert Logan,

[70S

so binding a promise on them. And here,
being told by the said minister) and other per-
sons of quality, that bein : so near liis departure
out of the world, it concerned him to speak no-
thing but the truth, and th-it upon the peril of
his soul : he answered, That to the end they
should know, that he had spoken nothing but
the verity, and that his Confession was true in
every respect, he would (at the last gasp, give
them some apparent token for the confirmation
of the same. Then fitting biinselt to the ladder,
the Executioner cometh to him, and, as the
manner is, tisking forgiveness of him ; ' With all
' my heart ,'saith he, ' for you do bat youroliice,
4 and it is the tiling I desire ; because bu Bering in
' my body, I sludl in my soul be joined to my Sa-
' viuur.' — Afterward, ganging up the ladder with
his hands loose and untied, hcing on the upper
part tliereof, he desired libeity to sing the 6th

Psalm, and requested die people to accompany
him in the ringing thereof. Which being granted,
he took up the Psalm himself with a very loud
aud strong voice, far by hit accustomed form,
being before his coming to die scaffold a weak-
spirited man, of fechle voice and utterance; and
was assisted with the number of a thousand
persons at the least, who uccoinpunied him in
singing that Psalm. After the ending whereof
he again openly repeated and ratified his said
former Confession : and with that, secommend-
ing his soul to God, he fastened a cloth about
his own eyes, and was cast over the ladder, so
ending this mortal life. Before his last breath,
when he had hung a pretty space, he lift up his
liands a good height, and clapped them toge-
ther aloud, three several times, to the great
wonder and admiration of all the beholden.
Aud very soon thereafter he yielded his spirit.

87. The Process and Trial of R
High Treason, in conspiring
murder King James I. 7 Jam

IN the year 1608, the earl of Dunbar, walking
iu his own garden, and conversing with a coun-
try gentleman, who lived near the place, falling
accidentally to discourse on tlie matter of
Gowrie'* Forfeiture; this gentleman told the
earl, that he being lately in company with one
Sprott, a Notary, who lived in Eyemouth, who
was ordinarily emploved in the laird of Res-
talrig'* service as a notary and trustee, and who
was loog acquainted with this gentleman who
was speaking to the earl; told the earl, That
this Sprott had told him things concerning that
Treason which lie had never heard before; hut
that he had never told it, so long as those con-
cerned were alive. The Earl was curious to
have the information, which the gentleman told
him, and was in short :

* That unquhil Robert Logan of Restalrig,
then dead, was a co-partner and contriver with
the earl of Gowrie, and his brother Mr. Alex-
ander, in all that affair ; and that Sprott had
several letters, yet lying by him, which he had
found amongst Rc»t:drig s Papers, and some
papers belonging to one, commonly called laird
Bour, the greatest confident of any man that
Restalrig had, and who was also intimate with
Sprott the notary/ — W hereupon the carl of
Dunbar acquainted tha King's Advocate, aud
Sprott was seized aud carried into Edinburgh ;
who, before several lords of the Council, did,
with great remorse of conscience, acknowledge,

* That he knew perfectly that Robert Logan,
late or Kestalng, was privy to, and upon the
fore-knowledge of Gowrie's treasonable Con-
spiracy : and for tlie greater assurance of his
knowledge, deponcth, That he knew, that there
were diver* Letters interchanged betwixt them,
anent tlie treasonable purposes aforesaid, iu
the beginning of the month of July 1600 ;
which Letters, Janes Bour, called hurd Bour,

oiiEitT Logan, of Restalrig, for
with John Earl of Gowrie, to

LS I. A. D. 1609.

sscrvitour to Restalrig (who was employed me- .
diator betwixt them, and privy to all that er-
rand) had in keeping ; and shewed the same to
Sprott, in the place of Fastcastle.' — And de-
poned, 'That he did abstract (i. e. steal) quietly
from James Bour, the principal Letter written
by Restalrig to tlie earl of Gowrie, which Bour
had brought back from the earl of Gowrie (as
was tlie custom amongst tluni at that time);
and that when James Bour employed him
(Sprott) to loiik over his Papers; that he did
keep the same, mid that it was yet in hi 3 keep-
ing, and was in his client, among his writings,
where he loft it when lie was taken ;' (and ac-
cordingly, the litter was found thereby the
SheritWrpiitc who was ordered by sir Wm.
llart, Lord- Justice of Scotland, to sei/e the
said chest, and search for this Letter, which
was found, anrl delivered to the king's ud vo-
cal e).

Whereupon the king's advocate produced
the summons of Treason, w hich was raised by
warrant under the seals, on the 5th of Feb.
1609; against all tlie defenders and others
concerned, to compear before our sovereign
lord, or his Commissioner, aud the estates of
parliament^ and justice-general, on tlie 19th
day of April, 1(309, to an.*wer, Ace. And like-
wise produced the verifications of the Execu-
tions, which were sworn to, hy the herald*,
messengers and witnesses, in plain parliament :
all which are contained at length in tlie Records
of parliament ; as are id so the Ictteis of relax-
ation and executions thereupon ; relaxing Ro-
bert Logan, eldest son to umquhil Robert Lo-
gan the accused, from tlie horn, and all perils
thereby: which relaxations were registrated io
publick llecords before the daj of compear-
ance : and then the Lord Advocate produced
for verifying of the diltay and crimes, the prut-

709]

STATE TRIALS, 7 James I. 1609.— for Hi%h Treason.

[710

cipal letters, and did put then in the Clerk-
Register's bands (where they lie among the
public records) ; as likewise the Deposition!! of
the witnesses, taken by the Lords of the Arti-
cles, in common form.

All which being produced in presence of his
majesty's Commissioner, and the estjtes of
parliament, upon the day of 1609,

tbe defenders cited, and not compearing ; the
Advocate desired the Estates declaruiion on
tue relevancy: the true extracts whereof ure as
follow :

Sir Thomas Hamilton of Bimiic, kt. Advo-
cate to our sovereign lord, in his highness'*
name, for proving of the points of the said
summons, and reason and cause of Treason
and Lese Majesty contained therein, repeated
divers missive hills, all written and subscribed
by the said uiuquhil laird of Restalrig. All the
Depositions of the witnesses, examined before
the Lords of Articles before ; and before the
lords of secret council, George Spruit's Depo-
sitions, and conviction and execution to the
death, for the same c iuse of Treason as Cow-
rie : together with divers writs and other pro-
bations, which were presently produced, before
the said estates, by tne said Lord-Advocate, in
our sovereign lord's name, for proving of the
foresaid summons of Treason, and the reason
and cause of lese majesty contained therein:
of the which missive hills ujid depositions pro-
duced by the said advocate in our sovereign
lord's name, for proving the said Summons of
Treason, and reasnis therein contained, ngain&t
the said Robert Logan and his foresaids ; the
tenour follows :

11 Right Honourable Sir ; my duty, with ser-
vice remeinbrcd: Please you understand, my
lord of Gowrie, and some others his lordship's
friends and well wishers, who tenders his lord-
ship's preferment, are upon the resolution you
know, for the revenge of that cnuse : and his
lordship has written to me aneut that purpose ;
whereto I will uccord in case ye will stand to
and bear a part ; and before ye resolve, meet
me and Mr. Alex. Ruthven in the Cunongate,
on Thursday the next week, and be as wary as
you can: indeed Mr. Alex. Ruthven spoke
with roe, four or five days since ; and I have
promised his lordship an answer within ten
days at fartliest. As for the purpose, how Mr.
Alex. Ruthven and I has set down the course,
it will he a very easy done turn : and not fur
by that form, with the like stratagem, whereof
we had conference in T. S. Rut in case you
and Mr. Alex. Ruthven forgather, because he
is somewhat uncautious ; tor God's sake be-
ware with his rackie>sness as to this of Padua ;
for be told me one of the strangest tales of a
Bookman of Padua that ever 1 heard in my
We, resembling the like purpose ; I prny you,
sir, thiwk nothing, although this bearer under-
stand of it, for be is the special secretary of my
has ; bis name is laird Hour, and was old Mau-
eamsu's. ntaa for dead and life, and even so
eew for me. And for my own part, he shall
of all that I do know in this- world, so

long us ever we live together ; for I make him
my housholdrinuu : he is well- worthy of credit;
and I recommend him to von. Alwavs to the

. purpose I t hi ;ik best, for our Plot, that we
meet all at my house of Fast-castle : for I
have concluded tiith Mr. Alexander, who I

■ think shall he meete*t to be conveyed quietly

: in a boat by sea ; at winch time, upon sure
udvenisement, I shall have the place very quiet
and well provided ; and us I receive your an-
swer, 1 will post this bearer to my lord : and I
pray you, as you love your own life, (because
it is not a mutter of mouse) be cirruinspect in
all things, and take no fear but ull shall he

I well. 1 have no wdl, that either mv brother,
or yet Mr. N. R. my lord's old pedagogue,

! know any thing of the matter till all be done
that we would have done; and then I care net
who gets wit, that loves us. When ye have
read, send tins my letter back again with the
bearer, that I may see it burnt myself; for so
is the fashion in such errands : and if you please
write your answer on the back hereof, iu case
yc will take my word for the credit ol th«*
bearer, and use all expedition; for the turn
would not be long delayed. Ye kuow the
king's hunting will be shortly ; and then shall
be best time, as Mr. Alexander has assured
me, that my lord has resolved to cnlcrprize
that matter. Looking for your answer, com-
mits you to Christ's holy protection. From
Fastcastle, the 18th day of July, 1600." Sic
sub»cribitur, Yours to utter power ready,

Re»TALRiG."

" Laird Bour, I pray you haste yoa west to
me about the errand 1 told you ; and we shall
confer at length of all things. I have received
a new letter from my lord of Gowrie, concern-
ing the purpoie that Mr. Alexander his lord*
ship's brother spoke to me before: and I per-
ceive that 1 may have advantage of Dirlcton ;
in ca-»e his other matter take effect; as we
hope it shall. Always, 1 beseech you, be at
me the morn and even ; for 1 assured his lord-
ship's servants, that I shall send you over the
water, within three duys, with a full resolution
of all my will, ancnt all purposes ; and I shall
indeed recommend vou and your trustiness to
his lordship, as ye shall find an honest recom-
pence for your pains in the end. I care not
for all the land I have in this kingdom, in case
I can grip of Dirlcton ; for I esteem it the
pleasantest dwelling in Scotland. For God's
cnuse keep all things secret, that my lord, my
brother, get no kuowledfrc of our purposes ;
for 1 rather beeardedquuk. And so looking
for you, I rest till meeting. (Sic snbscribiiar,)
Yours to power ready, Ri.stai.ric.

" From the Can a on gate, the 18th day of July.
P. S. I am very ill at ease, tliercfore speed
you hither."

" Right honourable sir : all my hearty with
humble service remembered. Since 1 have
taken in hand to enterprise with my lord of
Gowrie, your special and only best beloved ;
as we have set down the plat already ,1 will re-
quest you, that you will be very c Yumsjiect

711] STATE TRIALS, 7 James I. \ GOV. -^Dial qf Robert Logan, [1U

and wise, that no man get an advantage of us.
I doubt nut but you know the peril to be both
life, lands and houour, in case the matter be
nut wisely used. And, for uiy» own part, I
shall have a special respect to my promise that
I have made to his lordship, and Mr. Alexan-
der his lordship's brother, although the scaffold
were set up. If i cannot come to Falkland
the first night, I shall be timely in St. Johnston
on the morn. Indeed, I lippencd for my lord
him&elf, or else Mr. Alexander his lordship's
brother, at my house of Fast castle, as I wrote
to them both. Always I repose on your adver-
tisement of the precise Aday, with credit to the
bearer ; for howrx.it he be but ane sillic glyed
old carle, I will answer for him, that he shall
be very true. I pray you, siiyread, and either
burn or send again with the bearer ; for I dare
hazard my life, and all I have else in the
world, on his message, 1 have such proof of hi*
constant truth. So commits you to Christ's
holy protection. (Sic subscribitur,) Yours to
all power, with humble service ready,

" Restalrio.
" From theCannongate, theS7th day of July,
1600. P. S. I use not to write on the back
of any of my letters, concerning this errand.*'

" My lord, my most humble duty with ser-
vice, in most hearty manner remembered : at
the receipt of your lordship's Letter, I am so
comforted, especially as your lordship's pur-
pose communicated to me therein, that I can
utter my joy, nor find myself able how to en-
counter your lordship with due thanks. In-
deed, my lord, at my being last in the town,
Mr. Alexander, your lordships brother, impart-
ed somewhat of your lordship's intention,
anent that matter, unto me. And, if I had
not been busied about some turns of my own,
I thought to have come over to St. Johnston,
and spoken with your lordship. Yet always,
my lord, I beseech your lord&nip, both for the
safety of your honour, credit, and more than
that, that your life, my life, and the lives of
many others, who may, perhaps, innocently
smart for that turn afterwards, in case it be re-
vealed by any, and likewise the utter wraking
of our lands and houses, and extirpating of our
name; look that we be all as sure as your
lordship, and I myself shall be, for my own
part. And then, I doubt not, but with God's
grace, we shall bring our matter to ane fine,
which shall bring the contentment to us all,
that ever wished for the revenge of Machiave-
lian massacring of our dearest friends. I
doubt not, but Mr. Alexander, your lordship's
brother, has informed your lordship what
course I laid down, to bring all your co-associ-
ates to my house of Fast-castle by sea ; where
I should have all materials in readiness, for
their safe receiving on land and into my house ;
making, as it were, but a manner of pissing
time in ane boat on the sea, in this fair sum-
mer-tide ; and no other strangers to haunt my
bouse, while we had concluded on the laying
our plot ; which is already devised by Mr.
Alexander and me. And I would wish, that

your lordship would either come, or send Mr.
Alexander to me; and thereafter, 1 would
meet your lordship in Leith, or quietly at Kes-
talrig ; where we should have prepared ane
fine hatted kit, with sugar, and comfits, and
wine ; and thereafter confer on matters ; and
the sooner we brought our purpose to pass, it
were the better, before harvest. Let not Mr.
W. 11. your old pedagogue, ken of your com-
ing : but rather would I, if 1 durst be so hold
to intreat your lordship, once to come and see
my own House, where I have kept my lord
Bothwell in his greatest extremities ;' say the
king and his council what they would : and m
case God grant us happy success in this errand,
I hope both to have your lordship, and his lord-
ship, with many others of your lovers and his,
at a good dinner before I die. Always I hope,
that the king's buck-hunting at Falkland this
year, shall prepare some dainty chear for us,
against that dinner, the next year, jocose hoe to
animate your lordship, at this time : but after-
wards we will have better occasion to make
merry. I protest, my lord, before God, 1 wish
nothing with a better* heart, nor to atchieve to
that which your lordship would fain attain
unto ; and my continual prayer shall tend to
that effect ; and with the large spending of my
land*, goods, yea, the hazarding of my life,
shall not afray me from that, although the scaf-
fold were already set up, before I should, falsify
my promise to your lordship, and persuade
your lordship thereof: I trow, your lordship
has ane proof of my constancy already or now :
but, my lord, whereas your lordship desires, in
your letter, that I crave my lord, my brother's
mind anent this matter, I utterly disassent
from that, that he ever should be ane counsel-
lor . thereto ; for in good faith, he will never
help his friend, nor hurt his foe. Your lord-
ship may confide more in this old man, the
bearer hereof, my man, laird Bour, than in my
brother , for I hppen my life, and till that C
have else, in his hands : and I trow he would
not spare to ride to hell's-gate to pleasure me ;
and he in not beguiled of my part to him. Al-
ways, my lord, when your lordship bas read my
letter, deliver it to the bearer again, that I may
see it burnt with my own eyes : as I have sent
your lordship's letter to your lordship again ;
for so, it is the fashion I grant : and I pray
your lordship to rest fully persuaded of me,
and all that I have promised ; for I am resolv-
ed, howbeit it were to die in the morn. I
must intreat your lordship to expede Bour,
and give him strait directions upon pain of his
life, that he take never a wink of sleep, until
he see me again ; or else he will utterly undo
us. I have already sent another letter to the
gentleman your lordship knows, as the bearer
will shew your lordship, of his answer, and for-
wardness with your lordship ; and I shall shew
your lordship farther at meeting, when and
where your lordship shall think it meetest.
Till which time, and ever, I commit your lord-
ship to the protection of Almighty God. Your
lordship's own sworn and buoden man! to obey

713]

STATE TRIALS, 7 James I. iGCHt.— /or High Treason.

[714

and serve with eflbld and ever ready service, to
hit utter power, to his lrte's end. (Sic subscri-

bilUr) KesTALRIG."

" From Gunn's Green, the 29th day of July,
1600. P. S. Prays your lordship hoid me ex-
cused for my unseemly letter, which is nut so
w ell written, as mister were; lor I durst not
let auy writers ken of it ; but took two sundry
idle days, to do it myself. I will never forget
the good sport that Sir. Alexander, vour lord-
ship's brother, told me of a nobleman of
Padua. It comes so oft to my memory ; and
indeed, it is Apurastur to this purpose we luive
in hand." |

" Hight honourable; my hearty duly rcmem- I
bred, ye know, I told you, at our last meeting,
in the Cannongate, that Mr. Alexander my
lord of Gowrie's brother, had spuken with me
anent the matter of our conclusion ; and tor
my own part, 1 shall not be hindmost. And
iinsyne, 1 got a letter from his lordship's self,
for that same purpose. And upon the receipt
thereof, understanding his lordslup's frankness
and forwardness in it ; God knows, if mv heart
was not lifted ten stnges. I posted tins same
bearer to his lordship, to whom you may con-
credit all your heart in that, as well as I •. For,
and it were my very soul, I durst make him mes-
senger thereof, I nave .such experience of his
truth, in many other things. lie is a silly old
glyed carle, but wonder honest ; and as he has
reported to me his lordship'* own answer, I
think all matters shall he concluded at my
house of Fustcastle; for I, and Mr. Alexander
Rulhven, concluded, That ye should come witli
him and his lordship, and only another man
with you, bein<; but only four in company, intil
one of the great fishing-bouts be sea to my
house, where ye shall laud als safely, us on
Lcith-shore; and the house against your lord-
ship's coming to be quiet ; and when you are
about half a mile from shore, as it were pnssing
by the house, to gar set forth a waft'. But fur
God's sake, let neither any knowledge come to
ray lord, my brother's ears, nor yet to Mr. VV.
R. my lerd s old pedugogue ; for my brother is
kittle to shoe behind, and dare not enterprize
for fear, and the other will dissuade us from our
purpose with reasons of religion, which I can
never abide. I think there is none of a noble
hearty or carries a stomach worth a penny, but
they would be content and pi ad, to see ane
contented revenge of Grcyst oil's death ; and
ibe sooner the better his lordship be -quick ;
and bid Mr. Alexander remember on the sport
be told me of Padua : for I think with myself,
that the cogitation on that should stimulate
your lordship. And, for God's cause, ufc all
your courses cum discrttione. Fail not, sir, to
send back again this letter : for Mr. Alexander
learned me that fashion, that 1 may sec it de-
stroyed myself. So, till your coming, ever
commits you heartily to Christ's holy protec-
tion. From Gun's Green, the last duy of July,

a«oo."

The superscription is torn away from the last
letter.

The Depositions of the. Witnetset produced,

are us follow :

u Mr. A lexander Watson, minister at Colding-
ham, of the nge of 50 years, married, depones,
The five missive Letters subscribed by the laird
Restalrig, and produced in process by the Lord
Advocate, for proving of the reasons of Treason
pursued against Robert Logan, *on and appa-
rent heir to Robert Logan of Ke^talrig, being
shown to this deponent ; and he having at lentith
sighted and considered the s-une, depones, That
he takes upon liis conscience, that he verily be-
lieves, that the said five missive Lciteis, and
every one of them, are verily and truly written
by the said unquhile Robert Logan of Restalrig,
with his own hand : and proves this of some of
his knowledge, that not only he thinks, that
the character of every letter resembles perfectly
the said unquhile Robert's hand-writ every
way; hut also agrees with his fashion of spelling,
which he has particularly remembred in even-
one of the said missive Letters, in thir points
following : First, That he never used to write
ane s in the beginning of any word, such as sou,
xor's, zcld, lea, and sick-like : but ever writ y,
inftead of the said z. That he wiit all word>
beginning with w} with single v ; and w hen that
letter w fell to be in the midst or end, he pur
ane double zv. That when he writ quhttn, qu~
hair, qlk, or any such words, whilk use* :o be
written and spelled by others, with which he
wrote only qh9 quhe.ny quhuir, uiu\ «ick-like.
Whenever a word began with ion, he never
wrote con at length, out wrote with an /7.
Whenever / fell to be in the end of a word, he.
wrote it without a stroke through t, and did the
like whenever it fell in any part of ane word.
And for further confirmation of the premisses
he produced three Letters written every word,
and subscribed by the said umquhile Robert
J/>gun of Restalrig, and comparing them to the
five other Missives produced by the Advocate,
show evidently the direct conformity of the sa-
men, as well in the character n»d tine rej-cm-
blance of the hand- writ, as in the spelling and
writing of divers writs, syllables and letter, ac-
cording to the particulars ahow -specified. (Sir
subscribitur,) Mr. AiiiXAKnrn Watson."

" Mr. Alexander Smith, minist* r of Chirue-
side, of the age of 30 years •>»' thereby, married,
depones, That he whs well acquainted with the
umquhile laird of Restalrig, by reason he was
pedagogue to his bairns, and has seen very
in»ny of his hand-wiils; and having seen, rend,
and at length considered the five missive Letteis
produced by the Advocate ; and inquired, if he
knew the same to be the laird of Restalrig**
proper hand-writ ? Declared, upon his great
oath, That he certainly Micves the saids five
letters, and every word thereof, to be the laird
of Restal rig's proper hand writ ; because he
finds the character thereof to ngrr e every way
with the shape of his ordinary writing ; and re-
marked very particularly the manner of Rest aU
rig's spelling of many words, otherwise nor other
men commonly uses to write and spell, accord-

713]

STATE TRIALS, 7 James I. 1609.— Trial of Rdbm Logan,

1?1G

jnc to the hail p:>rt cukir* rcm::iked oi hirf^re9
by Mr. Alexander Wut«.nn, th*» witness imme-
diately preceding ; and, in the*e points, and in
all ut tiers, conform to the said Mr. Alexander
Watson's deposition in ull thi:igs ; redden* erin-
$a-n %e tent id, bcr-.iu-e he was perfectly acquaint-
ed with the la rd nf Kt -taint's h Rod -writ in ins
lifetime; and w:- pe-'facoguc to his bairns
many year:?, and nt iii?» company. (Sic sub-
set it: iur,; Mr. Alexandkr Smith."

44 Sir J oh!! A molt, Provost of Edinburgh,
of I he ageof threescore ten years, or thereby,
ni;i tried, deputies, That lie was well acquainted
with Uobert l,ogan of Rcatalrig, and with his
hand- writ, he: <i'jm* tie had received di\ ers of"
Ins letter:* himsc.f. and seen many other letters
written bv hiui. And tlie five missive Letters
produced by tiie Advocate beins^houru to him;
a;:d he having seen and considered the same,
renieiulii red that he h;id seen, read, and per-
fectly considered the Laird of Restalrig's hand-
writ, as the letter*, written by the deponent at
any lime, or hit own hand-writ. And so takes
on hi* cuubcieuce, That the foresaids five mis-
»i\e Bill-?, produced by the Advocate, are the
proper hand- writ and subscription of the said
umquhilc lain! of Res taint, be his judgment.
Ana, for veriui.aiiou thereof, lias produced four
writ*, all written be the said uniquhile laird of
RestaJrig, and sent to this deponent, to Archi-
bald Johnst'iuu, agreeing perfectly iu spelling
and character, with the saids missives. (Sic
subsenbitur,) Sir John Arkott."

" Alexander Cuik, SheritT-Clerk of Berwick
of tlie age of 50 years, or thereby, married,
depones, That he was well acquainted with tbe
iiinquhile laird of Kestalrig, and has seen many
and sundry of his writs, and received divers of
his letters directed to himself; and being de-
sired to see ami con aider tlie live Letter* pro-
duced by tlie Advocate*, and to declare whether
he knew and esteemed to be all written by um-
quhile the laird of Restnlrig; depones, upon
his conscience, That he believes and esteems
the saids hail letters to be all written by the
laird of RestaJrig ; reddens causam scienter, be-
cause, not only the character agrees etery way
with the shape of Restalrig's hand-writ; but
albo the spelling in many particulars, wherein
Restalrig di Tered from other men's form of
writing. And in tlie particulars thereof, de-
pones conform to the two first Witnesses, the
ministers of Coldinghuro and Chirneside ; red-
dens eandem cunuin tcientia. (Sic subscri-
be tur,) Allxandlr Cl'IK."

" William Home in Aytoun-mill, of the age
of 33 years, or thereby, married, depones, That
all the five Missive^ above- written, being shown
to this deponent, and having at length consi-
dered every one of them, takes upon his con-
science, That to his knowledge, that the saids
live missive 1< iters are all written and sub-
scribed by the unvgu.hile laird of Restalrig ;
for the special reasons contained in the Depo-
sitions made by Mr. Alei. Watson, and Mr.
Alex. Smith, ministers ; and Alex. Cuik, She-
nfOkirk of Berwick ; lo whoa he ii conform

iu all things, redden eandem causam tcienti*.
(Sicsuhsc-j Wm. Home."

" John Home, N-ita-v in Armouth, of the
age ot 12 year*, or thereby, toiuttt%n depone*,
1 he foresaids five miv»ive bills, being at length
j sighted and considered by this deponent, de-
pone* and declares, upon conscience, to his
knowledge, all the ^aids live Missives are the
laird of Restalrig's proper hand- writ and sub-
scription, for the reasons above-written in the
deposition of Wm. Home, reddens eaniem ec.u-
Mam tc Untie. (Sic subsc.) John IIurxe."

" Mr. Wm. Hove;, minister at Aytoun, of
the age of 30 tears, or thereby, married, dc-
| pones, That he knew r. til the laird of Restalrig,
j and has seen of his writs, and produced ane
j letter, written by Rtstairig to the laird of
Aytoun, as written with Restalrig's own hand-
writ. And having considered the lite writ*
produced by the Advocate: declare**. That he
tlunks them likeiv to be his writ?; and that the
same appears to he \ery like his writ, by ibe
conformity of iclteis and spelling. (Sic subsc.;

Wm. Hocg."

The Deposition and Deci ahation of George
Sprott, u> emitted by him, both before the
Jury, judicially; and aUo upon the scaf-
fold, ut the time of his Execution, ou the
12th of Aug. 16U8. Which Deposition and
Declaration was made before the Council,
on the i Oth Aug. 1608, written by the Clerk
of Council, Jui nes Primrose ; and subscribed
by Sprott's own hand, in the presence of
the earl of Dunbar, the earl of Lothian,
the bishop of Ro«s, the lord Holy-rood-
House, the lord Scoon, the lord Bl an tyre,
sir William Hart, Lord Justice, Mr. John
Hall, Mr. Patrick Galloway, Mr. Peter
Hewnrt, all three Ministers of the Kirks of
Edinburgh.

George Sproir, notary in Aymouih. being
brought to the scalfoid and place of execution,
he, in public audience of tlie hail people, at
the four nooks of tlie scalV<»ld, mtiued his
former Deposili m, uuent his knowledge, and
concealing of Uestnlrig's guiltiness of Cowrie's
Treason: for tlie which, he craved God and his
majesty humble forgiveness; being moat sorry
and grieved that he had offended God, and the
king's majesty, in concealing such a vile, de-
testable, and unnatural Treason, euUrrprized
by the earl of Gowrie and laird of Restalrig,
against his natural king, so good and so godly
a prince, who has ever been so gracious to hi.<»
subjects and to this hail island: protesting.
That if he had a thousand lives to render, and
were able to suffer ten thousand deaths, it is
not sufficient satisfaction and recompence for
his so foul and horrible offence; and that God
had preserved him from many great perils,
when his lite was in extreme danger, to bring
him to this public declaration of that detest-
able and horrible fact, in testifying of tbe
truth ; as he said publickly, in presence of all
tbe people, in these words following : ' To ray
* own shwne, the shame of the devil, and the

717]

STATE TRIALS, 7 James I. 1609.~/or High Treason.

[71ft

• glory of God; for satisfying the consciences
' of ail these (it* any be), that has, or can make
' any doubt of the truth of this so clear a matter/
And be acknowledges, that his haunting with
Restalrig, who was a man without religion,
and Hibject to many other vices; and his
thoughts of hinisi If in thir matters, after the
one fright of Rc"t ul rig'» Letter written to Cow-
rie, aud his continual tearing of company with
HfStalrig and hiirrl Bour, who was irreligious,
and without fear of God, brought him from one
sin to another, and consequently to (his griev-
ous crime, for the which, most justly, worthily
and willingly, he is now to rendtr his life. And
he desired all the people to bewaie of ill coin-
puny ; and namely, of the company of those
who -are void of religion. And he dolred, that
this his Declaration might be inserted in his
Process : as also, lie desired the ministers of
God's Word to publish this Declaration to their
folks, from their pulpits ; and took every one
of them «bo were present by the hand, with
their promise to do the same: saying unto
them, That this was the most glorious day that
ever his eyes did see; and with these words he
prostrates himself, and falls upon his knees, in
presence of the hail people, and made a very
pithy Prayer. (See p. 706). And so he con-
tinued a good space, in u most fervent prayer,
to the great admiration and rejoicing of all the
people; and in a better form and manner nor
any of the beholders and hearers can be able to
set down iu writ, the same not being written
ii the present time, because there was no place
of writing upon the scaffold, in resj>ect of the
prease and multitude of people. And going
up the ladder, he desired liberty to sing the
6th Psalm, and requested the people to ac-
company him in singing thereof; which being
granted, and he being at the ladder- head, the
tame was rune up and sung by himself, with a
very loud and mighty voice, and was assisted
withabote the number of 500 persons, who
with tears accompanied him in fringing of that
tong. After the ending thereof, he repeated
and ratified his former Deposition: and with
that, recommending his soul to God, he was
thrown over, and so ended his mortal life. In
witness whereof, we under-subscribers, who,
for the most part, were all of us upon the scaf-
fold with him, and remained with him unto the
time of Itis death ; and other* of us in so con-
venient places near to the scaffold with him,
that we did bear all that was spoken by him,
have subscribed thir presents with our bands.
•Sic subsc.) Glasgow, B. Galloway, M. B.
Brechin, Balfour of Bur ley, Holy- rood-house,
John Preston, Thomas Regra, Peter Sharp,
Balcanquhal, Mr. llcwat, Mr. George Rlytn,
Mr. Patrick Galloway, John Hull, Walter
Charles Lumsden, Richard Tobie, Baillie of
Edinburgh, William Speir, Baillie, James Ain-
ftly, Baillie of Edinburgh, &c.

What U contained in this speech !>eing con-
sonant to his Deposition made before the Privy
Council, as also before the Inquest; here is
aided the Deposition, a* emitted by him. —

This Sprott, after diuers Examinations, being
moved with remorse of conscience, for the long
concealing of the foreknowledge of this treason-
able Conspiracy ; confessefh, dcchireth, and
deponeth, with the pcril^f his own life :

" That he knew perfectly, that Robert
Logan*, late of Restalrig, was privy, and upon
the foreknowledge of Gowrie's treasonable Con-
spiracy. And for the greater assurance of his
knowledge, deponeth, that he knew that there
were divers Letters interchanged betwixt them,
anent the treasonable purpose aforesaid, in the
beginning of the month of July, 1600. Which
letters, James Bour, culled laird Bour, serritor
to Rtstalrig, (wh> was employed mediator be-
twixt them, and privy to all that errand) had in
keping, and she we d the same to Sprott in the
place of Fa>tcai»tle. And producing the earl
of Gowrie's letter to Restalrig; Which Letter,
written every word with Rcstalrig's own hand,
wus subscribed by him after his accustomed
manner, (Rtstulrig;) and was sent to the
earl of Gowrie, by the said Jumcs Bour. After
whose return wahin five days, with a new
letter from Gowric, he staid all night with Re-
stalrig in Gun's Green (a house of Restalrig's) :
and Restalrig rode to Lothian, the morn there-
after, where he staid five or six days. Then
after his returning passed to Fastcnstle, where
he remained a certain short space. And fur-
ther deponeth, That he saw and heard Rcstal-
rig rend the last letter, which Bour brought
back to him from Gowrie, and their conference
thereanent. And heard Bour say, sir, if you
think to make any commodity hy this dealing,
lay your hand to your heart. And Rcstalrig
answered, that he would do sts he thought best.
And further said to Bour, howbeit he should
sell all his own land that he had in the world,
he would pass through with the earl of Gowrie';
for that matter \voufd give him greater content-

* Great part of this Evidence is in the Trial
of George Sprot, No. 86, though not so full.
For the earl of Cromertv, in his Account of the
Conspiracies of the earl of Gowrie, (from wkenrf-
this i* taken; ws, p. l'JO, * Mr. Crawford did
bring a pamhlet printed at London, anno 1609,
published by Dr. George Atibnr, then arch-
bishop of Canterbury, who being providentially
in Scotland iu the year 1608, the doctor's
curiosity brought him in amongst the multitude
of hearers of that Trial, of G. Sprott, whereby
he was so convinced of the truth of Gowrie's
Treasons, and of the malice of the king's ca-
lumniators, as moved the good doctor tointre.it
for an extract and account of the whole pro-
cess, attested by sir William Hart, Lord Justice
of Scotland, at that time (which the doctor
hn.ug'it with him to Knglund, and cuu«ed it to
be printed, with a long Preface, from which
the Trial of G. Sprott, is taken.) But th.ir
Paper, printed at London, being drawn out as
a Memorial for Dr. Abbot's own use, aud not
as a full Abstract of what is recorded, which I
now publish from the original Depositions, Let'
tors, and utlur Writs, lying in record.

719]

STATE TRIALS, 7 James I. 1G09.— Trial of Robert Logan,

[720

ment, nor if had the whole kingdom: and
rather or he should falsify his promise, and re-
call his vow that he had vowed to the earl of
Gowrie, he should spend all that he had in the
world, and hazard hk life with his lordship.
To whom Bour answered, You may do as you
please, sir ; but it is not my counsel that ye
should be so sudden in that other matter. But
.for the condition of Diihoun, I would like very
well of it. To whom Kestalrig answered, con-
tent yourself, I am at my wit's end. — And far-
ther Sprott deponeth, That he entered himself
thereafter in conference with Bour, and de-
manded what was done betwixt the laird and
the earl of Gowrie ? And Bour answered, That
he believe.) that the land should get Dirltoun
without either gold or silver, but feared that it
should he as dear unto him. And Sprott en-
quiring how that could be: Bour said, they had
another pyc in hand nor the selling of any
land ; but prayed Sprott, for God's sake, that
he would let be, and not trouble himself with
the laird's business; for he feared, within few
days, the laird would either be landless or life-
less."— And the said George Sprott' being de-
manded, If this his Deposition was true, as he
would answer upon the salvation and con-
demnation of his soul ; and if he would go to
death with it, seeing he kuoweth the time and
hour of his death to approach very near? de-
pone th for answer, " That he hath mjt a desire
to live, and that he knows the time to be short,
having care of no earthly thing, but only for
clearing of his conscience in the truth of all
these tilings to his own shame, before the world,
and to the honour of God, and safety of his
own soul : That all the former points and cir- '
cum stances contained in this his deposition,
with the deposition made by him the 5th of
July last, and the whole re in an ten depositions
made by him sen that day, are true ; which he
will take on his conscience, and as he hopeth
to be saved of God, and that he would seal the
same with his blood." — And farther, being
demanded, where this above- written Letter,
written by Rcstalrig to the earl of Gowrie,
which was returned again by James Bour, is
now ? deponeth, " That he abstracted it quietly
from Bour, in looking over and reading Bour's
letters which he had in keeping of Ilestalrig's ;
and that he left the above-written letter in his
chest among his writings, when he was taken
and brought away, and that it is closed and
folded within a piece of paper.'' Tins foresaid'
Deposition was made by him the 10th August,
1(308, written by James Primrose, Clerk of his
majesty's Privy-Council; and subscribed with
the said George Sprott's own hand ; in the pre-
sence of the earl of Dunbar, the earl of Lothian,
the bi>hop of Uoss, the lord Scoon, the lord
Holy-rood- house, the lord Blantyie, sir W.
Hart, hi' majesty's justice, Mr. John Hall, Mr.
Patrick Galloway, Mr. Peter Hew art, minis-
ters of the kirks of Edinburgh. (Subscribed
with all their hands.)

And aLo the 11th day of the foresaid mouth
:\nd year, the said George Sprott being exa-

mined in the presence of a number of the Coun-
cil and ministers aforesaid ; and it being de-
clared to him, That the time of his death now ^
very near approached, and that therefore they '
desired him to clear his conscience with an up-
right declaration of the truth; and that lie
would not abuse the holy name of God, to make
him, as it were, a witness to untruths; And
specially being desired, that he would not take
upon him the innocent blood of any person
dead or quick, by making or forging lies and
untruths against them :

" Deponeth, That he acknowledgeth his
grievous offences to God, (who hath made him
a reasonable creature) in abusing his holy name
with many untrutlis sen the beginning of this
Process ; but now being resolved to die, and at- .
tending the hour and time when it shall please
G'id to calf him, he deponeih with many attes-
tations, and as he wisheih to be participant of
the kingdom of heaven, where he may be
countable and answerable upon the salvation
and condemnation of his soul, for all his do-
ings and speeches in this earth, that all that
he hath deponed sen the fifth day of July
last, in all his scverall depositions, were true
in every point and circumstance of the same;
and that there is no untruth in any poiut
thereof."

And having desired Mr. Patric Galloway to
make a prayer, whereby he might be comforted
now in his trouble ; which was done. " The '
said deponer, with many tears after the prayer,
affirmed this his deposition to be true ; and fur
the confirmation thereof, declared, that he
would seal the same with his blood."

I had almost forgotten that, wliich in this
action of his death was strange, and in a man-
ner marvellous. For being urged by the minis-
ters and other of good rank upon the scaffold^
that now at this end he should declare nothing
but the truth (touching the matter for which he
suffered) on the peril of his own salvation and
condemnation of his soul ; he for the greater
assurance of that his constant and true l)epo4»
sition, promised (by the assistance of God; to
give them an open and evident token before
the yielding of his spirit. Which he accom-
plished thereafter: for before his lust breath,
when he had hung a pretty space; he lift up
his hands a good height, and clapped them to-
gether aloud three several times, to the great
wonder and admiration of all the beholder*.
And very soon thereafter he yielded his spirit.

As in the Account of Gowrie'* and his bro-
ther's Process, 1 did not insert the Libel and
Summons, nor Executions, zcrbutim : as being
very tedious and ubeless to readers ; on the
same motives I do so here, but I insert the
Doom and Sentence vrrbatim : the Libel,
Summons and Autographons of these and
others being at full, in the public llccords, and
patent to all emjuirers.

Jure 1609. To whilk Summons, with the
Executions and Indorsations tl hereof respective
foresaids, being this instant day read in pre-
sence ot his majesty's Commissioner and Estates,

721] STATE TRIALS, 1 James I. . I Cm.—Tltc Trial qf Lord Bdbnerinoih. [729

of parliament, first in Latin, and thereafter in
tScciU ; The said Kotart Logan being ott time*
called <if new, nt the Toll>ooth window of the
said Court of Edinburgh, to have compeared
aud answered to the said Summons of Treason,
and Reasons and Causes therein contained:
And lie not compearing to have defended in the
said matter : and to have answered t> the s»ai<l
^urnraons, The said sirThomus Hamilton of Byn-
me.kt., Advocate to our sovereign lord, desired
the said estates declaration, if the I lea sons of
(lie said Summons were relevant : the whilk
Kstates found the said summons and Reasons
and Causes therein contained relevant. There-

fore the suid Advocate of new for proving of the
foresaid Summons of Treus»on raised against the
said Robert Logan, bearing and containing as is
above- written ; repeated all the foresaid mis-
sive Bills, and the saids Depositions of the said
Witnesses examined before the saids Lords of
Articles and Lords of Secret Council respec-
tive ; and also George Sprott's Deposition,
Conviction and Confession, in Judgment, and
at his Execution to the death, for the suid cause
of Treason ; with the hail oilier Writs and pro-
bations produced and repeated by him of before ;
tor proving of the foresaid Summons of Treason,
and Reasons therein contained ; aud desired the
saids Estates of parliament yet, as oi before, to
advise the probations foresaids, led and deduc-
ed in the said matter ; and to pronounce their
senteuce of parliament thoreuntil, according to
the said probations and their consciences : And
thereafter, the hail Depositions of the Wit-
nesses, missive bills, and hail writs, and proba-
tions, being read, seen, and considered by the
foresaids hail estates of parliament; and they
therewith being ripely advised, t he said lord coin-
niusiouer and estates of parliament findes, di-
flerns, and declares, That the foresaid umquhil
Robert Logan of Itestnlrig committed and did
ia his life-time, open and manifest Treason, in
ail tin? points, articles, and manner, contained

in the said Summons : and therefore it was
given for doom by the mouth of Divid Lindsay,
Dcmp>ter of parliament, in manner and form
as follows :

' This court of parliament shows for law,

* that the said umquhil Robert Logan of Res-
1 tairig, in his life* time committed the fore-
' suid crime of treason and lose majesty ; and

* that he was art and part guilty, and partaker-
' thereof, against our sovereign lord and autho-
' rity royal ; and that the foresaids cruel, wick-»
' ed aud treasonable crimes were intcrpri'ed,
' by his causing, persuasion, counsel and help.
1 Likens, the said umquhil Robert Logan of
' Rcstalrig, treasonably counselled the foresaid .
' crime of lese majesty to his death, and in his

•' death, in all mauuer, at length contained in
' the said summons: and therefore, depones

* and declares the name, memory and dignity
' of the suid uinqujhil Roltert Logan of ifestnl-

* rig, to be extinct and abolished, and his arms

* cancelled, riven and delete furth of the books

* of anus, and nobility ; so that his posterity
' shall be excluded, and be un habile to possess
' or enjoy any omccs, honours, dignities, lands,
' tenements, rooms, rents, possessions or goods,
' moveable or immoveable, rights and others

* whntsomever, within the kingdom, in all time
' comiiig; aud that ail the said goods, lands,

* rooms, tenements and other goods, moveable
' and immoveable, rights and others whatsom-
< ever pertaining to the said umquhil Robert
1 Logan of Rest. d rig; or uhich might otherways
' have pertained to huu, at any time, since his
1 conspiring of the said treasonable crimes, to
' be escheat and forcfaultcd to our sovereign
'lord; to appertain and remain perpetually

* with his majesty in propei ty. And this 1 give
' for Doom.'

AW, Mere, as in Gowrie's Process, that the
citing of dead persons is among the legal forms,
prescribed both by uur laws, aud laws of seve-
ral other nations.

* ^

88. The Trial of the Lord Balmerinoth,* at St. Andrews, for High
Treason: the 30th of March, 7 James I. a.d. ItiOjj. [Copied
from a MS. in the Bodleian Library, lloluhe in Archivo, A.
3033. 44, 10. And though short, is a more perfect Copy than
that in the Cotton Library, Julius, I\ (>. N. J4.J

1 HE Lords being set, the lord Balmerinoth
was sent for: and being come, the Lord Advo-
cate t'dd him, There was a Warrant come from
his majesty for lift Trial, aud therefore desired

* The lord Halmeriuo was a professed Pro-
testant: bus, U|K>ii what motivu is not known,
he often prosed the king to write a Letter of
Compliment to the Pope, whirl), it S'm ins, h.s
majesty had as ofcen re fuv'd to do. lien -upon,
as the thing is related, B.tlmt riuo wr.t the J.et-
ter, and bringing the king several Dispatcher at
a time when his mtgetty was in huEtc to be «one

V.DL. H.

to know, whom he had entertained to speak fir
him.

lie answered, " 11*' had great necessity t<\
1 speak, the cau*-c being •ueh as concerned hi*

a hunt inc. thrust it in anions: the r»>t ; and the
kin». through iii:idvurtrucy,iii that hurry, signed
it. The Letter rims nund, was >rnt away, and
no iimie heard of it till Mime years after, cardi-
nal IlelUnuilie liUMltiiiiiinir of it to the king's
disadvantage, hi** m:ije*iy was nbli^ed to rake
notice of; and to question the Secretary about
it.

1f28] STATfi TRIALS, 8 James I. 16lb. — Hie Case <f Proclamation*. [734

life and estate; but he had greater necessity to
hold his peace, by reason of his offence, which
Was such as it admitted no excuse ; and my
grief for it so great, as it will not sutler me to
extenuate my critre: aud therefore I will'nei-
ther make nnv fiiei-d interested in that, where-
unto iiivm.1i' fell witVut ihe advice of any; nor
will I rtoire a lawyer to make that reem less,
which 1 would have all the world know to be
such as it is. — lleiein are two points in vMiich
I would h'we all men satisfied concerning his
majesty : First, for his majesty'* hmocency in
the writing of the letter ; for I protctt I could
never draw him to hear with patience my mo-
tion. Thit he did mterlv aud absolutely refuse
to take that cour-c against conscience, which
would neither satisfy me, who in a politic natu-
ral course had conceited it might be helioveful
for his majesty ; and so applied myself to that
crooked device, which hath worthily brought
me to this estate wherein I now stand. — The
second thing concerning his majesty, is this :
That whereas some in malice to his majesty, or
my friends in commiseration of my estate, may
think and report it too rigorous and cruel a
course, which is held against me in a matter of
this moment, the suggcMingof a letter of recom-
mendation, to proceed against my life and
estate ; I would have such know, that bis ma-
jesty's clemency m many ways testified unto
the world, in cases that have seemed more'
Aearly to concern him ; and therefore men
j-hould not judge ot* his majesty's disposition
to mercy by this nation ; but rather cast
tht ir eyes upon my imhappii:<.*s«, who have
uilcxidcd in such a point as hi-, majesty can ex-
tend no favour to nut without the damage of his
own honour, which being dearer to him lh.:n
his life, it m-. st need-, be iijore tendered than
twenty thousand Mien li\es as mine. And "there-
fore I desire not to be spared at so dear a rate
lis the impeachment of his majesty's honour. —
There are likewise two thing* cuii(*ernin£ my-
self, which I desire all men t-> understand,
first, 'lhat I had no aim at the alteration of
Religion, or to bring in a Toleration, or what
jrou will term it, by the writing of tint letter:
but merely n» politic couive, as I have said,
which, as a natural man, 1 conceited might fur-
ther his majesty's right. And this I protest to
be true, as I shall answer God in the Day of
Judinum, when the secrets of all hearts s!i.dl
be disclosed. — Next, 1 would have no man think

that it was gain or any private ndrantnge that
drew me to that; for! protest I never received
or expected the least reward from any prince
in the world, save Irom the king my master.
And this, as I shall answer the great God in
heaven."

'I his said, the Jury was called, and in their
hearing was read the Indictment, which aggra-
vated his crime by bis majesty's favours to himr
which had deserved more regard; by his majes-
ty's refusal ; by the dangers which did follow,
or might have done; imputing all the Treason*
which have been a-foot since, to be fruits of that
letter; and lastly, charging him with having in-
telligence with foreign estates, and enemies of
the Gospel, for the subversion of the state of
Ilcligion.

To all these he replied not one word.

Then was read his Confession taken in Frank-
land, the effect of that tvhich he made in Lon-
don. Then was read the Speech he uttered
before the Council at Whitehall, containing hi*
sorrow, his sins, the favours he had received,
his un worthiness of them, his desire to give lu*
majesty satisfaction for his offence to the last
drop of his blood. Last, was read a Lettef
from his majes'y to the Lord Advocate, shew-
ing his majesty's refusal to listen to the Lord
President's motion, and setting down some cir-
cumstances which pasH»d betwixt his majesty
amr the Lord President at the time of the re-
fusal ; against all which the President said no-
thing. '

So the Jury going together, after a time re-
turned, and found him Guilty of ail the parts of
the Indictment.

Then the Lords conferring upon the Bench :
my Lord Justice signified, That they were not
to proceed further till they knew more of the
king's',4 leasure. And so advising the I/>rd Pre-
sident to fit himself for God; and giving the
Jury t hunks for their pains and care they had
of his majesty's honour ; the court rose.

He was by order from court detained a prij
soner for some time ; and afterwards made :\
*ort of prisoner ;«t larire : till at last, in consi-
deration of his submissive behaviour, and tlie
suffering* he had undergone; the kin* wn*
pleased to oardun him, and to restore his blood
and estate.*

* His son was tried for a Libel in the follow-
ing reign. See a. d. 1631.

8y. The Case of Proclamation's. Mich. 8 James I. a. r>.

[12 Coke's Reports, 74. J

1610.

MEMORANDUM, that upon Thursday, CO
Stpt. Hcgis Jacohi, I was sent for to atteud the
lord chancellor, loid treasurer, lord privy te.il,
and the chancellor of the duchy, there being
present the attorney, the solicitor, and record-
er: and two oucstious weie mined to me by
tue lord treasurer ; the one, if the king by ius
proclamation may prohibit new buildiugs in and

about London, ccc the other, if the king may
prohibit the malting of starch of wheat; and
the lord treasurer said, that these were prefer-
red to the kint; as grievances, and against the
law and justice: aud the kiuu hath answered,
that he v ill confer with his privy council, and
his judges, and then he will do right to them.
To which I answered! that these questions

-*»

Wj] STATE TRIALS, 8 James I. 1610.— 77«? Case of Proclamations.

[725

were of great importance. «. Thit they con- [ 36, &c. 31 II. 8, cap. 8, hie infra: also the
corned the answer ul lie kbit' to the bud}-, viz. I kinj; cannot create any offence by his prohibi-
ts die coniinou* of tie; house of parliament, j tion or proclamation, which was not an orVence
3. That I did not hear of these questions until ! be fore, tor tint was to change the law, and to
tins morning at nine of the clock ; for the gritv- ' make an offeneo which was not ; for * uhi nou
anccs were preferred, uud lite answer made \ * *:>t lex, il>i non v< transgres»io :* ergo, tl.tt
when 1 hus in my circ.iit. And hbtlv, both whichrannot be punishe-t without proclamation,
tlie Proclamations, which now were shewed, ' cannot be punched with it. Vide le stdt. .SI
were promulgated, anno 5 Jnc. after my tune of | Hen. f>, cap. y, which act *iivc*»» more power to
attorneyship: and lor these re: is uis 1 did bum- I the king than he had before, and yet theie it it
Vly desire them that 1 mi^ht have conference ; declared, that proclamation* >hall not alter the
with my brethren the judges about the answer | law, statutes, or customs of the realm, or iin-
uf the lung, and then to make an advised an- j peach any in his inheritance, good.*, hody, life,
iwer according to law and reason. To which i &c. But if a man should be indi' ted lor a
the lord chancellor said, that every precedent ' contempt ngaiutt a proclamation he shall be
bad first a commencement, and that lie would j lined and impiiiooed, and so impeached in bis
advise the judges to maintain the power and body and g*<ods. Vide Fortescue, cap. 9, I'd,

prerogative of the kin:;; and in cases in which
there is no authority and precedent, to lea\e it
t> the king to order in r, according to his wis-

34, 30, 37, &c.

lint a thin;; which is punishable by the law,
by fine, and v.. v. -lisumneut, if the kin;; prohibit

doll), and for the good of his subjects, or o;hcr- | it by his proclamation, hef.ro that he wiii pu-
«ise the king would he no moie than th<* duke j iiH> it, and so warn hi& subjects of ihv? pud of
of Venice: and that the kin-' was so much re- ■ it, there if he permit it a'ler, this as a c:. con-
strained in his prerogative, that it was to be :tance aj^iavates ihcolfune; but he by pr>-
feired tiie bonds would be broken: and the emulation cannot make a tiling unLwful, whit h
lord privy seal said, that the physician was nc<t was permitted by the law before : and this w::s'
obvavs bound to a precedent, hut to apply his well proved by the ancient and continual fornix
medicine according to the quality of the di>- of indictment*, for all indictments couclude,
ea*e: and all coucludvd th;it it should be ue-
cesiry at that lime to confirm the kind's pre-
rogative with our opinions, although that there
were not any former precedent or authority in
law ; fur every piccedent ought to have a c >in-
mencement.
To which I nnswcicd, that true it is that

every precedent hath a commencement; but
when authority and precedent is wanting, there
is need of gie it consideration, before lb it ;inv
thing of novelty sh til be established, and to
provide that this be i.ot ugiin^t the law of I he
land: fur I said, thtt the ki.ig cannot change
any part of the couiiuou la:v, nor create any
wtleuce by his proclamation, which was not an
OtVcnce before, without parliament. But at
this time I only desired to have a time of con-
sideration and conference with my brothers, for
4 deliberandum c<t d;u, qut,d sialueudum c>l
' suncl ;* to which the sohciujr &:.id, that diver*
icateucts wercKueu in liu- Star-clumber upon
the proclamation against building ; and thai 1
myself had given se.itence in di\e»>rnses for the
s>tid prochimntion : to which 1 answered, that
precedents were to be -cell, and consideration
t>i he Had <>i this upon conference with my hre-
t'lren, for thai * melius est recuriere, quuin
' male cunerc ;' and that indictments c include,
'contra lezc* el statiila,* but 1 never heard
an indictment l > couclude, ' contra rcgiam
proclamation cm.' At lasi my motion was
•Honed, and thu lord.-* appointed the U\o chief
justices, chief baron, and baron A 1th am to
Lk\e consideration of if.

Note', the kin;; bv his procl.uuation, or
Other ways, cannot < iianje any pait of the
counnun Jaw, or .st itute law, or the cus-
tom* of the realm, 11 11. 1, 37. I'ortc»t uu De
Itadibus Anghuv U;inn, cap. y, 18 Ed. -1, US,

* contra lejcm ct consuetudiuciu Anulia1, or
4 contra hues et staluta, &c." Hut never was
seen any indictment to conclude ' coulra rcgiam

* prochunationeiu.'
So in all cases the king out of his providence,

and to prevent dangeis, which it will be too
late to prevent afterwards, he may prohib.t
them beiore, which will aggravate tiieoiVuue
if it be afterwards committed : and as it is a
grand prerogative of the kir.»; to make procla-
mation, for no subj.-ct can make it without au-
thority fro.o tlu knn:, or 1-iwful cirtom, ii]iou
pain of tine ami imprisonment, as it is held in
the i> I II. li, Procl.'l). Uut we do fmd divers
prece'dentn of proclamations which are utterly
against law ami reason, and for tint void ; for
1 qua: couii.i rationnn juris introducta sunt,
' nou debeut train in consequent iani/

Aii :'.ct was umde, by which foreigners wero
licensed to mere hand i/.c within London ; II. 4,
bv proclamation prohibited the i:\ecutiuii of it;
aiid that it ^lould be in suspcuce * usque ad
' p-ro\imuni parliaim ut', which was against law.
Vide d.us. (lis. ;i il. 1. reclamation in Lon-
dou. Jhit «» 11. -I, an act of parliament was
made, that all the Irish people should depart
the realm, and go into Ireland befoie the least
of the N«li'.,,v of ;!i^ bie«sed Lady, upo* p;ii:i
of deatii, wbii a w»: absolutely in tcnonm, vaA
was titteily u-:ain-r the l»vff.

IIc>lii"ibSiC.l 7 "i. anno Domini 1310, C>t II.
a, the whore- houses, called the stcw«, weie biip-
pre -ed by pNicl.imatioii and sound of inuii-

pel, i^;c.

In the fame term it was resolved by the t-.\o
el'ae. "justht =t « biff bar. in, and bar ni Altham,
upon coiueience betwi\l the lords of ihe piiw
coiiticil Hiid them, tint the kin* by his pu;l!-
iiiaiioii c::::iot crcaU any o&Vnce which v. as

7*7]

STATE TRIALS, 10 James I. 1612.— Tie Cases qf Legatt

[793

not ail offence before, for then he may alter the
law of the land by his proclamation in a high
|H>int ; tor if he may create an offence where
none is, upon that ensues fine and imprison-
ment : also the law of England is divided into
three parts, common law, statute law, and cus-
tom ; but t licking's proclamation is none of them :
also * malum aut est malum in se, auc prohibi-
tum/ that which is n gainst common law is * ma-
* lum in se, malum prohibitum/ is such an offence
ns is prohibited by act of parliament, and not
by proclamation. Also it was resolved, that

the king hath no prerogative, but (nut which
tlie law of the land allows him.

.But the king for prevention of offences may
by proclamation admonish his subjects that
they keep the laws, and tio not offend them ;
upon punishment to be inflicted by the law, &c.
Lastly, if the o fie nee be not punishable in
the star-chamber, the prohibition of it by pro-
clamation cannot make it punishable there:
and after this resolution, no proclamation im*
posing fine and imprisonment, was afterward*
made, &c. But see Itf Coke's Reports 20.

90. The Cases of Bartholomew Legatt and Edward Wightman,
for Heresy: 10 Jac. I. a.d. 1612. [Fuller's Church HisU
B. JO. $4.*j

A true Relation of the Commission and War-
rants lor the Condemnation and Burning
of Bartholomew Legatt and Edward Wight-
man ; the former at West Smiddield, the
latter at Litchfield.

BUT leaving the outlandish, let us come to
our English Vorstins (though of far le^s learn-
ing, of more obstinacy, and dangerous opinions)
I mean that Ariun, who this year sQllercd in
Smithtield : his name Bartholomew Legate, na-
tive county Essex, person comely, complexion
black, age about 40 yeais : of a bold spirit, con-
fident carriage, fluent tongue, excellently skill-
ed in tue Scripture'.; and well had it been for
him, if he had known them less, or understood
them belter ; whose ignorance abused the word
of God, therewith to oppose God the word.
His conversation (tor ought I can learn to the
contrary) very unhlameable ; and the poison of
heretical doctrine is never more dangerous,
than when served up in clean cups, and washed
dishes. — King James caused this Legate often
to be brought to him, and seriously dealt with
him to endeavour his conversion. One time
the king had a design to surprize him into a
Confession of Christ's Deity, as his majesty after-
wards declared to a right reverend prelate, by
asking him, Whether or no he did not daily

}>ray to Jesus Christ ? Which, had he acknow-
edged, the king would infallibly have inferred,
that Legate tacitly consented to Christ's divi-
nity as a searcher of the hearts. But herein
his majesty failed of his expectation, Legate
returning, That indeed he had prayed to Christ
in the days of his ignorance, but not for these
last seven year*. Hereupon the king in choler
spurned at him with his foot ; * away base fellow*
(said he) it shall neier be said, that one stnyeth
in my presence, that hath never prayed to our
Saviour for seven vears together.' — Often was
he convi -nted before the bishwps in the consis-
tory of St. Paul's, where he persisted obstinate
in his opinions, flatly denying the authority

* Very ddigent efforts were made, but un-
successfully, to discover any records of the
Trials of tlmav two persons*.

of that court. And no wonder that he slighted
the power of earthly bishops, denying the divi-
nity of hiin. who is ' the shepherd and bishop of
our souls/ 1 Pet. h. 25. The disputation against
him, was principally managed by John King,
bishop of Loudon, wlio gravelled and utterly
confuted him with that place of Scriptore,
John xvii. 5. ' And now O Father, glorify thou
' me with thine ownself, with the glory which I
' had with thee before the world was/ This
lc\t, I sny, was so seasonably allcHged, so
plainly expounded, so pathetically enforced by
the eloquence, and gravity of thai bishop (qua-
lities fi herein he excelled} that it gave mar-
vellous satisfaction to a multitude of people
there present, that it is conceived, it happily
unproselited some inclinable to his opinions ;
though Legate himself remained pertinacious,
both against the impressions of arguments, and
scripture, daily multiplying hrs enormous opi-
nions. It is the liappiness nature indulgeth to
monsters that they are all barren ; nhereas on
the contrary, monstrous positions are most pro*
creative of the like, or worse than themselves.

Before we set down his pestilent opinions ;
may writer and reader fence themselves with

firayer to God, against the infection thereof;
est otherwise, touching such pitch (though but
with the bare mention) defile us, casually tempt-
ing a temptation in us, and awaking some cor-
ruption which otherwise would sleep silently in
our souls. And, if notwithstanding this "our
caution, any shall reap an accidental evil to
themselves, by reading his damnable opinions,
my pen is no more accessary to their harm,
than that apothecary is guilty of murder, if
others, out of a liquorish curiosity, kill them-
selves with that poison, which he kept in his
shop for sovereign use to make antidotes there-
of. His damnable Tenets were as followeth;
1. That the Nicene creed, and Athanasius
creed, contain not a profession of the true
Christian faith. i2. That Christ is not God of
God begotten, not made ; but begotten, and
made. 3. That there are no persons in the
Godhead. 4. That Christ was not God from
everlasting, hut began to be God, when betook
flesh of the Virgin Mary. 5. That the world

f»] STATE TRIALS, 1 0 Jambs t. 101 2 and Jfightman, for Mercy. [130

wm not made by Christ. 6. That the Apos-
tles teach, Christ to be man only. 7. That
there is no generation in God, but of crea-
tures. 8. That ibis assertion, God to be made
nan, is contrary to the rule of faith, and mon-
strous blasphemy. 9. That ( Christ was not be-
sore the fulness of time, except by promise. 10.
That Christ was not God, otherwise than an
anointed God. 11. That Christ was not in
the form of God equal with God, that i>, in
substance of God, but in righteousness, and
riving salvation. VI. That Christ by his God-
head wrought no miracle. 13. That Christ is
not lo be prayed unto. — For maintaining these
opinions, Legate hud long been in prison in
Newgate, yet with liberty allowed him to go
abroad ; not contented wherewith he openly
boasted, and often threatened to sue the court,
which committed him, for reparations for false
imprisonment; so that his own indiscretion in
this kind, hastened his execution. For here-
upon bishop King finally couvented him in the
consistory ofSt.Pnul's, and that worthy prelate,
foreseeing that hi* proceedings herein would
meet with many listening ears, prying eyes, and
prating tongues, chose many reverend bishops,
able divines, and learned lawyers to assist him.
So that the consistory, so replenished for the
time being, seemed nut so much a large court,
as a little convocation. Bv the counsel and
consent of these, by his definitive sentence, he
pronounced, decreed and declared the foresaid
Bartholomew Legate an obdurate, contumaci-
ous, and incorrigible heretic. And by an in-
strument called a Significant, certified the
same into the chancery, delivering him up unto
the secular power, the church-keys in such
cases craving the help of the civil sword.
Whereupon, king James, with his letters, dated
March 11, under the privy-seal, gave order to
the broad -seal to direct the writ l)c IJccretiro
romburendo, to the sheriffs of London, for the
burning of the foresaid Legate. * Now as the
bi»hop herein surrendered Legate to the secu-
lar power, my Ecclesiastical History in like
manner resigns hiin to the Civil Historian, to-
gether with all the doubts, difficulties, ant) legal
scruples attending on, or resulting from his con-
demnation. Let the learned in the law consider
on what statute the writ for his hunting was
grounded, whether on those old statutes enacted
in the reigns of Richard the i!nd, and Henry
4th; or on the branch of some other new sta-

* Some learning concerning Hereby and the
writ De Haeretico comhurendo, is to be found
m 5 Co. Rep. Cutidrey's rose, VI, Co. Hep. 20,
56, 59, 92 (Legatt's case) Harrington's Ohs. on
Seat 2 II. 4. U II. .r>. See also in 1 Hale's P.
C. c. 30. and the notes of the editors ; (though
note (u) in Wilson's edition is absurd ;) a
learned history of the law of heresy. Lord
Hale for the rases of Legatt and Wightman re-
fers lo the Chronicle of sir Richard Baker,
who however gives no particulars. Collier like-
wise is very brief. Sec olso a good Summary in
4 Black. Comm. c 4. ft. 2.

tute to that effect. Let them satisfy us, how
far those laws were repealed in Imo Elizabeth,
and how far they still stand in force ; as though
! not to [pretended] Lollard ism, yet to blusphemy.
Ix-t them examine the judgment of the learned
Fitz-Herbert, whether sound in his assertion,
That heretics, before the writ of their burning
be issued out against them, must first be con-
victed of heresy before a provincial convoca-
tion ; whilst others affirm, That they being cou-»
vieted before their ordinary, suthceth, provided
it be for such opinions which convocations have
formerly condemned for heretical — .To Smith-
field lie was brought to be burned. See here,
it is ncitlier the pain nor the place, but only the
cause makes a Martyr. In this very Smithficld
how many Saints in the Marian days, suffered
fur the testimony of Jesus Christ ? Whereas
now one therein diet!) in his own blood for de-
nying him. Vast was the contlux of people
about him. Never did a scare-fire at midnight
summon more hands to quench it, than this at
noon-day did eyes to behold it. At last, re-
fusing all mercy, he was hurnrd to ashes. •
And so we leave him, the first that for a long
time suffered death in that manner : and, oh
that he might be the last to deserve it ! In the
next month Edward Wightmuu of Burton upon
Trent, convicted before Richard Neile bisliop
of Coventry and Litchfield, was burned at
Litchfield for far worse opinions (if worse might
be) than Legate maintained. Mary Magdalen
indeed was once possessed with seven devils,
but ten several heresies were laid to Wight-
man's charge ; namely, those of Ebion, Cerin-
thus, Valentinian, Amu?, Macedonius, Simon

* Hume tells us (appendix to the reign of Jas.
1st.) " Stowc says that these Arians were of-
fered their pardon at the stake if they would
merit it by a recantation/' The following are
the words of Stow : '* Wednesday the 18th of
March, I<egat, an obstinate Arian heretique, was
bunied in Smithficld : lie refused all favour and
contemned ail ecclesiastical government, and
upon Faster Eve, the 11th of April following,
Edward Wightman, another obstinate miscreant
heretique, was bunied at Litchfield, having like-
wise more favour offered him than he had
grace to accept." Stow's Annate?, 1002. He
has not one syllable of pardon, or the $tal;et or
recantation. Thus it is, as bisliop Butler has
observed in his excellent Sermon on the govern-
ment of the tongue, that " Some persons, when
they have heard the least imperfect bint of an
affair, will, out of tlieir own head, add the cir-
cumstances of time and place nnd other mat-
ters to make out their story.'* Mrs. Macau by
says that " one of these heretics was lunatic
at the time of his condemnation :" for which
assertion I cannot find the slightest trace or
pretence of authority, unless it be what Hume
farther savs, that " a madman who called him-
'* self the Holy Ghost," probably he had in his
mind Wightman, u was without any indulgence
for his frenzy condemned to the same punish-
mem/'

I

.v»

STAtK TRIALS, 10 Jame* I. 1612.— The Case* qf Legatt

[732

^ ^ ^ \»*-«%. Mrtnii.hseua, Flioiinuf, and of
u k .:«4iMi»iv l^ord! What are «c when
\ w. .,n^/xu^ Did ever man maintain one
v* \ *\ t mid hul fine heresy ? Chains ul" dark-
i »•**, wv ncr, have their Jinks and errors are
», implicated together. God may ftccui well-
■lU'Axcd with tin* seasonal >lc seventy. For the
tire thus kindled, quickly wrnt out fur want of
Jewel, i mean, there was none ever after that
opeoK a»owed these heretical doctrines. Only
a >paa*h Anao, who, condemned to die, was
n»t withstanding Miffered to linger out his life
in Newgate, where he ended the same, In-
deed, tufh burning of heretics much startled
r.in-.m^n people, pitying all in puiu, and prone
to t^^erx justice it>elf witli cruelty, because
of ;.'k boic.u and hideousne-s of the punish-
wu*r»:. Ar.:i the purblind eyes of vulgar judg-
ment* NV^oi »*n.v on what wns next to them.
.it* s..rse../s£ iSmM*) which they beheld with
r«*>.T.ixw^"«. *i*c miuding the demerit of the
^ii :;. * \>. «;.tr?erved the same. Besides, such
•*v*i ^ «.. a. v to distinguish betwixt constancy
*->c ,^w«,7 were ready to entertain good
*Kv4'»> <irn of the opinions of those heretics,
• : .* >*j ed tlieui so manfully with their blood.
\* j**v vrv Lui£ James politicly preferred, that
fcc*-vt e> hcreaiter, though condemned, should
*^x<.ui>, and privately waste themselves away
w the prtatn, rather than to grace them and
autUM* others with the solemnity of a public
rxrvutiou, which in popular judgmeats usurped
the honour of a persecution.

A X*r ration of the Burning of Bartholomew

Legatt.
J tunes i\. James by the Grace of God, King
of Filmland, Scotland, France ami Ireland; IX.-
U-uder ot' the Fuith, &c. To our right trusty,
and right well beloved Counsellor, Thomas,
lord Fllvsmere, our Chancellor of Knglaiid,
i Reeling. Whereas the reverend father in God
John bihhop of London having judicially pro-
ceeded in a cause of hercsie ugainst Bartho-
lomew Legatt, of the city of London, in the
dioc«»* of the said bishop of London, concern-
ing duett wicked errors, heiesies, and blas-
tkhemous opinions, holden, umnned and pub-
ohed by the said Bartholomew Legatt, and
chu-ily in thes-e thirteen blasphemous posi-
tions following, viz. ' That the creed called
the Nicene Creed and Athanasius's creed, con-
tam not a profession of the true Christian faith,
or that he will not profess his faith according
to the name creeds. 2. That Christ is not God
of God begotten, not made, hut begotten and
made. 3. That there are no person* in the
iittdhead. 4. That Christ was not God from
eveilastUng, but began to be God, when he took
lW»h of the Virgin Mary. 5. That the world
\m\% not made by Christ. 6. That the Apostles
ti-rtth Christ to be Man only. 7. Thut there
la uu generation in God, but of creatures. 8.
Tlul I hi* assertion, God to be made Mau, is
contrary 1" the rule of faith, and monstrous
Un>)dumv. 9. That Christ was not before the
lulnow ul' time, except by promise. 10. That

Christ wns not God otherwise than anointed
God. 11. That Christ was not in the form of
God equal with God, that is, in substance oi
God, but in righteousness and giving salvation.
12. That Christ by his Godhead wrought no
miracle, Vi That' Christ is not to be prayed
unto. — Wherein he the said Bartholomew Ligut
hath before the said reverend father, maintain-
ed his said most dangerous and bla>phemoui
opinions, as appcarcili by urtny of his confes-
sions publickly made ami acknowledged. For
which Ins damnable and heretical opinion*, he
is by dirlhiitivc sentence, by the said reverend
father, John, bishop of London, with the advice
and consent of other reverend bishops, learned
dhincs, and others learned in the laws, assisting
him in judgment, justly adjudged, pronounced,
and declared to be an obstinate and incor-
rigible heretic, and is left hv them under the
sentence ot the great excommunication, and
therefore, as a corrupt member, to be cut oil from
the Church of Christ, and society of the faithful,
and is to be, by our secular power and authority,
usan heretick, punished; ashy theSinnilicavitot
the said reverend father in God, the said bishop
of Loudon, bearing date at Ijondon the third oi
March, in the year of our Lord 1611, in the
ninth year of oar icign, and remaining in our
court of Chancery, nio:c at large uppcarctlL
And altii'Hi'Ji the said Bartholomew Legatt
hath, since the said Sentence pronounced against
him, beeu often very charitably moved and ex-
horted, as well by the said bishop, as by many
grave and learned divine?, to di-swade, revoke
and icmove him from the said blasphemous
and heietical opinion**, yet he arrogantly and
willfully persisted and contiuucih in the same.
We therefore, according to oifr rigal futictiou
and ollice, minding the execution of justice in
this behalf, and to give example to others, least
they should attempt the like hereafter, have
determined, by the assent of our council, tc
will and require, and do hereby authorize and
require you, our said chancellor, immediately,
upon the receipt heieof, to award and make
out, under our great seal of Kngland, our writ
of execution according to the tenor in these
presents ensuing. And these Presents shall be
your sufficient warrant and discharge for the
same.

Kex vicecomitibus London, snlutcm. Cum
reverendus in On i>to pater, Johannes, London
cpiscopus, nobis biuniiicavit, quod, cum ipse
in quodum Inereticw prnvi'atis uegotio contr£
quel id am Bartholomeum Legatt, suhdituui nos-
trum, civitatis Loudon, dicti London episcopi
dioccfrs. et jurisdiction^, rile rt K^itime pro-
cedens, per ucta inactitata, diducta, proposita,
et per coufes^ionc.i ip^ias Bartholouiei Legatt,
coram p rata to cpi^copo judicialiter fact:is et
reco»»niias, comperit et in\enit privftlutn Bar-
tholumeum, Legatt quamplurimos uephandos
errorcs, fulsas opiniDiies, h&rc«cs, et blaspheuiiai
cxecranda>, et sci-lerata dogmata catholico: el
orthodoxa? lidei et religioui et sacrosancto Dei
vcrbo exoresse coutruria et rcpuguuntiu, sci-
enter, inu\icioM(; aniiuoque pertinaci, obd*ira^>,

733] STATE TRIALS, 10 James I. MM.— and WtgfUman, for Rcrty. [734

planeque incorrigibili, credere, tenere, nilirmare, | errors, false opinions, heresies, nnd coned blos-
et publicare ; idem reverendus pater, London
episcopus, cum consilio et consensu turn reve-
rendorum episcoporum et aliorum theologorum
quaui juris etiam peritorum in judicio assiden.
et assisten., euudein Burtholomcum Legatt,
per sen tent iani suam dimnitivatn, obdurntum,
contumacem, et incorrigibilcm ha?reticum pro-
nunciavit, decrevit, et declnravit, e&que occa-
sion?, tanquam protervum haereticum et mem-
bruui putridum ct contagiosa in, ab ecclesia
Christi et ndeiium communione rccisuiu ct
amputatum fore. Cum igitur sancia mater
ecclcsia non haheat quod ulterius iacere et e\-
equi valeat in hac parte, idem reverendus
pater prsfatum Bartholomeum Legatt, ut blas-

t)bemum hxreticum brachio nostro seculari re-
iquit condigna animadver»ionc plectend\ prout
per litems patentes pra?fati reverendi in Christi
patris, London episcopi, in hue parte supcrinde
context' nobis in chanccllar' no<>tram certificat*
est. Nos igitur ut zeUtor justitia* et fidei
catholics defensor, volentesquc ecclesiam sanc-
tam ac jura et libcrtateseju^dem et fidem cn-
tholicain manutenere et defendtre, ac hujus-
modi ha?reses et errores unique, quantum in
nobis est, eradicare et extirpare, ac luereticos
sic coniictos animadversione condigna puniri ;
atteudemesq, hujusmodi Invretii'iiui in forma
pried' couvictuin et damnatum juxta leges et
cousuetudines regni nostri Angliai in line parte
coiiMiet' ignis incendio comburi debere : Yobis
praecipimusquod dictum Bart holom cum Legatt
in custodia vestra existen'apud West-Smithtield
ill loco publico et aperto ex causa pra?mi»n
coram populo publice ieni committi, ac ipsum
Bartholomeum Legatt in eodem igne re iliter
comburi fac' in hujusmodi criminis detessta-
tionem, aliorumque Ch;i>tianorum excmplum
maui tectum, ut in simile crimen labantur. Jit
hoc sub periculo incumbenti nuliatenus omil-
tati's. Tes»te,\*c. Henry Hibmitk.

• This container!) a Warrant to be granted by

Jrour majesty unto tlie lord chancellor ol" Enir-
and for the awarding of a writ under the great
teal of England to the sheriff of the city of Lon-
don, fur the burning of Bartholomew I,egatt,
who is convicted of divers horrible heiesies
before the bishop of Loudon, and by his sen-
tence left to the secular power, as is by tbe said
bishop certified to your majesty into your
tiighness's court of Chancery. And is done by
force of your majesty's commandment to me
^iven under your highness's si«n-manual.

Henry Hibfrte.
The King to theSherins of London, greeting.
tVhercas the revcreud father in Christ, Jo!in,
bishop of London, hath sjjrnitied unto us, that,
when he in a certain busiue?* of heretical pra-
Vity against one Bartholomew J^egatt, our suIh
ject, of the city of London, of the suid bishop
of I/ondon*sdiocess and jurisdiction, rightly and
lawfully proceeding, by acts enacted, drawn, pro-
posed, aud by the confessions of the said Bur-
iholoinew Legatt, before the said bishop judi-
cially made and acknowledged, hath found the
laid Bartholomew Legatt very many wicked

phemies, and impious doctrines, expressly con-
trary and repugnant to the Catholick faith and
religion, and the holy word of God, knowingly
and maliciously, and with a pertinacious and
obdurate plainly incorrigible mind, to believe^
hold, affirm, and publish; the same reverend
father, tbe bishop of Loudon, with tbe advice
aud consent, as well of (he reverend bishops
and other divines, as also of men learned- ia
the law, in judgment sitting and assisting; the
same Btutholomew Legatt by his definitive sen-
tence hath pronounced, decreed, and declared
to be an obdurate, contumacious and incorrigi-
ble heretick,. and upon that occasion as a stub-
born heretick, and rotten contagious member
to be cut oil' from the church of Christ, and the
communion of the faithful; and whereas the
holy mother church hath not power to do and
execute any thing further in this matter, the
same reverend father hath left the aforesaid
Bartholomew Legatt as a blasphemous heretick
to our secular power, to be punished with con-
dign punishment; as by the letters patents of
the said reverend father in Christ, the bishop of
ly>ndon, in this behalf, above made, is certified
unto us in our chancery. We therefore, as u
zealous promoter of justice, and a defender of
the Catholic faith, and being willing to main-
tain aud defend tbe holy church, nnd rights and
liberties of the same, and the Catholic faith ;
an! such heresies and errors every where, what
in us lieth, to root out and extirpate, and to
punish with condign punishment hercticks so
convicted ; and considering that such an here-
tic, in form aforesaid convicted and condemned,
ought according to the laws and customs of this
our kingdom of Faigland in this part accustomed,
to be burned with fire; \\ e do command you,
tint the said Bartholomew Legatt, being in,
your custody, \\>a do commit pubhclv to the
tire, bt fore i lie people, in n public and opeu
place in West-Smithlield, for the cause afore-
said, and that yon cause the said Bartholomew
Letgatt to be really burned in the same lire, in
detestation of the said crime, for the manifest
example of other Christians, lest they slide int«»
the same fault : And this you are in r.o uisA
to omit, under the peril that shall follow t hereon.
Witness, ecc. Heniiy Hibikte.

A Narration of the Burning of Edicani

\Yightman.
James R. — James, by the Grace of God,
King of FiUelnnd, Scotland; France and Ireland,
Defender of the Faith, &c. To our right iru>ty
and right well- beloved Counsellor, Thomas,
lord Fliesmere, our chancellor of England,
Greeting. Whereas the reverend father in
God, Richard, bishop of Coventry and Lichfield,
having judicially proceeded in the examination,
hearing, and determining, of n cause of heresy
against Edward Wightman, of the parish of
Burton upon Trent, in the diocess of Coventry
and Lichfield, concerning tho wicked heresies
of the Ebionites, Cerintbiaus, Vaientinians.
Ariam, Macedonians! of Simon Magus, of

735] STATE TRIALS, 10 James I. 1612— The Cases of Lcgatt [73fl

Mjiick, Mnnichees of Photiuus, and Anaba|>- < also before our commissioners, far causes eccle-
ti*t», and of niht-r hviciiiu], execrable, and un- ! siasticul wichin our realm of England, ma in-
heard -of, opinions, I »y the instinct of Satan, by • tuiucd his said mobt |*rilous and dangerous
him cvcopitatcd am) hidden, iiz. opinions, as nppearc-th by many of bis coiifes-

1. Th.il iIhto is not iiu: tiiuity of persons, sions, as also by a book written and subscribed
the Father, the Son, and the Holy Guost, in j by linn, ajid uiven to us. For I he which his
the unity of the Deity. 2. That Jc-mi> Christ is ! damnable an<I heretical opinions, lie is, by de-
jmt the true lutuid Son of Cud, perfect (iod, j linitive fccntenee, detlared by the said rev. fa-
and ot the same substance, eternity and niu- ; ther, the bishop of Covcntiy and Li ch tit Id, with
jestv with the Father m respect of his Godi.eud. j the advice and consent of learned divines, and
i>. Tliixt Jesu* Chri«t is only man mid u nicer ! other persons learned in the law* assisting him
creature, and not both God and man in one , in judgmeuf, justly adjudged, pronounced and
person. -I. Thtt Christ, uur Saviour, t*ik j dcnared to be an obstinate ami incorrigible he-

: of the Virt/n relic, and is left by them under the sentence ot

not human ilesh of the substance
Mary his Motlier; and that, thai Promise,
* The Seed of the Woman shall break the ser-
pent's head/ was not fulfilled in Christ, j.
That the person of the Holy GhoM is not Oud
coequal, cue.it rind, and coestemtial with the
Father and tli£ Son. 0. That the three creeds,
Tlie Apostle- (.'reed, the Niccne (..'reed, and
AlhanatiuVa Creed, are the heresies of rite Viico-
laitaues. 7. That he tlie said Edward Wiuht-
rnan is that, prophet spoken of in the cijueenth
of Deuteronomy in thi-sMtords, * I "ill raise
ihcin up a propii. l,' &i\ And tha% that place
of hak.h, * I alone, ha\t- uode-n the wine-
press ;* and that place, * Whose fan is in his
hand,' are proper and personal to him, the said

the great excommunication, and therefore, as
cjrmpt men, her, to be cut ot)* from the rest ot
ti.e tlor k of Chris*, lest he should iufect others

firofrssin^ the true Christian faith : aiul is to
ie by r>;ir m cular power and authority, as an
heretic, punched : as by the Si^nmcavit of the
laid Tv\ . f.ither in God, the hUhop of Coventry
and Lichrield, bearing date at Lichfield, the l-lili
of December, in the 9th year of our reign, and
remaining in our court of Chancery, more at
large nppiareth. And, although tlie said Ed-
ward \V i^htman hath, since the* said sentence
pronounced against him, been often very cha-
litably moved and exhorted, as well by the said
bishop, as by many other godly, prave and
Edward Wi^h'inou. fi. sAnd that he the said learned divines, to dissuade, revoke, and remove
AVi^himau )* that person of the Holy Ghost him from the >ad blasphemous, heretical, and
spokeuof in the Scriptures; and t ho Comforter ! anabaptisii.al opinions; yet he arrogantly and
tpokeu of in the loth of .St. John's Gos|a-l. [K wilfully pcrsisteth nnd continued! in tie same.
And that tii.^e nunK of our Saviu'ir Christ of j We thestf ire, according; to our reenl function
die Sin of B'a-phcmy against the Holy Glmst, i and otfue, minding the execution of justice in
a.e meatil of In- person. 10. And that, that I this behalf, and to uiie example to others, lest
plarv, the fourth of .Maluhy, of f-Ji-.ts to c»me, | they s!ru)ulii attempt the like hereafter, have de»
i- likewise inCiii»r of his person. 11. Tin; ti.e ' termined, by liie assent of our council, to will
<mi:iI fioth sleep i.i the «dccp of the ih&t death, , and require, and do hereby authorise and re-
:<s ucli as the body, ami is mortal as to::diin^ I quite \o:.i, oi*r said chancellor, immediately
i!io "hep of tlie m>J .h'atli. a*, the b-»dy is : , upon tl.»» receipt hereof, to award and make
And that tnc soul of i.,ir SavMur Je?us l hri^t | out under our urea t *cal of England, our writ of
did >h.*cp in that >!eop (.1* death as \M'ii lis his execution aceordim; to the. tem>ur in these pre-
1mi.1v. 12. That ihe >ouls of tlie e lee: >.,iius | s*Mits cn>uiaj:. And this** |>rcseuts >hall be
tie parted, are ne.t m-.riiibers possessed nf tiie ; your sir/nei« nt uairant and discharge tor tlie
triumphant Chweti i'.i Ib-aieii. !'•. Ti.nt the j same.

baptizing of infants is an abjininaLle cus- ! Hvk vie' « ivitatis no-tn? Lirh. ^ahitem. cum
li^m. IV. That the.e fi'ijjht not to be in the I rewrctidu* in Chri?to pater, J('ch:irdus, pruvi-
rhtirri: thf uso of iiu» J.iim'> Supper t • )>a ce- : den ia diiir-a Co\entr'it L'ch' cpiscopus, nobis
L bra led in the EUnseiits of IJrenl :>inl Wine: St«;r.ilica\i rirtrpiod ipsf contnieiadvcisusquen-
and the u^i- of ltap:;.->ui to be eiilebratel in the dam Kduardmn Wijhtui.ui, parochta? dc Imr-
>'. lenient of Water; as they are im.v practiced . ton super Tnnt. Coit-n:r' et Lien* dioces., de
in the Cnurch fif England : Hut that the iw of, K super uephaudi.- hc.'i'rii.us Ehionis, Cciinthi,
Jkiptism i? to lie u(liniiii»lnd in water, nsdy tu Vah miuiaiii, Arii, AJnce^onii. >imoiiis Magi,
cotniTtiofsiiffieient ape of uinifr»?!iii:liiii:, nn- ■ iM.inrti<, iManecl-aforuMi, I'lionm. ft Auabap-
%er:ed from intidility to tin- laiih. i.'j. 1 i«?it , ti.-iar-un, iihojtiiiiq; hen niurcttt rum , et insupcr
(.•' -d ha:h ordained and sont l.i'u. tlu> sal I 1..1- dc aiiis t \icrandis opiuioiiibn.s ;;.i!me:u Satanm
ward Wijhtman, to perform lii< pj«rt in the ( vrocitntu ci antebac uniuUitis, ju\t;& canonnm
*if.:k nftli** Salvation of (be wmld, to dfjitvr it <i*,-le-ii*tic.irinii. lejumque et con-^iictudmuin
1'V hi" reicliinj:. or a.lineniion. lr«»iii the hereby huius renni n-i.-iri Anci" iMiienti.mi. judicialit*
of the Nirolattunt's* a»Cini-t «;i> ordained pr«»rtfden*. pra*dic;n> Edwardus Wiibtinan, co-
auil «ent t«» vivt- tin. «os-iJ. and by his diuth to ram punfatn rev. patre, ac aliss tl.culogis et ju-
dehver it from sin. mid to uccncile M To (Jul. ri->p*ni:s «.)bi in judu i-> assist en tibu»,comparen«,
16. And that Chn*»i.ui ty is not wl^.ilv pro- | praii'cta niphanda crimina, liarese*, ac alia
and pr«*nritt*d in tin Chinch of England, ' detestanda Ida^phemia et crrores, coutumacittf

but only in part.- W hi rein he the said Edward it ex qua Jam puitinacia, scienter, maliciose,
\Yi|hin»au, hath bwfuie ihe said rev. father, as j an i moo; ^bdura^o, publicavity Ucfviidahot, et

I

W7] STATE TRIALS, 10 James I. 1612 — and Wightman, far Heresy. [738

dis<eminnbat, per ten tent mm definitivam ejus-
dem rev. patrts, cum consensu theologorum et
jerisperitoram prsedictornm, juste, legitime, et
canontce contra eundem Edwardum Wightnian
in ea parte lataro, hereticus adjudicates et pro-
nuociatus existit; et ided, tanquam ovem nior-
btdam, e grege Domini, ne subditos nostras sua
coatagione inficiat, ejiciendum et elirainandum
fore decreverit : Cum igitur Sancta Mater Ec-
desia non hnbeat quod ulterius in hac parte
Jacere et exenui debeat, idem rev. pater eundem
Edwardum Wightman ut blasphemum et dam-
satum haereticum brachio nostro seculari reli-
jeit, condigna animadversione plectendum ;
prove per litems pateutes pnefati rev. patris,
episeopi CovemV et Licb', in hue parte super-
iade coufectas nobis iu caucellariam nosiram
ccrtificatum eat. Nos igitur, ut zelntor j usticias
et fidei catholics defensor ; volentesque eccle-
tiam sanctam, ac jura et libertates ejusdem, et
idem catholicam, manutenere et defendere, ac
bojutmodi haereses et errores ubique (quantum
in nobis est) eradicare et extirpare,ac ha*reticos
sic convictos animadversione condigna puniri,
attndentesq; hujusmodi hsreticum, in fornut
t pnedicta convict um et damnatum, juxta leges
et consaetudinem regni nohtri Anglis in hac
parte consuetem ignis incendio comburi debere;
ubi prsscipimus quod diet. Edwardum Wight-
man, in custodia tua existentem, in aliquo loco
publico et aperto infra civitatem praedictam, ex
rausa premissA, coram populo publicc igni com-
mit* i, et ipsum Edwardum Wightman in eodem
igiie realiter comburi facias, in hujusmodo cri-
winisdetestationem, aliorumque Christianorum
ciemplum manifestum, ne in simile crimen la-
bantur. Et hoc sub periculu incumbent! nulla-
tenus omittas. Teste, &c. Henry Hibirte.

This containeth a Warrant to be granted by
your majesty unto the lord chancellor of Eng-
land, for the awarding of a writ under the great
seal of England, to the sheriff of the city of
Lichfield, for the burning of Edward Wightman,
who is convicted of divers horrible heresies be-
fore tbe bishop of Coventry and Lichfield, and
by his sentence left to the secular power, as is
by ilie said bishop certified to your majesty, into
your highness's court of Chancery.

And is done by force of your majesties com-
mandment to me given under your highness'*
sign manual. Henry Hiuirte.

Tbe King to the Sheriff of our city of Lich-
field, Greeting. Wltereas the rev. father iu
Christ, Richard* by Divine Providence of Co-
ventry and Lichfield, Bishop, huth signified unto
as that he judicially proceeding, uccording to
Che exigence of the ecclesiastical canons, and
of the laws and customs of this our kingdom of
England, against one Edward Wightman of the
pan»h of Burton upon Trent, in the diocese of
Coventry and Lichfield, of and opon the wicked
beresiesof Ebioii,Ccrinthus, Valentinian, Anns,
Macedomut, Simon Magus, of Manes, the Ma-
fiichees, Photiuus, and of the Anabaptists, and
Other arch heretics; and moreover of other
tuned opinions by the instinct of Satan excogi-
tated and heretofore unheard of, the aforesaid
Vol.. ii.

Edward Wightman appearing before the afore-
said rev. father, and other divines, and persons
learned in the law, assisting him in judgment, the
aforesaid wicked crimes, heresies and other de-
testable blasphemies and errors stubbornly and
pertinaciously, knowingly, maliciously, and with
an hardened hearr, published, defended and dis-
persed ; by definitive sentence of the said rev.
father, with the consent of divines, and persons
learned in the law aforesaid, justly, lawfully
and canonically against the said Edward Wight-*
man in that part passed, stands adjudged and
pronounced an heretic, and therefore, as a dis-
eased sheep, out of the flock of the Lord, lest
our subjects he do infect by hi6 contagion, he
hath decreed to be cast out and cutoff. Arid
whereas the holy mother church hath not power
to do or execute any thing further in this mat-
ter, the same reverend rather, the same Edward,
Wightman as a blasphemous and condemned
heretic, hath left to our secular power to he pu-
nished with condign punishment ; us, by the
letters patents of the aforesaid reverend father
the bishop of Coventry and Lichfield in this
behalf thereupon made, is certified unto us into
our Chancery. We therefore, as a zealous pro-
moter of justice and a defender of tbe catholic
faith, and being willing the holy church, and the
rights and liberties of the same, and the catho-
lic faith, to maintain and defend, and such like
heresies and errors every where, so much as in
us lies, to root out and extirpate, and heretics
so convicted, to punish with condign punish-
ment ; and considering that such an heretic in
the aforesaid form convicted and condemned,
ought, according to the laws and customs of
this our kingdom of England in this belndf ac-
customed, to be burned with fire ; do command
thee that thou cause the said Edward Wight-
man, being in thy custody, to be committed to
the fire in some public and open place within
the city aforesaid, for the cause aforesaid, be-
fore the people, and the same Edward Wight-
man in the same fire cause reallv to be burned :
m detestation of the said crime, and for a ma-
nifest example to other Christians, that they
may not fall into the same crime. And this
you are in no wise to omit, under the peril thai
shall follow thereon. Witness, &c.

Expeditum apud Westmmiasterium, nono
die IMartii, 1611, Anno Regis Jucobi Angl' &c,
nono. Per Win dedans.

The following two Cases of Pardon being found

with the preceding Instruments are here

printed, as being somewhat curious.

The Pardon of' Theophilui Higgons.

James Hex ; Rex omnibus ad quos, &c. se-

lutcm. Cum nobis dat' est intelligi, quod The-

ophilus Higgons de London, clericus, in partes

transmariuas absque licencia nostra retain emi-

graverit, ihidemque duos annus et ditnidium,

vel eo circiter, commoratus, et cum Jestiitis et

Presbyter' conversatus, fuerit, atque in eodem

temporis spatio in seminarium Amjlictim apud

Doway et Sanct' Omer' aliquantisper perraep-

serir, et se ecclesisi Romans rccosciliaverit.

739] STATE TRIALS, 10 James I. 1012.-17* Cases tf Legatt and WiglUman. [740

Necnon quredam scandalosa et periculosa con* habuimus seu in futuruin habere poterimus,
tra statum hujusregni,no!>tri tain ecclesiasticuio ( aut hered.seu successor, nostri habere poterint
quam temporale, et verbis et scriptis protulerit, , in futur. sectumque pac. nostra qua: ad no*
et enunciuverit, atque etiam quusdam e subdi- . versus ipsuin Theophiluxn Higgons pertinet sea
tis nostris a. rcligioue in hoc regno nostro stabi- ] pertinere potent iu futur. et rirmam pacero, et
lit* seduce re ct avertero opcrum et vires in- i banc pardonation. nostram cideui Theophilo
tenderit : Posttu lumen, ptr sauctn et bona I Higgons inrie dainus et concedimus perprasen-
media, et prccipuc ex peniteutiu et instinct u \ tes. Aliquo statut. act. provisioue seu restrio
miscricordia* et gratia} diviine, pi a: diet am per- , tione in contrar. inde in aliquo non obstante. -

versitatem suam, ac falsa s et opprubriosas opi-
niones prxdictas, penitflsabnegavorit, scque re-
ligion! vera; et reformats, ct in hoc regno pro-
mulgate ct stabilita; cunformem exhibuerit:
Sciatis igitur, quod nos pictatc moli, de gratia
nostra speciali, ac ex ccrtas stiuitiaejt mero
inotu, nostris, ,pardonavimus,remi*imus, et re*
laxaiimus, acper pra?seutes, pro nobis heredi-
bus et successoribus nostris, pardonamus, re-
mi ttimus, et relaxainus, prod. Theophilo Hig-
gons, de London, c^erico, (seu quocunquc alio
nomine, cugnomine, sive addition? nominis vel
cognomiuis, officii art is, dignitatis loci vel lo-
c or urn, idem Theophilus Higgons censcatur,
vocetur, si\e nuncupctur, aut nuper censeba-
tur, vocabatur, sive xiulicupubuiur,) omncs ct
onmimodas oiTeusas de trunseundo in partes
transmarinas absque licencia noslrf , ibidemque
cpunnoiando, et cum Jcsuitis ct Pre.^byieris
comersando, ac in seminaris Anglico apud
Do way et £anct. Omcr. permanendu, atque
ccc!c»ia» Roman a; so lcconciliauilo, ac scanda-
loso uliqua con trii statu m regui luijus tain cc-
cioiasticuin quam temporale, et scfibendo ct
loquendo, atque aliquos e subditis nostris a re-
ligione hujusrcgni nostri avevtendo etseducen-
do ; Atque oinnes alias often sas dclicta, con-
tempt^, mnlefacta, ct trausgressionis qunscuii-
que, praemis*a, aut eorum aliquod, vel id i qua,
iu aliquo tangeutcs, vol coucernentes, perpra.-
dictum 'I hcophilum Higgons ante datum pr.i1-
scntium qiialitercuuquc com.ni;s?s si\e pirpe-
tratas atque etiaui omncs ct omnimodab otieii-
sas, proditioncs, feloni.is, et prcmunire nitioue
alicujus *ei aliqr.orum, iiicti, \tl factorum supe-
rins meucionatorum commi^as, pcrpetrutas
vel iuciiisas : Licet idem Ti. explains Iiigeoiis
de p:;tiiiLVLi> vel aliquo pnemi^orummdictulus,
impelitus convictu*, attinctus, adjudkwtus ut-
Uga'UN m*ii ciindtniii'-itiH cxistit itl nonexistit,
aut ir.de iuciictari, imperii i, convinci, fitting].

In cuius rci, &c. teste, ccc. Francis Bacov.

" It may please your excellent majesty.
This Bill containeth your majesty's gracious
pardon unto Theophilus Higgons, clerk, for
any oiTeuce or contempt in passing o\er the
seas, or reconciliation to the cnurch of Home,
or remaining in seminaries, or conversing with
Jesuits or priests, or other often ces of tlint na-
ture; for which he is penitent, and hath con--
verted and conformed himself to the religion
established iu this realm.

*' 1 have no warrant for the drawing of this
Bill, save thai sir Edward Hoby, to whom the
party hears special obligation, did by his letter
to me signify your majesty's pleasure to this
purpose : But, because the party's conversion
was so notoriuus, and so generally liked, I have
presumed to commend this Bill to your majes-
ty's signature. 1'bakcis Bacon."

Kxpeditum apud Westmona»terium, '24th
die Juiii, 1611, anno regis Jacohi nouo. Ter
Windcbank.

The Pardon of Sir Euituct. Hattc.

James II. ; Rex omnibus ad quos, cVc. salii-
teru. Sciatis, quod uos de gratia nostra speri-
ali, ac ex certa scientia et mero mr.tu nostris,
purdouavimus, remisimus, et n-hiuuimus, ac
per prirttntes, pro nobi*, hxredibus et suecc»-
yoribus nostris, pardonamus, remiitimus, ct re-
laxamus, Kustathio Harte, de villa dc South-
ampton, miliii, (seu quocunque alio nomine,
coguomine, seu additione nomiuis %el co«;uo-
minis, dignitatis, ollicii loci, vel locurum, idem
Kustathius Hurtc hciatur, censeatur, vocelur,
seu nuncupetur, aut nuper scicbatur, censea-
batur, vocalatur, sive uunenpahatur,) omnia
ct singula crimina et offensas adulteiii, foniica-
rTiuiiis, et inconiinentia;, quascunque, per i pi urn
Kustathiuin IL.rte cum aliquu muliere sive ali-
quibus mulieribus, ante datam pnesemium,
adjudicari, utlegari, >vu cuudcinnari, continent \ ubiLUiique, quaudocunque, quOii>odocunque, et
in futurum ; Nee: non omues ct umuimod. ' quali'ercunquc, facta commi»sa sive perpetra-
ut!fir:nij» si quaj in ipsuin Thfopl.ilumHig^ons, ! ta : Necnon oumiu et singula fectus, impeti-
occasionibus pra'cT <vu earuui aliqua, fuerint ' tiuues, actiones, hues, pjunas, an»erciaineiit«,
pi'.iuul^'iUe sive pruinulg.iuda;. Ac omnia ct i et punrtiones. qua=cunque, tau£;entcs Miti con-
oini:.:]iMi!a judici.L, aLtincturas, c<;iivictiuucs, cerneutcs prsLiui^a, *eu ewrum aliquod : Ex-
condi-inuatioues, jicunas moitis, pa nas coqio- ceptis semper extra has pi xsentes omnibus et
raits impii!kOi)ameiite,ac omncs alia3 forist'uctu- ; Mngulis raptibus mulierum Angh vocat. rapes,
ras, executioner, punitiones, (t p:rnalitntes. \ et oinnihim ct su^nlis inecHiis et bugecriis, et
quocunque super vel versus ipaum Theophilum omnibus alii* eriminihus et otiensis, unde ali-
llig;:>in) r^tiune Mm occayione pr^'»ri>. .-ive eor. qua. bi!hi, aitio, querela, aut i; lonuatio, ante
alicujus habit, fact, reddit. *iie adjudicat. aut datain prff^entum e\hibita luit, it co;am nobis
habeud. faciend. red dead, seu adjudicmid ; I et consilio m^tro in Camera Stellntaaut aliqui-
Neciioji omn. etomnimod. action, sect, que re!. ! bus aliis curi:s norths apud \Vc»:monasteiiiiin,
jinpetitl'iU^ et •demand, quocunque qua nos > aut iu aliquu, \el aliquibus curhs nostris cccle-
verkus ipsum Theophilum Higgons ratione sive | siasticir, nut coram aliquo to! aliquibus judtce
ocjcasione pnBjoi^, sen eor. ajicujus habemus | vel judicibus am ooramissionariis nostris eocle-

vodb dependot remantt prosequenda.
Li cuius rei, &tc Teste, &c.

M lliUcoiiUuneth jour majesty's pardon to
sir Eurtace Harte, knight, of all adulteries, for-
aicatkxt* and incontineiicies committed with
any woman before this time, and also of all
OBprisouments, fines and punishments in respect
of the tame.

" Itcontaineth nevertheless an exception of

1 2.— The Earl qf Shrtuzbwy's Com. [74S

all rapes, incest and buggeries, and all sutea
wherein any bill or sutc is depending in the
court of Star-chamber, or any other your ma-
jesty** courts at Westminster, nr in any tcclesi-
astical court whatsoever. Thomas Ridlet,
Cancellarius Win ton. Ex. Levin us Munck."
Expeditum a pud Westmonasterium undeci
mo die Julii, 1616, anno regis J acobi quarto
decimo. Per Windebank.

91. The Earl of Shrewsbury's
10 James I. a. d. 1612.

oY fore* of certain letters (bearing date 28
Martii 1618), of the lords of the privy council,
directed to sir Humphrey Winch, sir James
Lay, sir Anthony Saintlcger, and sir James
HuUeston ; they did certify to their lordships
the claim of Gilbert earl ot Shrewsbury, to the
dignities of the earldom of Waterford, and
barony of Dunga r van in Ireland, in such manner
as iouuwedi;

King Henry the sixth, by his letters patent,
io the twentieth year of his reign, did pram to
his thrice beloved cousin John earl of Slirewa-
bory, in consideration of his approved and loyal
services, in the city and county of Waterford,
1 pro eo quoque eundem consanguincum nos-
1 tram pnedic to terra nostra Hibernian in parti-
* bus iln's contra inimicorum et rebellium nos-
'.trorum insuitus potent ins defendat, ipsum in
' comitein Water for J, uua cum stilo et tittilo ac
1 nomine et honorc eidcin debitis ordinamu* et
'creamus, habendum,' to the said earl and his
heirs males of his body ; and further by the said
letters patent did grunt the castle*, lordships,
honours, lands, and manors of Dungarvan to the
laid earl and the h its males of his body, to
hold the premises oi (he king and Ins heirs, by
homage and fealty, and hy the service of being
bis majesty's Sentsch dl in the realm of Ireland :
afterwards in the pn:liaincm culled Des Absen-
tees, holden at Dublin in Ireland, the 10th of
May the 23ih of Henry the eighth, by reason
of the lon^ absence of George earl of Shrews-
bury out of his realm ; it was enacted, that the
king, bis heirs, and aligns, shall have and en-
joy in the right of hi* crown of England, all ho-
nours, manors, castles, lordships, franchises,
hundreds, liberties, count-palatines, jurisdic-
tions, aiiuuiiit^, f^cs of knights, lands, tene-
ments, &c. and i\\\ and singular possessions,
hereditaments, and nil other profits, a* well spi-
ritual as temporal whatsoever, which the said
George earl of biircwihury and Waterford, or
any other person or persons had to his use, \'c.
King Henry the eighth, by his letters patent, the
twenty ninth year of his reign, reciting the ?aid
statute De Auaentecs, * no* uranuissa cousider-
4 totes, et nolentei st.itum, honorem, et digni-
' tatem praedicti Coin i lis dimiuuere,sed amplius
1 augere, de certa scientia it niero motu, &c.'
did graat to the said earl and his heirs, the abby
of Ranord, with the- hind thereto belonging in
the county of Nottingham, and the lordship of

Case ; or the Case of Dignities :
[12 Coke's Reports, 106.]

Rotherham in the county of York, the abbiefe
of Chesterfield, Shirhrook, and Glossadel in the
comity of Derby, with divers other lands and
tenements of great value, to be holden in ca-
pite ; and the auctions were ;

1. Whether by the long absence of the carl
of Shrewsbury out of Ireland, by reason where-
of the king and his subjects wanted their de-
fence and assistance there, the title of the ho-
nour be lost or forfeited, the said earl being a
peer of both realms, and residing here in Eng-
land.

2. Whether by the said act I)c Absentees, an.
28 H. 8. the title of the dimity of the earl of
Waterford, be taken from the said earl, as well
as the manors, lands, tenements, and other
hereditaments in the said act f pecitied.

And afterwards bv other letters patent of the
lords of the council, dated the f27ih of Sep.
1012, the two chief justices and thech<ef baron
were required to consider of the c:^se which was
inclosed within their letters, and wore to certify
their opinions of the surar.

Which case was argued by counsel learned
in the law, in behalf of the said earl, before the
slid chief justices and chief baron, upon which
they have taken great consideration and ad-
visement, after thev ha I read the preamble, and
all the said act ot* the 'Jb* 11. b\ it was unani-
mously resolved by them all, as folloivcth.

As to the first it was resolved, that forasmuch
as it does not appear what defence was lequi-
site, and that the con«id*rati«m executory was
not found by otiice to be broken as to that
point, the said curl of Shrewsbury notwithstand-
ing does remain carl of Waterford.

As to the second, it was resolved, thit ihe
said act of the twenty eighth of H. 8, De Ab-
sentees, doth not only take away the posses-
sions which were given to liim at the time of his
creation, hut also the dignity itself, for although
one may have a dignity without any possession
' ad siKtinendiim noinem et onus,' yrt it is very
inconvenient that a dignity should be clonthed
with poverty :. and in cases of writs, and such
other legal proceeding!, be is accounted in law
a nobleman, and so ought to be called, in re-
spect of his dignity ; but yet if he want posses-
sions to maintain his estate, he cannot press
the king in justice to grant him a writ to cull
him to the parliament ; and so it was resolved
in the case of the lord Ogle, in the reign of Ed.

743] / STATE TRIALS, 10 James I. \<S\2.—An(ngnmcra and Carfasion qf • [74*

6th, as the baron of Burleigh, lord treasurer of
England, at the parliament anno 35 Eliz. did
report : and therefore the act of the 28 H. 8,
(as all other acts ought to be) shall be espound-
ed to take away all inconvenience, and there-
fore by the general words of the act, viz. * of
' honours and hereditaments, the dignity itself,
' with the lands given for maintenance of it,
' are given to the king, and the dignity is ex-
4 tinct in the crown :' and the cause ot degra-
dation of George Nevill, duke of Bedford, is
worthy the observation, which was done by
force of an act of parliamenr, 16 June 17 Ed. 4,
which act reciting the making of the said
George Duke, doth express the cause of his de-
gradation in these words : ' and forasmuch as

* it is openly known, that the said George hath
' not, or by inheritance may have any livjcli-

* hood to support the same name, estate, aud
' dignity, or any name of estate ;' and often-
times it is to be seen, that when any lord is
called to high estate, and hath not convenient
livelihood to support the same dignity, it in-
duce th great poverty and indigence, and causeth
oftentimes threat extortion, imbraCery and main-
tenance to be had, to the great trouble of all
such countries where such estate shall happen
to be : wherefore the king by advice of his lords
spiritual and temporal, and by the commons in
tins present parliament assembled, and by the
authoiity of the same, brdaineth, established,
and enacteth, that from henceforth the same
creation and making of the said duke, and all
the names of dignity given to the said George,
or to John Nevill, his father, be from henceforth
void and of none effect, &c. In which act,
these things are to be observed.

1. That although the duke had not nny pos-
sessions to support his dignity, vet his dignity
cannot be taken away from him without an act
of parliament.

9. The inconveniences do appear where a
great state and dignity is, aud no livelihood to
maintain it.

3. It is good reason to take away such dig*

nity by act of parliament; and therefore the
said act of the 28 H. 8, shall be expounded
according to the general words of the writ, tt
take away such inconvenience: and although
the said earl of Shrewsbury be not only of great
honour and virtue, but also of great possessions
in England, yet it was not the intention of the
act to continue liiin earl in Ireland, when as
his possessions in Ireland were taken away from
him, but that the king at his pleasure might
confer as well the dignity as the possessions to
any other, for the defence of the said realm.
And the said letters patent de anno 29 II. 8,
have no words to restore the dignity which the
act of parliament hath taken away ; but it was
not the intent of the king * diminuere statum,

* honorem, et dignitatum ipsius Comitis,' but

* augere* his possessions for maintenance of his
dignity, for so much appears by this word
' augere ; for he doth by the said letters patent,
with exceeding great bounty, increase the reve- .
nues of the said earl in England, which the
king did think was an increase -of large posses-
sions in England, instead of all that which
was taken away from him by the act of the
28 H. 8.

And whereas it was objected, that the gene-
ral words ' honours and hereditaments' are ex-
plained and qualified by the said words relative
subsequent, * which the said George, or any to
' his use hath ;' and therefore it shall not be
intended of any honour or hereditament, but of
such whereof others are seised to his use, aud
no man can be seised of the dignity, and there-
fore that the said act doth not extend to it ;
but that it is to be understood ' reddendo sin-
1 gula singulis,' and these words, * which the
' said George earl hath/ are sufficient to pn**
the dignity ; and with this agrees the opinion of
all the judges of England in N evil's case
upon the like words in the statute of the
28 II. 8, in the seventh part of my Reports,
fol. 33 and 34.

92. The Arraignment and Confession of the Lord Sanquire, (who
being a Baron of Scotland, was arraigned by the Name of Ro-
bert Creighton, esq.) at the KingVbench Bar, in Westminster-
hall, the 27th of June, for procuring the Murder of John
Turner, a Master of Defence, whom he caused to be shot with
a Pistol by one Carliel, a Scottish-man, for thrusting out one
of his Eyes in playing at Rapier and Dagger:* 10 James, I.
A. d. 1612. [From an authentic MS. lent the Editor of the
second edition of this Work.]

ALL things according to the usual form being
prepared, and the prisoner brought to the bar,
hit Indictment was read.

* Wilson's account of this matter is as fol-
lows, in 9 Keanett, 688. " The wheel of for-
tune running towards tbt Scots, turned by the

Copiti Tndictamenti 11. Creighton, Armig.
" Middl ; Jra* presentant pro dom' rege
super sncr'ju suutn qdT cum Rob* Carliel nuper

viscount Rochester, was unhappily diverted
upon the lord Sanquire, a baron of that nation,
and married to a good family in England; who

745] STATE TRIALS, 10 James I. 1612.— Lord Sanq*ire,for Murder. [746

fie Loud9 yeoman, et Jacob9 Irweng nuper de
Lond' precP yeoman, Deum pre oculis suis
poo babentes, sed instigationediabolica seduct',
undecimo die Maii anno regni Domini nostri
Jacobi, Dei grat' Angl' Franc', et Hiberniae
reps, fidei defensor*, 6rc. decimo, et Scotiae xlv.
apod London, videl't, in parochia Sancti Dun-
stani in Occident', in warda de Farringdon ex-
tra London praed', &c. vi et armis, ore. felonice
ac ex maliciia suis praecogitai', in et super
quondam Joban' Turner adtunc. et ibidem in
pace Dei et dicti domini regis existen', insultum
ft afiraiam fecer', et pred' Robert us 'Carliel
quoddam tormentum, Anglice vocat' a pistol,
valor9 qninque solidorum adtunc et ibid' one-
tat9 cum pulvere bombardico, et glandine
pbmbem, Anglice, charged with gun-powder

years before, meeting with a sturdy fen-
cer, one John Turner, who was a master of the
weapon-trade in his own school, the young lord
strove to put some affront upon him, (making
it no little conquest to disgrace a master in the
lit, at they termed it) and the man apprehen-
sive of the attempt, with a hold rudeness
preiaed so hard upon him, that be thrust out
one of the baron's eyes. This mischief was
much regretted by Turner, and the baron being
conscious to himself that he meant his adversa-
ry some ill, took the accident with as much pa-
tience, as men that lose one eye by their own
default use to do for the preservation of the
other. Some time after, being in the court of
the late great Henry of France, and the king
(courteous to strangers) entertaining discourse
with him, asked him, How he lost his eye : He
(doathing his answer in a better shrowd than a
plain fencer's) told him, It was dune with a
word : The king replies, Doth the man live?
And that question gave an end to the discourse,
but was the beginner of a strange confusion in
his working fancy, which neither time nor dis-
tance could compose, carrying it in his breast
some years after, till he came into England,
*here he hired two of his countrymen, Gray
and Carlisle, men of low and mercenary spi-
rits, to murther him ; which they did with a
case of pistols in his own house in White-friars,
many years after the loss of his bodily eye :
Thtu the baron lost the eye of his reason. This
hold nefarious act was very deeply resented at
court, and the king's commands were so active
for apprehension of the murderers, that they
*ere all three taken ; one upon the borders of
Scotland, so far had his fears curried him;
another in a ship bound for Hamburgh, who
(scaping in a storm, the sens delivered up ; and
the lord himself being obscured, in this tem-
pest of his soul, hearing 1,000/. was offered
to bring bis head, so liberal was the king for
Janice, threw himself into the awns of his mer-
cy, by the mediation of the archbishop o( Can-
terbury, to whom he presented himself an ob-
ject of pity ; but no intercession could prevail,
their lives satisfied the law, the baron not hav-
ing the honour of o noble death.19 See also
fcpin.

and one leaden bullet, quod quidem torment*
idem Robertus Carliel in manu sua dextra ad-
tunc et ibid' habuit et tenuit in et Super praefut'
Johan* Turner adtunc ct ibid' felonice, volun-
tary, et ex malicia sua praecogitat', sagittavit,
et exoneravit, Anglice, did shoot off and dis-
charge, ct praed' Ho. Carliel cum glandine
plumbea praed', torment praed', adtunc et ibid'
emiss. prefatum Johan' Turner in etsupersi,
nistram partem pector' ipsius Johan' Turner
prope si nistram mamillam ipsius Job' Turner
adtunc et ibid' felonice percuss it, dans eidem
Jo. Turner adtunc et ib' cum glandine plumbea
pned' e torment' pried' adtunc et ib'm emiss.
in et super praed' si u is tram partem pector' ip-
sius Jo. Turner unam plagam mortal' latitud'
dimid' unius pollic' et profunditat' quinq; pol-
lie' de qua quid' plaga mortali praed* J. Turner
apud Lond' praed', in paroch' et ward' praed',
instant' obiit : Et praed' Jac. Irwenge, Teionice,
et ex malicia sua prsecogitat', adtunc et ib'm
fuit pnesens, auxilians, assistans, abet tans, con-
fortans, et mauutcnens, pnefat' Robert' Car*
liel ad felon' et muraV praed' in form' praed' fe-
lonice faciend* et perpeirand' : Et sic praed ict'
Robert' Carliel et Jacobus Irweng prsefat' Jo-
han' Turner apud Lond' praed', in paroch' et
ward' praed', modo et forma prowl', felon', vo-
luntary ac ex maliciis suis prtecogit' interiece-
runt et murdavcrunt, contra pacem dicti don/
reg' nunc, coron' et dignitat' suas : Quidam
Robert' Creighton nuper de paroch' Sanctas
Margaret' in YVestm' in com' Middl' annig'
Deum prae oculis suis nun ha bens, sed instigu-
tionc diabolica seduct' ante felon' et muroV,
praed', per pnefat' ltob. Carliel et Jacob. Ir-
weng modo et forma praed' fact' et pcrpetrat',
scil't, decimo die Maii, an' regni dicti domini
nostri .Tacobi, Dei grat' Angl', Franc', et Hi-
bern* regis decimo, et Scotiae xlv. praed' Robert'
Carliel apud predict' paroch' Sanctie Marga-
ret* in Westin' pr*d\ in com* Middl' praed' ad
felon' et murdr' praed' modo et forma praed' fa-
ciend' et perpetrund', malicios. fclonic', vol tin -
tar', et ex malicia sua praecogitata, incitavit,
morit, abbettavir, consuluit, ct procuravit,
contr' pacem dicti domini regis nunc, coron' et
dignitat' suas, &c."

He then was demanded by the Clerk of the
Crown, whether he was guilty of procuring the
murder of John Turner, or not guilty ? He
made answer to this effect :

u My Lords ; That which at my Arraignment
the other day I pleaded to the contrary, was
not that I could be so unworthy to* deny any
syllable of that I had formerly professed before
so honourable personages, nor out of any desire
that the least thing might be concealed, which
might serve for evidence to convince me of this
foul fact, whereof I now stand accused and in-
dicted, and whereof I formerly have, and now
do most willingly and penitently confess my-
self to be guilty ; my purpose then was oulv to
gain time for the disposing of some temporal af-
fairs, and for the better preparing of my soul
for her departure from this body ; for that I
should long live, I neither expect, nor much

T47] STATE TRIALS, 10 James J. l6l'2.-~Arrdgronau and Gx&mo*tf [748

desire. And now, my lords, if that may- stand
with the course of the laws, of the land (whereof
I am altogether ignorant) I will ease this jury,
the king's counsel, and your lordship*, and will
confess myself guilty of this fact in the same
manner as it is laid in the Indictment. — Or if
that may not be permitted hy law, yet shall I
give such evidence against myself, as I shall not
leave it needful in any point to be aggravated;
only in some circumstances I will endeavour, if
not to extenuate the fact, yet at least to move
your lordships and this worthy audience to pity
m v case ; wherein as I know I can sny nothing
ot substance thnt can help in a legal course of
proceeding, so I much fear that those circum-
stances I would deliver, I shall not be able at
full to express my own thoughts, both by reason
of my own imperfections, and also for that I
lack the perfect use of the phrase of this coun-
try. But for that point, in such passages as I
shall not be understood in, I will humbly in treat
your lordships in your wisdom, and this audi-
ence in their charily to c.»nce ivc, that my mean-
ing is, to make a full and true relation of all hope, by Christ's mercy, will make satisfaction
the passages of this business. — The first motive for my offence. — 6, 7. For his wifc and po»te*
of this fatal accident was (as it is well known.) I rity, some relief J liave given already, and more,
that Turner playing with me at foils, now about ! God willing, I will add unto it. — 8. For Carliel,
seven years past, at my lord N orris's house in ! his too much affection to me made him too for-
Oxfordshire, put out one of my eyes, and that I ward an executioner of my will ami wicked pur-

I doubt not but that my hearty contrition and
true repentance is accepted before God, and
that he of his mercy hath pardoned mine of-
fence.— 2. For my oflooce unto the king's ma-
jesty ; if I had more than my life to make sa-
tisfaction unto him, I would think myself hap*
py : and this favour I request of your lordships,
that the king may be truly informed of the sin-
cerity of my confession, and of my hearty re-
pentance, and if it please him not of his favour
and clemency topardon me this offence, yet I
humbly desire, That I may die in his grace and
favour, — 3. For mine own country, let me in*
treat you that this my singular offence may not
be laid as an aspersion -or blemish unto my
country ; but that myself alone may bear the
shame of it, and my body the puuithinent.— 4.
Of this country, because I do deserve no favour,
I desire that of Christianity, you would be
pleased to pity me as a repentant and sorrowful
man. — 5. For the party murdered, my blood
must satisfy the law, to which I shall add such
true repentance and hearty sorrowfulness, as I

(as my soul and conscience was over-persuaded)
willingly and of set purpose. At the taking
up of the foils, 1 proles* t cl unto him, I played
but as a scholar, and not as one that would con-
tend with u matter in his own profession, and
thereupon requested him, That he would play
as with a scholar ; the order whereof, though it
be unknown to your lordships, yet to divers
honourable personage*; thit are present it is
known to he, to spare the f.ia\ Afr« r this loss
of mine eye, and with it the gre:it hazard of the
lo^s of life, 1 must. roiilV«sS I ever kept a prtidgc
of my soul against him, hut had no purpose to
take so hi«ih a revenue; vet in the course of
my rev.Mijje, I considered not my wrongs upon
terms of Christianity, for then I should have
sought for other satisfaction; but being trained
up in the cmrt* of princes and in anus, I srood
upon the terms of h-inour, and thence befel this
act of dishonour; whereby 1 have offended, 1.
God; 2. My prince; 0. Aly native country;
4. This country ; 5. The party murdered ; 0.
His wife ; 7. 1'osrerity ; «.„ Carliel, now exe-
cuted ; aud lastly 9. Mv own soul. And am
now to die for mine cuTenre. — 1. First towards
God ; I hope that my earnest prayer ajul snp-
plica'ions unto him, h:ivo,(iii>w at list) obtain-
ed his grace and pardon for this uiv h >rrible
sin, for at my return from this place, the people

pose ; but I hope by his repentance, he is par-
doned his offences to God : in him I mibt con-
fess my sin is doubled, and I pray Gtxl to par-
don it ine; for the manner of the murder, I
neither commanded, nor gave allowance to
pistol him. But I confers, that at the request
of C'arliel and Grave, I gave either of them a
pistol to bring themselves off, after they should
kill him. For him who is now suspected, I
protest before God and all this company, I
never knew him, nor spake with him, nor dealt
either directly or indirectly with him in all my
life. — 9. Lastly, For myself, I commit my
body to the king, and my soul to God.

" l>ut, iny lords, besides mine ow n offence,
which in its own nature needs no aggravation,
divers sc .»nd do us reports are given out, which
hlemuh my reputation, winch is more dear to
me than my life — First, Thnt I made siiew of
reconciliation with Turner, the which I protest
is u,k:eily untrue; for what 1 have fo: mcrly
said, 1 do ;igai:i assure your good lordships,
That put after my hurt received, 1 kept a
m udge in my soul against him, and never made
the least pretence of reconciliation with him;
yet this, my 1 ,nU, I will say, that if he would
have confessed Mid sworn he did it nut of pur-
po-e, and iv.ihal would have forsworn arms, I
would have pardoned him: for, my lords I con-

(ofwhom 1 expected «sconi and disgrace) did by side red that it must he d'ine eitlirr of set pur-
their pity and cleuuncy mo\e that in me, which I po>e or inuonuitiv ; if the rir>t, 1 had no occa-
the pride of mine own heart would not till then | M<m to pardun tiiai; if the lost, that i* no excuse
suffer me to see; then I Ik came to have a in a master: and therefore tor revenge of such
sense and feeling of the f«*utne>s of my offence, | a wrong I tiumuht him unwuithv to bear arms,
which formerly I could not persuade myself — The mcuiuI obloquy is, Tint to defer ihe
was any more than a just revenge for so foul a
wrong ; and since that time such inward com-
fort and consolation have I felt in my soul, chat

revenge s i lung, argues an inveterate malice,
and an ill disposition. For tlie deferring of my
rerengQ, I answer, that at tha receiving tint

740] STATE TRIALS, IOJamisI. 1612.— Lord Smqnwc, for Murder. [750

hurt I was so astonished that I thought I had
bees slain ; and by the opinion of my physi-
cians from Oxford and other places, my life
was then in much danger for many days after ;
yet after some months recovering my strength,
aad getting some ease in wine eye, I went im-

with ease have gone over into France, for I had
a licence to travel, and for transporting some
horses. — Another aspersion is laid on me, that
this was God's just judgment, for that I whs an
ill-natured fellow, ever revengeful and delighted
in blood. To the first, I confess 1 was never will-

mediately over into France, and there continued ( ing to put up a wrong, where upon terms of
two years, hoping of the recovery of mine eye honour 1 might right myself, nor never willing to
again. At the king of Denmark's coming pardon where I had u power to revenge. To the
huker, I came out of France, and then hearing second 1 say, that I was never guilty of blood till
at Greenwich that Turner played tltere before now, yet 1 have liad occasion to draw my sword
da? two kings ; 1 must confess, that after those . both in the field, and upon sudden violence',
prises done, 1 sought fur him up and down : . and have both given and received hurts, and yet
and if I hud met him in any place of the court, was never guilty of blood unto death till now ;
1 was then resolved to have run him through; , only I must confess that upon commission from
though I must coufess the place had made my ' the king to suppress wrongs done me in my
offence far greater. But missing him there that ' own country, 1 put divers of the Johnsons to
Say, the next day I went after him to Loudon, : death ; but lor that 1 hope, I shall need neither
tad there sought after him for two Hay% but to ask God nor man forgiveness. — Lastly, The
could not meet with him ; die first mows then I ' objection that since my imprisonment I have
beard of him was, that he was gone into the , attempted, by the means of my countrymen, to
coantry un(o the lord Norris's, and so for that ' break prison and escape, a course which 1 pro-
line 1 was prevented of my purpose. Before test upon my salvation was never moved unto
bis return i went into Scotland; and after my j me by any, nor did I ever lodge such a thought
return again, I laid about for him, ever intend- \ in my breast; and for the further confirmation

ing all this while to have acted it myeelf. But
seeing the difficulty of it, both for that I was
well known about the VYhitc-friurs, where he
dwelt and kept school, and yet did not myself
know Turner, but carried oil. era with me for
my direction, I afterward ngrced with two of
my countrymen, who undertook the acting of
this tragedy ; but nothing ensued upon ir, and
therefore I desire I may conceal their names.
After this, roy occasions called me over into
France and other parts, so that my residence in
this country was very little, till now at last I
dealt with this unfortunate Carliel, who took
oDto him one Gray e for his partner, and brought
biiu onto mo ; and those two 1 directed to
take a lodging in the Fryers, the better to dis-
corer how myself might come to revenge my&clf
on the person of Turner. Rut after some delay
tUy told me, I could with no conveniency
come myself to do it: but they said, they would
undertake it: to which I assented, but pre-
scribed neither time nor manner how they could
it. After this, Graye fell quite off, and

of tint, I refer myself unto the marshal, and
his officers, who in the prison have seen and best
know my deportment during my imprisonment*
— " Thus, my lords, have I troubled you with
a tedious discourse, whereof I know no circum-
stance can in any point of law do me any good,
nor uould I be thought all this while to plead
for my life; my desires only are, that my life
might satisfy for mine offence, mid that my re-
putation might not be iefc defamed.

" Lastly, my lords, and the rest of the honour-
able and worshipful presence, I desire in charity,
that you will consider these few circumstances
to move you to pity. 1. The indignity I re-
ceived from so meau a man. 2. That it was
done willingly, for I have been informed he
bragged of it after it was done. 3. The per-
petual loss of mine eye. 4. The want of law
to give satisfaction for such a loss. 5. The
continual blemish I received thereby. Lastly,
Uuto this, I add my voluntary and free con-
fession. Let me now add my hn>t request to
your lordships, that the king mny he truly in-
weut to the ships for Denmark, which Carliel i formed of thc*e tiling. Contrition, confes-
came aud told me, and withal that Turner was ! siou, and satisfurtiou are thi? means to obtain
than gone out of town ; but since Grave hud . pardon from God for our sins; and the^e many
deceived him, he would have nobody but him- times do move the mercy of princes, which if
•eh* and would assuredly kill him at his return, ' his highness shall extend to me, 1 shall desire
(hough it were with the loss of his own life, i my lile may be spent to do hiin service; or if
Bat I being long delayed by two others whom i not, 1 shall most willingly submit myself to his
formerly I spake of, and now also by these two, | majesty's good pleasure, nud yield to die."
Mai teeing Graye. gone, I thought that Curliel i The lord Sanquiie hnving ended his speech,
bad spoken this but to vj\t me content, and , sir Francis Bacon (Solicitor General) spake as
(be more to insinuate himself into my favour, follow eth:

*>that I left him without any further direction, . Sir Pranrit Bacon. In the ra«e of life and
or much regard to his speech; and never i death the Jury's pait i* in eflV-ct discharged;
beard more of him till I heard that Turner for after a frank and formal confession their la-
was slain ; the time whereof, and the manner, hour is at an end : *o th:it what hath been said
I protest before God and his angels, I was alto- ; by Mr. Attorney General, und shall be by niy-
Hfther ignorant of; for had I expected it to , self, is rather convenient than necessary. — my

ins bam done, I would not have staid myself
cl» Jatt cast, for before that time I could

lord Sanquirc, your fault is great ; it cannot be
extenuated, and it needs not be aggravated ;

TM] STATE TRIALS* JO James I. \6\2.— Arraignment and Conjmian <f [7*

■nd v:r it Deeded) you hare made so full an ana*

una? of it, out of jvHir own tiqHing, as it cannot

fee matched by lnyjeif, or any man else out of

a conceit. — Ths Christian and penitent course

of your*, draws me ti u» tar, tlwt I agree, that

*v eu in t&tmoe e% :Ls there are degree* : to this

.instance 01 your otfence is not of the highest

strtiQ ; tor if you tvid sought to take away a

ma:i> lii'c for his vineyard as Ahab did, or for

emy as C*i:i did, or to po>ae»» his bed as David

diti, surriy this otfcuce had been more odious.

\>ur teiupution was revenge, which the more
natnr.il .i i* tv man> tne Ulnre uave jaws> ^^

*h\ in* ami human, sought to repress it : (mihi
u*i*vU. \ But in one tiling you and I shall
iiev*r agree, that generous spirits (you say) are
lumi 10 forgive ; no, contrariwise, generous and
iuagu.iiiiiiu»a*»piritsurereadiesttoforgive; and
U i> ;i weakness and ini potency of mind to be
unable to forgive.— But to the purpose ; how-
•joer murder may arise upon several motives
Icvfc or more odious, yet the law both of God
fruu1 man involves them in one degree; and
tucicuw vuu may read that in Joab's case,
which was a murder upon a revenge, and match-
ed * ith your case ; he for a dear brother, and
jou tor a dear part of your own blood ; yet
ih*iv was u severe charge given, ' it shall not
» pout unpunished.' — And certainly the circum-
»uuce ot time is heavy unto you ; it is now five
\«mi» since, this unfortunate man. Turner, be it
upon accident or despight, gave the provocation,
winch was the seed of your malice. All pas-
moiw are assuaged with time; love, hatred,
grief, c^c. all fire "burns out with time, if no
tcwcl he put to it : for you to have been in the
gull ot* bitterness so long, and to have been in
u ii'ttlvMi case of his blood, is a strange exam-
ple, And 1 must tell you plainly, that I con-
ceive you have sucked those affection* of dwell-
ing iu malice rather out of Italy, and outland-
ish manners, where you have conversed, than
nut of any part of this island of England and
Scotland. — But now farther, my lord, I would
have you look a little upon this offence in the
glass of God's judgment, that God may have
the glory. You have friends and entertainment
in foreign parts : it had been an easy thing for
you to have set Carliel, or some other blood-
liouud ou work, when your person had been
beyond the seas ; and so this news might have
come to you iu a pacquet, and you might have
»o looked on how the storm would pass : but
(iiid U' reaved vou of this providence, and bound
\w\i here tinder the hand of a king, tint is,
I hough abundant in clemency, yet no less zea-
l.ius of justice. — Again, when you came in at
I .imU-lh, you might have persisted in the de-
nial ot' the procurement of the fact, Cailiel (a
i% nihilc man) might have cleared you : for they
ihm tfi«> resolute i» mischief, are commonly ob-
•imiic hi concealing their procurers ; and so
himIiuik ■h-mld be ag:tin*t ymi but presumption.
\\w\ ihtu (iod, to take away all obstruction of
m»M» 1 1 tt "a >ou the grace (which ought indeed
It* W more comfort unto you than any evasion,
** ie\ue, whereby you might have escaped) to

i

make a clear confession. — Other impediment
there were not a few, which might have bee
an interruption to this day's justice, had nc
God in his providence removed them.— Bu
now, that 1 have given God the honour, let m
also give it where it's next due, which is to tb
king our sovereign. This murder was no soonc
committed, and brought to his majesty's ean
but his indignation (wherewith at first he wi
moved,) cast himself presently into a great det
of care and providence to have justice done.-
First, came forth his proclamation somewhat c
a rare form, and devised and in effect directe
by his majesty himself, and with tliut he did pre
secute the offenders (as it were) with the breat
and blasts of his mouth. Then did his inajest
stretch forth his long arms, (for kings you knot
have long arms) one of them to the sea, wher
he took Gray shipped for Sweden, who gave th
first light of testimony ; the other arm to Scot
land, and took hold of Carliel, ere he was wan
in his house, and brought him the length of thi
kingdom under such safe watch and custody, ■
he could have no means to escape, nor lean
no lessons to stand mute; in which case pet
haps this day's justice might have received ;
stop. So that I may conclude that his majest
hath shewed himself God's true lieutenant, ani
that he is no respecter of persons, but English
Scots, noblemen, fencer, (which is bat an igno
ble trade) are all to him alike in respect of jus
tice. — Nay, I may say farther, that his majest
hath had in this matter a kind of proprieties
spirit ; for at what time Carliel and Gray, am
you, my lord, yourself, were fled no man knei
whither, to the four winds ; the king ever spak
in a confident and undertaking manner, tha
wheresoever the offenders were iu Europe, b
would produce them forth to justice ; of uhicl
words God hath made him master. — Lastly, t
return to you, my lord, though your orfenc
hath been great, your confession hath been free
and your behaviour and speech full of discre
tion ; and this sheweth, that though you couli
not resist the temptation, yet you bear a gene
rous and Christian mind, answerable to yon
noble family of which you are descended. Thi
I commend iu you, and take it to be an assure
testimony of God's mercy and favour ; in re
spect whereof all worldly things are but trash
and so it is fit for you, as your state now stand
to account them.

Then being demanded, whether he woul
speak any more for himself, he said, no ; oal;
desired that the king might be made acquaint*
with what he had already said.

Whereupon Judgment being required for th*
king ; Mr. Justice Yelverton gave Sentence o
death against him as followuth :

" My LordSanquire; You are a nobleman o
Scotland, and (hs I have heard yourself say) :
baron of above three hundred years antiquity
which 1 believe to be true, iiut now vou havi
most wonderfully dishonoured the nobility o
your ancient house by this unhappy action; ai
action of murder so base and so barbarous, a
the like I never heard of, nor scant the like i

MS] STATE TRIALS, l() James I. 1612.— Lord Sanquirc, for Murder. [754

yet surely it is fit enough for a mail of your
merit and offence. And the luw of England
lu-.ikes no difference of subjects in matters of
ft Ion v for the manner of their deaths, when
there is no difference of subjects iu the manner
of their offences; and not where, but how a
mun dicth, maketh to the purpose : for the way
to Heaven is of like difference from all places.

4 1 " I II • I * ■ » ■ * •

man shall never read df.— The manner of it is
such, as is exceeding strange: done upon the
sudden! doneinan iustant! done with a pistol!
dene with your own pistol ! under the colour of
kindness: As Cain talked with his brother Abel,
he rose up and blew him. — Your executioners
of the murder left the poor miserable man that
was murdered no time to defend himself; no

time to pray for himself; scant any time to And, indeed, there is no death inferable, which
breathe out these last words, Lord huve mercy the death of the soul doth not follow. — Death
upon me! The ground of this malice that you is the way of all the world, the passage of all

bore him grew not out of any offence that he
ever willingly gave you, but out of the pride
and haughtiness of your own tclt"; for that in
the false conceit of your own skill, you would
needs importune him to that action, the sequel
whereof did most unhappily breed your blemish,
the loss of your eye. — And you have prosecuted
this malice very long ; for you solicited others,
four or five year* at the least, to have committed
this foul and heinous murder. And this your
fault is tar greater than if yon had committed
the fact yourself; for then it had been but your
own single murder only ; but now have you
made them who were rhc executioners ot' your
malice, murderers also with you : so you lime
made thejr bodies subject to the justice of man,
and their souls subject to titat, justice of God,
which, without his great mercy, they must en-
dare.— All these circumstances do exceedingly
aggravate your offence. — This offence of yours
is called one of the crying sins; for God said
unto Cain, ' The voice of thy brothers blood'
(a strange phrase, a voice of blood !) crieth unto
'me from the ground/ — And for the punishment
of it, it is sind elsewhere iu the sacred word of
God, ' Thv-. he that sheddeth man's blood, by
( man sh id his blood be shed/ Again, ( But this
* punishment of blood is not indeed to shed
( blood ; for it is better tlrnt one should die by
4 the law, than many without it.' — You are, my
lurd, to take a serious consideration of the short
(State of your life wherein presently you stand ;
for by the justice of the law, you must suffer
the pains of death, and be assuredly persuaded,
the time is not far off: for though the kinj; be
exceeding merciful, yet is he nho exceeding just.
And he hath had such an txtrnoidiuuiy cure of
justice in this case, that though it were plotted
uy you, my lord, that the nuuderer should es-
cape, and fly into his own country of Scotland,
far remote from the justice of the luw of Eng-
land; yet bis majesty's care hath so pursued
him, that there he wus quickly apprehended.
and that country could be no protection for him.
Nay, his majesty m»>st religiously, and most like
a just prince, protested, that if he were in
any (tart of Christendom to be found, he would
sorely have him; so zealous is he of jn*iii;e iu
this so heinous an offence of murder. And m
a matter that concerns justice, he repeat not
his owu native. nati.m of Scotland, more than
he doth his own hereditary realm of England. —
Therefore, mv lord, prepare yours* it to die ;
and though the manner of your death be by
the law of England unfitting (as you peih.ips
may think) fur a man of your honour and blo-jd,
VOL. II.

the earth, mid the end of nil mm ; and not
men alone, but all worldly things are mortal,
the soul of man only excepted. — Therefore, my
lord, provide carefully that your soul may have
a Rood and godly departure from the body,
which will surely be by your unfeigned confes-
sion and earnest repentance of ail your sins, and
especially of this mu>t bloody, this most heinous
and crying sin, by your humble calling and
crying upon (iod for his mercy and forgiveness,
and by confident and stedfast faith iu Christ
Jesus, to receive and accept it. — For repent-
unce is an act of all ;;cfs, and faith in the mer-
cies of God is the Star that goeth before the
face of repentance, and very exceeding available
by these three syllables, peccavi. And so with
this short exhortation i will end; and wi»b,
whatsoever your life hath been heretofore, yet
that your death may be happy now. And so I
will proceed to Judgment.

"You have been indicted as accessary to wilful
murder, as accessary in procuring the murder ;
and upon this indictment you have been,
arraigned, and upon your arraignment yon
pleaded Not Guilty ; but since, upon better ad-
visement and judgment, you have confessed the
fact: The court therefore doth awnid, That
you shall be had from hence to your former
place of imprisonment, and from thence to tho
place of execution, and there be handed till you
be dead. And God have meiey upon your
soul."

And then the judge, speaking to the sheri'V,
said, Mr. Sheriff, sec execution be done.

On Monday following*, beiugbt. Peter's day,
the °.9lh of June, lGlvf, the lord Sanquirc w;is
brought from the prison somewhat early in the
morning, into tlu? Great Palace-yard, before
Westminster-hall great tfate, there to sutler
death on a y-bhet erected tor that purpose:
where being ascended the ladder, he "pake to
the people a good while, excusing him-cl!" for
the fact no oJ.erwise thai; formerly he had
done at ».he King's- bench b:>r : A-sing Girl
and the world forgiveness fir the same, protect-
ing hi- detesrnt.ion iherrof, now tint \»j truly
understood the foulness of it: siltirmiiiL', that
till he li< >t was luoiivhf ro hu tu.il, the devil
IkhI v) l'.ir biimlcd his m derstand.ug. that he
comd not apprehend tnnt he had done am;.-*,
ur otherwise ilun w*s lilting fur a man of h'j
rtin'v and quality, having been trained up in
the wai*. an I !i\'-d the life of a soldi* r, which
toil of men, be J,ud, stood more i>n pmiits of
honour than lelh-ion. He humbly thanUd
God that h.td opened his eves, and yi'cn him
3c

755] STATE TRIALS, 10 Jamls I. \6V2—Arraignaiciit andJEonfisnm qf [756

the grace to see his offence, and truly to appro I
bend the foulness of it. At length, lie prolt hs-
ed himself to die a Roman catholic, and desir-
ed nil Roman catholics there present to pray
for him. lie said, that for worldly respects, he
had loug neglected the public profession of his
faith in that kind, and he thought God was
nngry with him for il ; and he knew not but
God" might inflict this just punishment upon
him, for that neglect ; and therefore he advised
ull men that stood so affected in heart, not to
procrastinate nor delay ; for delays, he said,
are dangerous. The religion, he said, was a
good religion, a saving religion, and if he had
been constant in that religion, he was verily
persuaded he had never fallen into that misery,
bo filling to his prayers for a while in private,
and after iu public praying for the king and
queen, their royal issue, and the state both of
England and Scotland, with the lords of the
council and church, he submitted himself to
the will of the executioner ; who casting him
off the ladder, suffered him there to hang a long
time, that people in this great man might take
notice of the king's greater justice.

Note, That this lord was tried by the coun-
try, but challenged liis trial by peers, which
was denied him, because though he were a lord
in Scotland, yet he wits no lord of the parlia-
ment here in England, nor had any English
barony. — Note also, That Carliel, and another
with him, but whether it were Gray or no, I
cannot certainly aliirin ; but sure I am, it was
one that was with Carliel when he did the fact
(and I take it to he my lord's page), were
hanging on two gibbets set up in Fleet-street,
over against the great pate vf the White- friars,
very early in the morning, before the lord San-
quire had his trial *. — Note also, That one of
those gibbets was higher than the other by the
length of a man, or thereabouts ; and I de-
manding the reason thereof, was answered by
n stander-hy, that the manner of Scotland is,
Lhat when a gentleman is hanged with a man
of meaner quality than himself, the gentleman
hath the tumour of the higher gibbet, and
thiukj himself much wronged if he he not so
disposed of. Whether tins answer was serious,
or by way of scorn, let him that desirtth to be
resoU ed by enquiry resolve himself.

two chief- justices and chief-baron, and com-
manded there should be speedy proceeding
against the lord Sanchar, Recording to law.
To which the justices answered, That the lord
Sanchar was hut an accessory in this case, and
therefore he (a) could not by law be convicted
before the principal is attainted; but if the
principal could be apprehended, then both
might be attainted with more expedition than
could be, if the principal should be attainted
by utlngary. Then it was asked, how the lord
Sanchar, being an ancient baron of Scotland,
should be tried : And it was answered by them,
That none within this realm of England is ac-
counted ( b) a peer of the realm, but lie who is
a lord of the parliament of England ; for every
subject either is a lord of the parliament, or
one of the commons, and the lord Sanchar was
not a h»rd of the parliament within this king-
dom, and therefore should he tried bv the com-
mnns of the realm, \iz. knights, enquires, or
others of the commons; and therewith agree
our books, as well ancient as others, ( c) HE.
3, Brief 473, b* R. 2. (d) Process, pi. ult. (e)
20 E. 4, C, a. b. 20 El/ (/J 360. Then the
king a *:kecl, in what court, after the principal is
attainted, the lord Sanchar should be tried ?
And the justices answered, that forasmuch as
the procurement was in Middlesex, it was most
convenient to try him ia the King's- bench.
And thereupon the king resolved, that he should
not be committed to the Tower, but to tiie pri-
son of the King's-bencb, where he might be, if
occasion required, sooner and easier examined,
than if he should be committed to the Tower:
And the king commanded the said justices,
that all things should be prepared fdr the legal
proceeding ; and that he would endeavour to
cause not only the principal, but others also
who might discover the truth of the fact, to be
apprehended. And thereupon the said chief-
justices conferred with the other justices of die
king's-bench, before whom the lord Sanchar
should be tried. And before the in divers ques-
tions were moved concerning the legal proceed-
ing iu this case. 1. I'pon the statute of (g)
'1 E. <>, c. i>4, by which it is enacted, as to this
point in this manner : 'And further be it en-
acted by the authority aforesaid, That where
any murder or fcior.v hereafter shall be com-

t milted or done in one county, and another
Sir Edward Coke, in his lrtitli Report, p. 117, ' person or more shall' be accessory or accesso-
et scq. gives the following Account of i rjes by any manner of wise to any such mur-

The Lojtu Sanchar^ Casl.

1 der or felony in another county, that then an
Robert Crerghton, lord Sanchar t, a baron j indictment found i.r taken against such acces.

of Scotland, of his malice prepense at West- ■ ■

miuitcr, in the county of Middlesex, incited : (a) 4 Co. ;3, b.

and procured Robert Carliel to Kill John lur- I (k) Co. Lit, 16, b. 7 Co. 16, a. Calvin's

ner, i\1m> accordingly U!»«ocintin<* himself with Case, 2 Inst. 3 In-t. M).

one J:unes Irwch^' the 1 lib of May now last ; I c) 7 Co. 15, b. lo\ a. Calvin's Ca»e

past, killed the »;.id .lohn Turner within the : ^ (d) l'itz. lYucebs 2vM, 7 Co. l;., b. Calvin's

citv of liOiidon. And the Uinji iu his /enl to Case.

justice in this case*, immediately sent for the

* See the Record of the conviction of C'arlitl
and Invent in Coke's ninth Report, p. 114.
f Wilson's Hist. p. 59, 00.

(e) 7 Co. Ij, b. Calvin'* Cu»e. Br. Xo-nic
de Dignity 19.

(/) 7 Co. l.*>, l». 23, a. Calvin's Case. J.H\
Clio, pi. G, Co. lit. Jol, b.

($) 42 «t 3 LI. ti. c.2t. J lust. J!J

757] STATE TllIALS, 10 J oi*» I. ] 0 1 'J.— Lord Smquirr,for Murder. [7£5

«oryf or accessories, upon the circumstance of; stntute, was, It the (i) justices of the Kings-
such matter before the justices of the peace, or j bench are witliiu these v. ords, justice of G aol-
other justices or cuii]iiu>si'<iii?rB, to enquire of delivery, or Over and Terminer ? And il was
felonies; where such olfence of accessory or objected, That the KmjrVlJench is the highest
accessories io any manner of wise shall he com- court of ordinary justice in criminal cau-e*
inittcd or done, shall he as i;ood and eil'ectual ' within :hc realm, and paramount the authority
in law, as if the priuc-pal ofleure had been : of justices of (luol-dclivery, and cmiuiii«siouers
couuuitted or done within the same county . of Oyer and Tenniner ; and as it is held in 27
where such indictment shall be found: and > Ass. 1. is (k) more thiui the eyre; for they
that the justices of gaol-delivery, or oyer and : shail examine the errors of the justices in eyre,
terminer, or two of them, of or in Mich county ' gaol -deli very, and oyer and terminer; and
where toe odencc of any such accessory ahail , therefore inasmuch as the justices of the King's
be hereafter committed and done, upon suit to \ bench are paramount and superiors over all
them made, shall write to the Custos Kotu- ' the others, they cannot be included within their
lorum, or keepers of the Records, where such • inferiors, viz. justices of gaol-delivery, or of
principal shall l>e hereafter attainted or con- I oyer and tenniner. Also the justices of the
victetl, to certify them whether such principal Kin^Vl-emh have a distinct and supreme
be attainted, convicted, or otherwise discharged 'court ; and the justices of iraol-th. livery, and
of such priucipal felony ; who upon such w.'it- ! oyer and terminer, other distinct and suhordi-
ingto them, or any of them directed, shall j nnte courts. And therefore it uih adjudjr-J,

Hill. JO I'l. Keg. in the KiiisV-hruch, tnal
where It. (tj Smith \\ :n indirleii of l-#rgcry of
a false ilctf\ at the sessions o\ ( m) peace in the

make sufficient certificate in writing, under
their seal or seals, to the- >aid justice.-, whether
such principal to attainted, convicted, or other-
wise discharged or not. Ami after they that so county of Oxford ; ar.iJ the *lati:teol" ."# EI. c.
shall have the custody of such record*, do ccr- 11, which hoiicu the punishment, and upon

tiijf that such piiucipal is attainted, convicted,
or otherwise di?char<:ed of such ollcnce by the
law; iliat theu the J unices of gaol-delivery or of
over aad terminer, or other there authorised,
shall proceed upon every such accessory, in the

which act the ii»'ii«tmcnt was ii-ounded, pri-
vities, that the in lictment shall i.c tai:i ;> beJ-re
justices of as^i/e, and justices of oyer aao ter-
miner: and altho'i'jh the justices of peace, by
their commission have power to hear ami dt-

county or counties where such accessory or ac- tennine Monies, trespass, cvc. and have an cx-
cessories bectune accessory, in such manner j press cl.iu?c ad awiiinJum ct tenuiutina* su
tod form as if both the said principal o Hence that they arc, as it was urged, ju-iict-> of oyer
and accessory bad been committed and done in and terminer ; yet it was resolved ],tr luC cur'

the said county where the otfence of the ac-
cessory was or shall be coromi'.ted or done.
And that every Mich accessory, and other ol-

that because t litre wjh a com niisir.ii of oyer
and tern liner known distinctly by that name,
and the commit. ion of the peace hiijwn dis-

feoders above expre«*ed, shall answer upon ; tinctly by another name, thai l lie said indict-
their arraignment*, and receive such trial, judg- j incnt was not well t:»!;cn, ai:d lucrcfoie was
roent, order, and execution, and suffer such fur- ! quashed. But it was resolved, thit the (n)
fcitures, pains and penalties, as is used in other | justices of the Kiii^V-hench ate the -overt].. i
cast) of felony : any law or custom to the con- justices of gnol-delivery, ami of o\cr and tor-
trary heretofore used in any vtitenotwithstand- miner; and therefore ti.ev are iiiclu h.'d within
iue. And upon this statute, divers (h) ques- ' the sanf words : ami tiiercf »rc it i* held in 7 E.
tions were moved ; 1. If the indictment in the , 4, VI. a. <\ 4 H. 7, VI. that if :.u indictment of
county of Middlesex of the accessory shmild forcible entry he removed into the Kiii^Vbcnrh,
recite, that tlie principal was indicted beioir ■ thejusticeiulThe Kiny'-j (a) bench sliall award
Commissioners of oyer and terminer in the ustilution; amMet ih«.; statute of Oil. C. c. °,

city of Loudon (as in truth he v. a?; or if the ! - --■ - -■

indictment should recite in facto, tint the prin- j (i) 3 Just. KKJ, :i M ir. Hr. Oyi-r and Ti-r-
dpal committed the murder in Loudon, &c? • oiiu. », 4 Inst. «:!,IV^l'v, o(i, l'-^ua 1U3, b.
And it was res*dved, 'that the indictment in (k) .Stain. Cor. fij, a. 4 ln-t. 7J, fit/. As-
Middlesex sb/iuld recite, de J'aclv, that the ' ^ccz\6, Br. l>«--ipe '11, iir. Juri-tiict. 06, Po*-
principal committed tlie murder in London. , tea 1 Ki, h. Ijr. Jinijfo, Javtics, 6:c. 16.
for the recital, that the principal "is iud:cicd (() Cro. Ki. iii, Of, J lu»i. 10^, Caw!.
of murder in Ixmdnu, i» no direct aibruiatiou : °6K, Cj^.

dot the principal committed tie murder; Tor fmj Cr. El. 001,0^7, Cawl. '*'0JJ, 'i59,Sa\il
the indictment is but an accusation, and in l.cu lo4, ii. I', il. \(>.j.

of the king's Decia rath m, which may be true (nj II. I*. C. \*>5, C-.-vlcy 66, 3 In-t. 10,3,
or fake; and this arrets wiih foniier pre e- ', At. lea llti, a A Mar. Hr. Oyer et Tcnumet J>,
de&U And accordingly the indictmcM uas -1 i »-•- 1- 7:i.

dntwn ; upon which the acces^/ry was con- *■*>; Kel'-v. 10'^, a. b. My. Y>)7 , pi. 0, 11 Co.

victed, as appears before by :ne indict iue lit it- I », a. b. o;>. a. 1 KjH. Hep. 9?, \\, forcible

•elf. KijTt 27, Uail. '.I j, pi. :j, Uall. m Kclw. i!Ul,

3. The second question mored upon the p>- ^ L>aji. n, Nu-b. id 'I, Fii/:. Eutre 41, llrm

— . K«;t:tuc, 11 Uall Jusi. c. 3ll, J«nk. Cent.

(h) 3 lost. 48, 49- f i:7; <m

i

759] STATE TRIALS, 10 James I. I6l2.—Arraign*icni and Confaswu qf [760

speaks only of justices of the peace; but the ' upon appeal of commandment, force, aid, or
reason is, became they have the sovereign and , receir, until, be that is appealed of the deed be
supreme authority in such cases. And accord- I attainted, so that one like law be used therein
ing to this resolution, the justices of the King's- ! through the realm: which is but an affirmance
bench wrote according to the said act to the | of the common law ; for there cannot be an
justices of gaol-delivery in London, before ] accessary unless there be a principal, no more
whom i he principal was,' &c. who certified the , than there can be a shadow unless there be a
record, &c. as appear* before at large. ; body. But this word Appeal has two significa-

3. It was moved, if the lord Sanchar could tions in law ; one general, and that is taken for
not in term-time be indicted, arnugued, and an accusation, generally, and u£CUsatio est Re-
convicted, at Newgate before commissioners plex, either by inquisition, i. e. by indictment,
of ( p) oyer and terminer for the county of and that is at the suit and in the name of the
Middles**, and it was resolved he could not ; king ; or by the party, and in his name, as in
for the King's-bcuch, as hath been said, is (q) \ appeal by writ or bill: or by appeal, i. e. acco-
morc than eyre, and therefore in (r) term-time sation of an approrer ; and therewith agree all
no commissioner of oyer and terminer, or gaol- ' our books, and Stanif. 1. 2. de Piac* cor* c. 51.
delivery, by the common law, can sit in the f. 142. b. where he saiih, after the confession
same count v where the King's-bcnch sirs ; ! of the crime, the felon may appeal, s. accost
for (s) in prasentia major is cf«*;/ potest* mi- • others coadjutors with him to do the felony:
Horn, and therewith agrees 27 Ass. p. 1. But ! and in this particular sense for accusation of the
Carliel and Irweng were indicted and attainted j pa it) it is otincr taken. And as there are two
in London, where the murder was committed, manner of accusations, so there are two manner
before justices of oyer and terminer in the (t) ■ of attainders of felony, s. by judgment ghren,
term-time, hecaese in another county than I s. oite at the king * suit, and the other at the
where the KingVbench sits. j suit of the party; and both these attainders

A. It was moved, if the lord Sanchar being t are in two manners, one after appearance, and
indicted in the king's-bench, if there mu»t be , the other upon default after appearance, two

(u) fifteen days for the return of the ze.J'a.
for if til teen days are requisite, he cannot be
arraigned this term. And it was resolved not,
because the orVcucc was committed in Middle-
sex, where the com t sits ; but if the indictment
had been taken in any other county, and re-
moved thither, there ought to be 15 days, &c.
and therewith agree the precedents, and the
continual usage of the same court.

5. It was resolved, that forasmuch as there
was not any direct proof, that James Irweng
was commanded or procured by the lord San-
char to commit the murder, but that he asso-
ciated himself to Robert Carliel who was pro-
cured by him, that the (v) be*t way is to in-
dict the lord Sanchar, as accessory to Robert
Carliel only: for indictments which "concern
the life of men ought to he framed as near the
truiii as may be, et to potius because they are
to be found by the oath of the grand inquest,
which finding is called (x) veridictum, quasi
didum rcritatis : and yet it was resolved, that

ways, s. either by rerwict or confession ; and
at the suit of tlie party, a third way, f. by
battle, upon default by process of outlawry,
where judgment is giren by the (a) coroner*,
or by those whom an act of parliament and
custom have enabled. And in the statute of
W. (b) 1. these words, upon appeal of com-
mandment, &c. are to be intended of an accu-
sation generally, s. by indictment, as by *rit
or bill, &r. and these words, until he that i>
appealed of the deed be attainted, are meant
or all manner of attainders, either at the
king's suit, or at the suit of the party, and
either upon appearance or upon default. And
afterwards in the same act, provision is made
for the appeal of the party, which implies that
the word appeal shall be taken in the general
sense.

6. U was resolved, that if the principal is (c)
erroneously attainted, either tor error in the
process, or because the principal being out of
the realm, &c. is outlawed, or that he was in

if one is indicted as accessory to (y) two, and ■ prison at the time of the outlawry, &c. yet the
he is found accessory to one, the verdict is accessory shall be attainted, for the attainder

good. Vide the statute of W. 1. c. (z) 14. by
which it is enacted, that none be outlawed

^— -^— — ^— — ^ ^ — —

(p) II. P. C. 156, 3 Inst. 27, 4 Inst. 73.

(q) Stanf. Cor. 35, a. 4 Inst. 73, Fitz. As-
sise 246, Br. Kscape 21, Br. Jurisdiction 66,
91, As*, pi. 1, Br. Judges, Justices, &c. 10,
Antea 1 13, a.

(r) 10 Co. 73. b. 3 Inst. 97.

(i) 10 Co. 73, b. 2 Inst. 26, 166.

CO Post. 121, a.

<* ) 8 lust. 550, 560, H. P. C. 157, Co. Lit.
134, b.

(9) 2 Inst. i«s. (t) Co. Lit. 226. a.
(Jf) « Inst. 183. II. P. Cf. «65.
(*J 2 Inst. 182, 138. 3 lost. 183.

against the principal stands till it is reverted;
and therewith agrees (d) n. R. 3, 12, the reso-
lution of all the justices in the KingVbeneh.
And in 18 E. 4, 9. b. the (e) principal was
erroneously outlawed for felony, ond the pc-
cessorf taken, indicted, arraigned, convicted,
attainted, and handed; and afterwards the
principal reversed the outlawry, and was in-
dicted and arraigned of the said felony, and
found not guilty, by which he was acquitted ;

(a ) 4 Co. 32. b. Co. Lit. 288. b. Cr. El. 50.
(b'j W. 1. c. 14, 2 In*t. 182, 183, 181.
(c) Ant. 68. a. b. 2 R. 3. 21. b.
fdf Ant. 68. b. 2R ■?, 21. b.
(tj Br. Cor. 165.

161] STATE TRIALS, 10 James I. IG12.— Lord Sanqmrc,far Murder. [762

and all this appears in the said book ; then it
will be demanded, that forasmuch as there
cannot be an accessory unless there is a prin-
cipal, and in case there is no principal, how the
heir of the accessory shall be restored to the
land which his father had forfeited by the said
onjnst attainder ? To that it is to be answered
that the heir may enter, or have his action ;
for now upon the matter by act in law, the at-
tainder against his father is witliout any writ
of error utterly annulled, for by the reversal of
the attainder against the principal, the at-
tainder against the accessory, which depends
upon the attainder of the principal, ipso facto
n utterly defeated and annulled ; and this no-
tably appears in an ancient book, in the time
of K. 1, tit. Mort-dauncest, 46. where the case
is, A was indicted of felony, and B. of the re-
ceipt of A. A. eloined himself (nnd is out-
lawed) : B. was taken, and put himself upon
inquest, and frund guilty, fur which B. was
attainted, and hanged, and the lord entered as
into his escheat ; and afterwards A. come, and
reversed the outlawry, and pleaded to the fe-
lony, and was found not guilty, by which he
was acquitted; whereupon the heir of B.
brought a (f) Mortdauncester against the lord
by escheat, who came and shewed all this mat-
ter, and there was a demur upon it; and it was
iwarded, that the heir of B. should recover

pened that Turner in playing struck out the
Damn's eye with his foil ; upon which die baron,
finding luutself impatient under so great an
affront, and not able to bear the loss of his eye
without having his revenge, resolved to procure
somebody to kill Turner ; and among his other
servants, he prevailed upon Gilbert Gray and
Robert Carliel, Scotchmen, two of his fol-
lowers, to shoot Turner upon the first oppor-
tunity that should offer. These two then un-
dertook to accomplish this design, and indus-
triously endeavoured to execute it; but the
ninth day of May last, Gray repenting of a pur*
pose and act so barbarous, vile and bloody,
fating touched with the motion of the Holy
Ghost, resolved to proceed no farther ; which
the baron of Sanchar being informed of, and
that Gray slackened in his promise, Robert
Carliel, as is aforesaid, undertook to execute
what he had promised : who, the eleventh of
May following, associating himself with James
Inveng a Scotchman, of the frontiers, about
•even o'clock in the evening came to a house
in the Friars, which Turner used to frequent as
be came from his school, which was near that
place ; and rinding Turner there, they saluted
one another; and Turner with one of his
friends sat at the door asking them to drink ;
but Carliel and Irweng turning about to cock
the pistol, came back immediately, and Carliel

seisen of the land ; for if B. was now alive, he drawing it from under his coat, discharged it

should go quit by the acquittal of A. because
he could not be receiver of a felon, when A. is
no felon ; and all this appears in the said book

upon Turner, and gave him a mortal wound
near the left pap ; so that Turner, after having
said these words, Lord have mercy upon me! I

Vide 4. £. 3, 36. b. in Dower 43 £. 3, 3. a. in am killed ; immediately fell down. Where-
Assise et Reides. 8 H. 4, 4. 11 H. 4, 4. 4 E. 4. upon Carliel and Irweng fled, Carliel to the
20. 6 E. 4, 9. 13 £. 4, 4. 9 II. 6, 38. b. 8 II. 7, ' town, and Irweng towards the river ; but mis-

10. et vide the case of sentence (g) of depri-
vation of one, and presentment, institution,
and induction of another; and after by relation
of a general pardon, ip§o facto, all are restored
without appeal, or new presentation, admission,
or institution, qd' vide (h) Dy. Nota reader, to
oust all quest, to what gaol offenders shall be
committed, it is enacted by the statute of (i)
6 H. 4, c. 10. that none shall be imprisoned by
any justice of the peace, but only in the com-
mon gaol, saving to lords and others, who have
£aob, their franchises in that case. By which
it appears, how justices of peace offend, who
commit felons, &c. to either of the Counters in
London, and other prisons, which are not com-
mon gaols.

But forasmuch as several persons have ear-
nestly desired to know the circumstance*, as
well of the proceeding, as of the fact itself, I
will comply with their request.

Robert Creighton, baron of Sunchar, a
Scotchman, about five years ago played at foils
with John Turner a fencing-master, and it hap-

(J) H. P. C: 270. 1 Hoi. 777.

(g) 6 Co. 13. b. 14. Co. Inst. 238. Hob. 82.
293. Cr. £1. 41. 789. Moor 132. Owen 87.
Latch. 92. 141. 1 Sid. 164, 168. Pulm. 412.

(k) Dy. 835. pi. 19. q Co. 13. b.

fij 2 Brown! 41. 2 lust. 43. Cor. £1. 830.

taking his way, and entering into a court where
they sold wood, which was no thorough-fare,
he was taken. Carliel likewise fled, and so
did also the baron of Sanchar. The ordinary
olttcers of justice did their utmost, but could
not take them : for in fact, as appeared after-
wards, Carliel fled into Scotland, and Gray to-
wards the sea, thinking to go to Sweden, and
Sanchar hid himself in Knglund.

The impediments of justice, difficulties of
law, and impossibilities of legal proceeding to
take Carliel, the principal, which were in this
case, are remarkable, and worthy of consider-
ation. The cure und remedy of the whole
ought to be only and wholly attributed to the
great c:irc of his most excellent majesty, and to
his perpetual love and zeal for justice, as will
clearly appear by what follows.

The impediments of justice were two : The
truth of this fact, touching the baron x>f San-
char, could not appear, because it consisted
only in the words of his mouth by incitation and
procurement ; hut l»y Gray and Carliel, who
*erc iUxl, or by himself; and he was likewise
gone. — 2. It w:is not as yet known whither
they were lied, and it could not be found out
by all the search, and diligence which was used
by the oflicers and magistrates of justice.

The dilhculties of law are raauifest by the
foregoing resolutions.

',&*] STATE TRIALS, 10 James I. ld\2.— Lord Sanq tare, for Murder. [764

Impossibilities of legal proceeding. — 1. It
was impossible by legal process to apprehend
the bod> of Carliel, being in Scotland. — It was
impossible alio to proceed against the baron of
Sanchar. who was but an accessory, before
the principal was attainted ; a thing which
would have required a \ery lung proceeding, if
he had not beeu taken. — Now therefore let us
behold here the love and zeal which his ma-
jesty always had for justice, who being informed
by some of lus principal judges, with whom
he had consulted touching the nature of this
present case, and finding if this fact should be
left to the ordinary proceeding of the law,
Carliel the assassin could not be taken, a»id
that no ordinary power had been able to find
Gray the witness, nor Sanchar the author ; lo !
the king by proclamation gives authority to any
person whatsoever to apprehend these three,
with a promise of great reward.

Upon this, the baron of Sanchar, well know-
ing that the principal assassin and the witness
were fled, surrendered himself, and denied that
he incited or procured the fact : wherefore his
majesty sent post to the sea-ports (the gates
of the kingdom), as also into Scotland, and
other places of his dominions, where his admir-
able prudence had hopes of rinding them ; and
the Lord so crowned his royal thoughts, and
gave such a blessing to his zeal for justice, that
some of his couriers took Gray at the port of
Harwich, ready to imbark for Sweden ; and
Carliel in Scotland, thinking to cross the sea
for his greater safety. Gnry then, being by his
majesty's command examined, confessed the
whole truth of the fact acainst the baron of
Sanchar, who likewise by his majesty's direction
being confronted vith Gray, and particularly
examined touching certain articles, special and
pertinent sayings by his majesty himself, con-
fessed by writing under his own hand, that he
had incited and procured this assassination ;
and being pressed thereupon by the questions,
he discovered a long and inveterate malice
which he had had, with all the occasions and
material circumstances of this murder.

His majesty having regard to that which the
Holy Ghost admonishes us of (' quia nan pro-
1 fertur cito contra malos sententia, absaue
' timore ullo filii homium perpetrans mala* (k)
gave orders two days after, that Carliel the prin-
cipal should be brought to London ; that he
and James Irweng, in full term, (a thing not
usual) might be carried before the justices at
Newgate, and attainted and convicted. And
•i few days after die baron of Sanchar was like-

(kj Ecclcsiast. 8. 11, Aatea 118. b.

wise attainted and convicted at the King's
Bench in full term ; and in a, start time after,
to accomplish his majesty's zeal for justice, the
baron Sanchar was (I) hanged publickly in
term-time at the palace of Westminster, ac-
cording to the judgment and sentence he had
before received.

I have reported this case with all the cir-
cumstances, because this example lias not its
parallel : for although it is true, that the late
queen Mary is very famous on account of the
examplary justice which she caused to be
executed upon baron Sturton, for the barba-
rous murder of Harquil ; yet this present ex-
ample of the baron ol Sanchar very much sur-
passes that of the baron of Sturton, and that
for many considerations. 1. Because tbe
baron of Sturton was taken by the ordinary
course of the law, even within the kingdom;
but the principal in this case could not be
taken by any common power, but by the mean*
of his majesty's royal and absolute power only.
2. The baron of Sturton's offence was very ap-
parent, and without any difficulty of law : on
the contrary, this of Sanchar was thereof (is
appears) very full ; but by his majesty's com-
mand, all these difficulties, with the conference
and grave consideration of his principal judges,
after search of cases precedent, were resolved
and cleared up, aud notwithstanding the impe-
diments, difficulties and impossibilities in legal
proceeding, greater expedition was used in this
case than in that. In short, the accomplish-
ment of the whole, the clearing .up the truth of
the fact in the case of the baron of Sanchar,
must be attributed to the great wisdom, power
and vigilance of his majesty, as appears by that
which has bt en thereof said before.

The baron of Sanchar was a man of a very
ancient and noble familv in Scotland ; he was
a man of great courage and wit, endowed with
many excellent gills, as well natural as ac-
quired. The eloquence of his discourse, with
the civility and discretion of his behaviour,
when he came before mid went from the judges,
compelled the people (who honoured him on
account of his moral virtues, and those for his
sake) to bewail lus full with great grief (although
the occasion of it was this base and barbarous
assassination, premeditated for rive years toge-
ther with a malice bloody and inveterate):
this extraordinary affection of the people was,
as he himself confessed, a very great consola-
tion to him in his last troubles and affliction!.
But at last their compassion abated, because
they perceived he died a true Catholick.

(I) 3 Inst. IS.

705] STATE TRIALS, 11 James I. 1 613. —Proceedings against James WhUdocL [7C6

93. Proceedings against Mr. James Whitelocke, in the Star-
Chamber, for a Contempt
11 James I. 1613.

of the King's Prerogative

[** Mr. Whitelocke, the subject of this Prosecu-
tion, is supposed to have been the same gentle-
man, as afterwards became sir James White-
locke, the judge of that name, and father of
Mr. Bo I strode Whitelocke, the famous writer
of the Memorial* . See the note in vol. 3, of
lord Bacon's Works, 4to ed. p. 471. He
Appears to have been prosecuted simply for
giving a private verbal Opinion as aburrister,
on a point of Prerogative, against the crown,
£)~Bir Robert Mansell; who, being Treasurer
of the Navy and Vice- Admiral, had consult-
ed Mr. Whitelocke, on the Reality of a com-
mission issued by king James for examining
into and reforming the Disorders and Abuses
of the Navy. I hid. At the same time, sir
Robert Mansell was himself charged, for
questioning the prerogative of the crovn, and
animating the lord-admiral against the com-
mission. I Lid. same page, and the note in p.
472. lie hearing was at \N hitehali before
the Lords of the Council, with the interven-
tion of lord chief justice Coke, lord chief
baron Tanlield, and the Master of the Rolls ;
the king's Attorney and Solicitor speaking
against Mr. Whitelocke, and Mr. Henry
Montagu, the king's Serjeant, against sir Ro-
bert Mansell. Ibid. Both humiliated them-
selves ; in consequence of winch they were
recommended to the crown as proper objects
of par don, and were accordingly enlarged on
the term* of subscribing ;t submission. Ibid.
& Reliq. Wotton, p. 42 1 . .'3rd rd. there cited.
The following Speech of lord Bacon, who
was at this time Attorncy-Oc-nerul, is the
only remnant we meet with of the piocecd-
>ugs in the Case, cxclusi\eof the circum-
stances before-mentioned. The Speech
seems imperfect, it ending abruptly. What
diere is of it, though not without passages
characteristic of lord Bacon's nervous elo-
quence and curiosity of argument, is in our
opniou i\\r from stating any thing like a just
pound of prosecution. In the present age
it uould be deemed a monstrous doctrine to
assert, that lawyers were not at liberty to
give Opinions to'their clients on questions of
prerogative. Little apology can be in:ul«..* for
Mich t doctrine even in lord Bacon's time ;
for it una ever lawful for the subject to con-
test questions of prerogntive in the kiirj;%
courts ; and if it was so, how could it be
conimrv to law to take the advice of council

acts of the crown on which a lawyer could
safely give an opinion. Particular delicacy
and caution certainly ought to be used, wheie
the prerogative of the crown is drawn into
question ; and it may be possible for a lawyer
to exercise the right of giving Opinions so
indecently and liccntiou.lv, as to render him-
self responsible criminally. But then the
crime arises from the abuse, not from the
want of the right. It may also be possible
to put a case so strong, as to be beyond the
line of a professional Opinion. Thus if a
private lawyer should be consulted, whether
the king had a right to the crown, who can
doubt that he would answer such a question
ni his peril? But the question, on which Mr.
Whitelocke gave his opinion, was not 'of this
kind, being on a commission from the crown,
the legality of which it was competent to the
subject to controvert, and consequently to
take legal advice about. On the whole, the
' true rule seems to be, that a ha rr inter may
give his opinion on every question, however
relative to the king op his prerogative, which
the subject may contest with the crown in a
court of justice; but that, in exercising this
light he must keep »o within the bound* of
an opinion, as not under the color of it to
obtrude either private or public scandal. In
respect to Mr. Whitelocke's particular case,
the subject of die Opinion he gave set ins
perfectly unexceptionable; nor could it he
an offence, that his Opinion was against the
extent of the prerogative, or that it was
erroneous. The only ground then, on which
he could be criminally responsible, was foi
some licentious and extraneous matter in-
troduced into tlie Opinion ; in respect to
which no judgment can now be decisively
• formed, as the words of the Opinion do not
appear ; though as far as a conjecture may
be made from lord Bs^.ri's manner ok' ob-
serving on the Opinion, it was equally inno-
cent both in subject and language." Ilar-
grave.]

Speech of the Attorney-General sir Francis
Bacon, from the 3d von. me of the List 4 to
edition of his Works, p. 17 1.

MY Lord* ; The offence wherewith Mr.
Whitelocke is charged, i,for as t) sm Robert
Mansell, I lake it to my parr only to be sorry
for his error) is a Contempt of a high nature,

on mic h subject?? Indeed lord Bacon pro- and resting upon two pairs : on the one, a prc-

skimr sumptuous and licentious ecu aire and defying

fe«se<» not to controvert the right of asking
aud tiding counsel in law. But then he
qualifies this right by a distinction ; for he
exempts and gives a privilege to high com-
missions of regimen and cases of state; a
detcriptiou so large and indelinite, that, if it
•boulrf be acquiesced in, it would leave few

of his maj city's prerogative in {.M-iieral; the
other, a slander and traducement of one act <>r
emanation h< -rent, containing a commission of
survey and leiormiti >n of abuses in the office
of the navy. — Th.s offence is lit to be opened
and set before your lordships, as it hath been

767] STATE TRIALS, UJayf.sI. 1613.— Proceedings against James WhUclockc. [766

well begun, both in the true state and in the
true weight of it. Tor as I desire, that the na-
ture of the offence may appear in its true co-
lours ; so, on the other side, I desire, that the
shadow of it may uot darkt-n or involve anv
rliin^ that is lawful, or agreeable with the just
and reasonable liliertv of the subject. — First,
wo must and do agree, tliat the asking and tak-
ing, and giving of counsel in lu»v is an essential
part of justice ; and to deny that, is to shut the
gate of justice, which in the Hebrews common-
wealth was therefore held in the gate, to shew
;ill passage to justice must be open : and cer-
tainly counsel in law is one of the passage*.
But yet, for all that, this liberty is not infinite
and without limits. If a jc-uited papist should
come, and a*k counsel (1 put a case n».i ::lto-
'^tlier fckm-d) whether all the not* of parlia-
ment made in the time of queen Kii/abcth and
king James arc void or no ; because there are
no lawful bishops sitting in the upper bouse,
and a parliament must consist of lords spiritual
a»d temporal and commons; and a lawyer
will >et it under his hand, that they he all \oid,
I will to'.uh him for high treason upon this his
i:i*:tii:»cl. $■», if a puritan preacher will ask
ioiin«t*l, whether he may stile the Ling de-
fender of the fa. th, because he receives not the
■.!■»..•: j:lme and presbytery ; and the lawyer will
\f\l i.:m, u i* no part of the kind's stile, it will
i;u hard wuii such a lawyer. — Or if a tribuni-
u.m< popular spirit will go and nek a lawyer,
w briber the oath ami band of allegiance be to
tie kingdom and crown only, and not to the
k:ni:. a? was llu^h Spenser's Case, and he deli-
« ci !:i$opi:Mui as lli><:u Spenser did : he will
'i ;ri Hugh Spenser's dancer. — So as the i»ri\i-
it:.v o! ^;\in^ c ui!i>il piiiVLti: aot :ill opinions :
.'•mi ;i< sjine upmi^iis ^iien are traitorous: <o
are there Other* oi a much inferior nature.
which are contemptuous. And ;uiiong tht?*. I
iccLun Mr. W hittievke's; to.- ;is 10? his loi-
alty and true lieart to the kirs, (iod forbid J
should d.»ubt it. — Tliercftrc U: no man mis-
take >o t\\rt ;in to eoictirc, ti*:.: any lawful and
dii«. hher!\ ^l tlv subject for asking counsel in
l.i w ;* cadc-.l in r,iie-ti m. wiion points of disioy-
aii\ or of ^ouuv.a-l are n»!:'.is:ied. Xav. we
*r it is jl.e ^r.ue :.: 1 f.u ar.rot* ti.e kin.: a*.d
bis courtt, th.it if she e.i»e lie :-. -o'er. av.d a w .-t-
law ver in mo !*•»! \ and d.s"i.:.>>n refu-eih to
be of co unci, for vou i;..t\ L.ucri sop.*.*.:: Tie*
loo Dice as w«.-:i astoj boh:, the v are ir.rn r-.:ied
and assigned t » be of" ci»*.nc:i. Kcr cerruinly
counsel is the tl.nd nwn'> £*.i:.ic: and sorry I
am with all my heart, tha: n :h> jasv the li:nd

did lead the blind. — For the offence, for which
Mr. Whiteloekc is charged, I hold it great, and
to have, as J said at first, two parts ; the one a
censure, and, as much ;is in him is, a circling,
nay a clipping, of the king's prerogative in ge-
neral : the other, a slander and depravation of
the king's power and honour in this commis-
sion.— And for the first of these, I consider it
again in three degrees : first, tiiat he presumed
to (ensure the kings prerogative at all. Se- /
coiully, that he runneth into the generality of
it more than was pertinent to the present ques-
tion. And lastly, that he hath erroneously
and falsely, mid dangerously given opinion in
dt rogation of it. Li rat, 1 make a great diffe-
rence between the king's grants ami ordinary
omissions of justice, and the king's high com-
missions of regiment, or mixed with causes of
state. For the former, there is no doubt but
they may he freely questioned and disputed,
ami nny defect in matter or form stood upon,
though the king be many times the adverse
party. Rut for the latter sort, they are rather
to be dealt with, if at all, by a modest, and
humble intimation or remonstrance to his ma-
jesty, and his council, than bv bra\erv of dis-
pute or peremptory opposition.

Of this kind is that properly to be under-
stood, which is said in Brae ton, * de chartis et
* factis regiis non debent, ant possunt, justitia-
' rii aut privatum persona: disputare ; sed tutius
' est, ut expectetur sen tenia regis.' — And the
kind's courts themselves have been exceeding
tender and sparing in it ; so that there is in all
our law, not three ca«cs of it. And in tliat
very case of »l J-'d. 3. As*, pi. s. which Mr.
\\ h teiocke \oucbed, whereas it was a i^m-
I ruisv.on to arrest a man, and to carry r.i:n to
1 prison, and to seize his g<>ods without any form
i of justice or examination preceding : :n;d tint
J the judges saw it was obtained by sti: .-option :
i vet tne judges said thev would keep it i v there,
aa! thi-w it to the kin^s council. — But Jlr.
\\'h;te!orke d.d not ad\ isehis client to acquain:
tiie kiiij:'« councd with !!, I tit pns"..TiptuousS
giveth opinion, that it is \o;d. Nay, not m
much as a il.iUse or pav^age of modesty, ft-'
that he submits his npi:v.on t * censure : that ."
is tiH» great a matter : t L:t. t > dr?.il in ; ■"
ih:s is mv o:union. wl :cb ;s ■■* .. ^;c. i> *
i/.'e .* *"i. ":'«i-«, he ta-ki-s ;: . * ■ . - :-.;::iiis, ^:-
pr^nour.ce:h of :. :> - ir.nr. ■.. -,.\.\ sc;".*ft*!y .: »
of a w.irri-.r: ::;"a ••„?:•. :" : . ■>. . •• siuik-
i.'ke a .::cta:.-r. ■••.-■■ • ;...? .s ...y ." -■. : • t;i > s

r«]

STATE TRIALS, -10 Jane* I. 1 6 1 2.— Cawuess qTSftremsbwy.

[770

94. Proceedings against Mary Countess of Shrewsbury, before a
Select Council, for a Contempt, in refusing to answer fully be-
fore the Privy Council, or to subscribe her Examination. Trin.
10 James I. a.d. 1612. [Coke's Report, p. 94.]

[" The occasion of examining lady Shrewsbury
before the Privy Council, was her conduct
in respect to the marriage of lady Stuart.
This Utter lady was first-cousin to J nine* 1.;
for she was the. daughter of Charles earl of
Lenox, the younger brother of James's father
lord Darnley. Her mother was Elizabeth
daughter of sir William Cavendish. The
countess of Shrewsbury was aunt to lady
Arabella, being bister to her mother. A
marriage took, place between lady Arabella
and sir William Seymour, who at the Resto-
ration recovered the dukedom of Somerset

. for his family. Being a marriage with one
to nearly related in blood to the king, and
without I j is consent, it was deemed an otfence
against the royal prerogative,* on which ac-
count ludy Arabella and her husband wer.e
imprisoned; the former in a private house at
Lambeth, the latter in the Tower. But both
escaped from their confinement with a view
to retire abroad; and the countess of Shrews-
bury was taken into custody as privy and
accessary to tthe escape of lady Arabella. On
being examined by die privy-council, the
couutess refused to discover what she knew
of the affair of the Marriage and Escape, or
to subscribe her Examination; and for this
refusal she was brought befure a select coun-
cil, whose proceedings on the occasiou are
the subject of the following Case. What we
shall first lay before the reader is lord Coke's
Account of the Case, from his 12th Report.
Lord Bacon's Speech, which is next given,
was first printed in the Cabala, but is here
taken from the last edition of his Works,
vol. 3, p. 265. For further particulars, re-
lative to the Marriage of lady Arabella
Stuart, and the Vt oceediugs against her, sir
William Seymour her husband, and lady
Shrewsbary, the curious reader may consult
Wiowood's Memorials of State, vol. iii. p.
117. 119. 201. '279. 280. 281. 451." Ilar-
grave.]

Trin. 10 Juc. 1.

IN tins term, before a select council at York-
house; fit. the lord chancellor, the archbishop,
the duke of I^nox, the earl of Northampton,
lord privy seal, the earl of Suffolk, lord cham-
berlain, the earl of Worcester, the earl of Pem-
broke, viscount Erskin, viscount Rochtord, the
lord Zouch, the lord Knolls, the lord Wootton,

* With respect to the royal prerogative con-
cerning the education and marriage of persons
of tho royal family, see the opinions of the
judges, a. D. 1717, intra. & st. 12 G. 3, c. 11,
and the debates thereon iu Cobb. Pari. Hist.

VOL. U.

the chancellor of the exchequer, the chancellor
of the duchy, Fleming chief justice of the king's
Bench, Philips master of the rolls, Coke C. J.
of the Common Pleas, andTanfield chief baron.
The countess of Shrewsbury (the wife of Gilbert
earl of Shrewsbury) then prisoner in the Tower,
was brought before the said lords, and by the
attorney and solicitor of the king was charged
'with a fiigh and great contempt of * dangerous
consequence ; for they declared that the lady
Arabella, being of the blood royal, had married

Seymour, second son of the earl of ,

Hertford, without privity or assent of the king,
for which coutemi.it the said Seymour was com-
mitted to the Totter, and had escaped and fled
beyond the seas ; the lady Arabella being un-
der restraint escaped also, and embarked her-
self upon the sea, and was taken before she got
over; of which flight of the said lady Arabella,
the said countess, being her aunt, very well
knew and abetted, as is directly proved by
C romp ton, and not denied by tiie lady Arabel-
la; and admit it, that the lady Arabella had no
evil intent against the king (who had always a
great and special care of her, and was very
bountiful unto her, uutil her marriage with the '
said Seymour, which was the jamum vetitum :)
yet when she tied, and when she should be
environed with evil spirits, cum pervcrsts per-
vert i possit, and when she shall be iir another
sphere, she will not move within the s'ime orb.

And the lords of the Privy Council, knowing
the arcana imperii, did shew divers perilous
consequences, and the rather for this, that the
said countess is uu obstinate popish recusant,
and as was said, perverted also the lady Ara-
bella. Now the Charge was in two points.

1. That the said countess of Shrewsbury, by
commandment of the king, being called to the
council table, before the lords of the council at
White-hall, and there being require! by the
lords to declara her knowledge touching the
said points, and to discover what she knew con-
cerning them, for the safety of the king, and
quiet of the realm ; she answered, that she
would not make any particular answer; and
being again asked by the kind's command by
the council at Lambeth, and being el^r^ed
attain to answer to the said point, she refused
lor two causes. 1. For (hat she had made a
rash vow that s>he would not det hire any tiling
in particular touching the said points; and for
that (as *he said) it was better to obey God than
man. 2. S:ie stood upon her privilege of no-

* Of contempts. See 1 Hawk. ch. 21. per
tot. ch. 22. tect. 2, 3. 4, ch. 2S, sect. 1, 2, ."»,
etc. ch. 24, sect, i, 3, 4. 2 ILuvk. ch. 10,
sect. 15, 17, 19.

3 D

771] STATE TRIALS, 10 James I. 1612.— Proceedings against the Countess [772

bility, f«7. to answer only when she was called , oath 12 Co. 26, 27.] upon their oaths, (a) and
judicially before her peers ; tor that such pnvi- may be examined in the Star Chamber upon
lege was allowed (as she said) to William earl interrogatories upon their oaths : and if one
of Pembroke, and to the lord Lumley. \ who is noble be produced as a witness between

2. The second point of her charge was, that J —

when such nnswer which she had made was put I (n ) " But in 1623, the house of lords came
in writing, and rend to her, yet she refused to ! to a Itesolutiou, declaring it to be the antient
subscribe to it. Which denial to discover and \ right of the nobility of this kingdom and the
discharge her conscience in a case which j lords of the upper house of parliament, to an-

nobility hath not any such privilege as to alleged,
nor any such allowance as was supposed ; and'
that rash and illegal vows make not an excuse,
and that this precedent being now upon the

stage, was of very dangerous consequence : and was founded on an unanimous opinion of the
the said countess hearing the charge, yet per-
sisted in her obstinate refusal, for the same rea-
sons and causes upon which she had insisted
before: and the lord chancellor began, and the
archbishop, and all the other lords began with
the first, and adjudged it a great and high con-
tempt, and the lord chancellor said, that that
was against the law of England, with which all
the lords agreed. — And that no such allowance
was given to the said earl of Pembroke, or to
the lord Lumley in respect of their privilege of
nobility, but that they were voces populi, et ideo
non audienda : and the lord archbishop prin-
cipally proved, that as well the contempt, us
the said rush vow was against the law of God,
which he and the earl ot Northampton princi-
pally proved by ditcrs texts and examples in
holy scripture. And the etfect of all that which
the three justices said, was, that after the sen-
tences of all the learned, prudent, and honour-
able personages aird counsellors of estate, they
might well be silent ; but in regard that $Uen-
tium in senatu est vitium, they would speak
something briefly, viz.

That thiee things in this case are to he well
considered. 1. Whether the refusals aforesaid
of the said countess were offences in law against
the king, his crown and dignity. 2. What man-
ner of proceeding this is, and whether it was
justifiable by precedent or reason. 3. What is
the demerit of the offences, and how punish-
able.

As to the first, it was resolved by the justices
and master of the rolls, that tl** denying to be
examined was a high and great contempt in

quence of an order, made about two years be-
fore by the Star Chamber against the earl of
Lincoln, to answer a bill on oath ; though this
order had passed after great deliberation, and

lords of the privy council, and of all the judges
except Doderridge who was absent. See the
earl of Lincoln's Case, W. Jo. 152. Hurt. 87.
Cro. Cha. 64. In 1640, the lords renewed the
declaration of this privilege in answering as de-
fendants without oath, with an explanation,
that it extended to all answers and examina-
tions on interrogatories, in all causes as well
criminal as civil, and in all courts and commis-
sions, and also to the widows and dowagers of
temporal peers. Journ. Dora. Proc. 31 Dec.
1640. The present practice of our courts of
equity conforms to this order of the lords."
Hargrave. -

A Peer, sitting in judgment, gives not his
verdict upon oath, like an ordinary jury-
man, but, upon his honour. 2 Inst. 49. — He
answers also to Dills in Chancery upon his
honour and not upon his oath; 1 P. W. 146 ;
but when he is examined as a witness either
in civil or criminal cases, he must be sworn,
(whether in inferior courts, or in the high court
of parliament) for the respect which the law
shows to the honour of a peer does not extend
so far as to overturn a settled maxim, that
' in judicio non creditur * nisi juratis.' Salk.
512. Cro. Car. 64. — In many cases, the pro-
testation of honour *hall be sufficient for a
peer; as in trial of peers, they proceed upon
their honour, (though formerly it was to be on
oath) , and in action ot* debt upon uccount the
plaintiff being a peer, it shall suffice to examine
his attorney, and not himself upon oath; but
where a peer is to answer interrogatories, or
make an affidavit, as well as where he is to be

law, against the king, his crown and dignity ; i examined a* a witness, he must be upon his
and that if it should he permitted, it would be ; oath. Rract. lib. 5. c. 9. 4 Rep. 49. 3 Inst,
an occasion of many high and dangerous design's i 29. W.Jones I.V>. 2 »S«lk. .r»12. — Sir Thomas
against the king and the realm, which cannot , Meers contr.i lord Stonrton, in Cane*. Sir
be discovered : and upon hope of impunity it ! Thomas .Meers exhibited a Rill against the
will be an encouragement to offenders, as \:\#- '• lord Stonrton, and it was ordered, that tl»e
ming justice said, to enterprise dangerous at- . lord Stourton should be examined u|khi in-
tempts. I terrogatoncs touching his title; and it was ob-

Anci the Master of the Rolls said, that it was ' jected, That he being a peer of the realm,
not any privilege of nobility, to refuse to bo ex- , ounht to answer upon his honour only; and
ainined in this case, no more than of auy sub- , it was ruled by llarcourr, J,ord Keeper, that
ject. j where a peer is to answer to a Bill, bis An-

Also, if one that is noble, and a peer of the swer put in upon his honour is sufficient; but
realm, be sued in the Star Chamber, or in Chan- : where a peer is to answer interrogatories, to
eery, they ought to autwer [Quare the sjt officio ' uiuko an affidavit, or be examined as a wit*

773] STATE TRIALS, 10 James I I(il2.— of Shrewsbury , for Contempt. [774

party and party, he ought to be sworn, or other-
wise his testimony is of no value ; and so is the
common experience in the said courts : and the
chief justice said, that forasmuch as where or-
der is neglected, confusion will follow, he would
recite some of the honourable privileges which
the law of England (more than any other law)
attribute to the nobility of England in legal pro-
ceedings; and they will not be impertinent,
bat give a great light to the case now in
hand.

(1.) If a baron, viscount, earl, or other lord
of parliament and peer of tl;e realm be plain-
tiff in any action, and the defendant will plead
tfeat the plaintiff is not a baron, viscount, earl,
&c. as he is named in the writ, this shall not
be tried at the common law by jury, who may
be corrupted, nor by witnesses, as in the Star
Chamber, or Chancery, who may be suborned;
but it shall be tried by (he record in Chancery,
which imports by itself solid truth; so great re-
gard hath the law to the trial of their honour
and dignity, &c.

(2.) Their persons have many honourable pri-
vileges in law. 1. At the suit of a subject
their bodies shall not be arrested, neither capias
nor exigent lieth against them. 2. For the
honour and reverence which the law gives to
nobility, their bodies are not subject to torture
in causa criminis lasa^majestatis. (a). 3. They
are not to be sworn in assizes, juries, or other
inquests. 4. If any servant of the king, named
■ » ■ ■ ' ■ ■

ness, be must be upon his oath. — In the pleas
of parliament, 18 Edw. 1, between the earl
of Gloucester and earl of Hereford, on long
debate whether John de Hutting, a baron, ought
to be sworn, because he was a peer of the
realm, it was resolved that he ought to lav his
hand on the book. The like was resolved,
10 Car. in U. R. by the court, where the lord
Dorset's testimony was requisite. See Dy. 314.
b. marg. pi. 98. See also 1 Cob)). Pari. Hist.
1202. — A bill was against a Peeress todisco\cr
deeds ; she answers on her 'honour and con-
fesses deeds. She shall produce them only
upon her honour, and not on oath. Ch. Prec.
92. Jacob's Law Diet. Title, Peers. — In a case
(lie earl of Shaftsburv against lord Digby, re-
ported in 2 Mod. 98. Trin. T. 28 Car. 2.
When this cause was tried at the bar, which
was in Faster Term last, the lord Mohun of-
fered to give his testimony fur the plaintiff, but
refused to be sworn, offering to speak upon his
honour. But Wylde, Justice, told him, in causes
between party and party he must be upon his
oath. The lord Mbtmn asked him, whether he
would answer it. The judge replied, that he
delivered it as his opinion. And because he
koew not whether it might cause him to be
questioned in another place, he desired the
rest of the judges to deliver their opinions,
which they all did, and said be ought to be
sworn. And so he was, but with a salvo jure;
for he said there was an order in the house
of Peers, * that it is * against the privilege of
the bouse for any ' lord to be sworn.'

in the cheque roll, compass or intend to kill any
lord of parliament, or other lord of the king's
council, this is felony. 5. In the Common
Picas, a lord of parliament shall have knights
returned on his jury. 0. lie shall have day of
grace. 7. A lord of parliament shall not be
tried in case of treason, felony, or misprision of
them, but by those who are noble and peers of
the realm. 8. In trial of a peer, the lords of
parliament shall not swear, but they give their
judgment super fidem et ligcantiam domino regi
debitam, so that their faith and allegiance stands
in equipoise with an oath in the case of a com-
mon person in trial of life : and the writs of
parliament, directed to the lords of parliament,
are sub fide et ligeantia, &c.

And the reason and cause, that tlie kins gives
them many other privileges, is for this, because
ail honour and nobility is derived from the king
as the true fountain: and the king honours with
nobility, for two causes. 1. Ad consulendum,
and for that reason he gives them a robe. 2.
Ad defendendum regem ct regnum, and for that
cause he gives them a sword.— And forasnnrch
as they derive tluir dignities, accompanied with
all those honourable privileges, from tlie king,
to deny to answer, being required thereto by*
the king, to such points as concern tlie safety
of the king and quiet of the realm, is a high con-
tempt and disobedience, accompanied with
great ingratitude.

This denial is * contra ligcantiam sunm

fa) " It is surprising, that doctrine so re-
flecting on the law of Kngland should escape
from one of lord Coke's character. His lan-
guage as attorney general at the Trials of the
earls of Essex and Southampton implies the
same obnoxious tenet. Hut in his third Insti-
tute he gives it as his opinion mo^t decisively,
that all Tortures of arcuscd persons are con-
trary to our law ; aiul to prove it cites lord
chancellor Fortescue's famous book * De laudi-
' bus legum Angliae,' where he argues for a pre-
ference of our law to the civil law from the lat-
ter's allowance of torture. 3 Inst. 35. In the
case of Felton, for the murder of the duke of
Buckingham, the judges were unanimous, that
Felton could not be tortured by the rack ; for
' no such punishment/ said they, ' is known or
' allowed by our law.' 1 Rush. 638. 639. As
to the instances of Torture collected by a most
respectable writer of the present time, they only
prove nn irregularity of practice. Barrington
Ant. Stat. 4th ed. 33. 88. 395. If torture was
lawful, we should And rules to direct its applica-
tion." Margrave.

The u«*e of Torture appears to have been
continued in Scotland until the Revolution, at
which time it was complained against with other
grievances. See 2 M'Dowa'l's Iustit. of the
Laws of Scotland 600. The use of torture in
Scotland is uholished by " An act for improv-
ing the two kingdoms/' Stat. 7 Anne, c. 21,
§ 5. Concerning the use of Torture among the
Romans see fit. ff. de QusstionibuiV- Ste vol.
1, p. 505, note (c),

775] STATE TRIALS, 10 James I. 1GI2. — Countess of Shrewsbury.

[776

' debitam/ against the faith ami allegiance
of a person noble, due to the king, and
which the law greatly esteems. And that this
denying is against her faith and allegiance
appears by the ancient oath of allegiance,
which is imprinted in the heart of every sub-
ject, ' bcil. ero verus et ridelis, et ventatem
4 pra.>stabo domino regi de vitit et niemhro, et

* de terreno honore, ad vivendiimetmorienduin
' contra onines genus, &c. Et si cognoscam

* aut audiam de aliquo riamno nut inalo quod

* domino regi evenire potent, quod non reve-
' Into,' &C. And this oath of allegiance is
common to all subjects, as well those of the
nobility as commonalty. But the law hath
greater account of the faith and allegiance of a
nobleman, than of one of the common*, for this,
that the breach of their allegiance is more dan-
gerous to the king and estate, for ' corrupt io

* optimorurn est pessima ;' and for this reason,
the countess by her aliegiancewns bound, with-
out being demanded, to reveal to the king what
she knows concerning the premises, upon which
gncat mischief in>iy happen to the king and the
realm. But being commanded by the king to
declare her knowledge, the denying of it doth
greatly aggravate the oifence. * Qui contemnit

* praceptum, contemnit prrecipieutem.' Com-
mand and obedience are the ligament of go-
vernment, and * ligcMntiaest legis essentia;' fur
without allegiance and obedience, the law can-
not proceed.

As to the second point, viz. concerning the
manner of this proceeding. 1. Privative, it is
not to fine and imprison, or indict corporal
punishment upon the countess ; for fine and
imprisonment ought to be assessed in some
court judicially * 2. Positive, the fine is ' ad
4 monendum,' or at the most* ad minandum ;'
it is ' ad instruendum non nd destiaicndum.'

This selected council is to express what pu-
nishment this offence justly deserved, if it be
judicially proceeded within the Star-Chamber;
for which reason this manner of proceeding is
out of the mercy and grace of the king against
this honourable lady, that she seeing her
oil'eoce nisiy submit herself to the king, without
any punishment in nny court judicially.

If Sentence shall be given in the JSiar-Cham-
ber according to justice, vou the lords shall be
agents in it : but in this manner according to
the merry of the kin;;, the king is only agent ;
the 1 iw h ith put rule* and limits to the notice
of the king, but not unto his mercy, that is
tiansceiidnnt and without any limits of the law;
1 it iileo procerus iste t>t regalis plane ctrege
* dignus.'

Also inasmuch ns t];c allegiance and obedi-
ence of the subject, i-» the best dower in his
n. iperiul garland, to the intent, thai it may nei-
tlu r be blasted, nor impaired by this dangerous
example, to the prejudice 01 his royal prcrogu-
livc and posterity*, this proceeding hath been
thought necessary : and this is fortified by the

* Vide the carl of Kfsex's case, 42 & 43
F.li7^«L

precedent of the earl of Essex, against whom
such proceedings were in this very place, anno
42 and *3 Eliz. rcg.

And as to the last point it was resolved by
all quasi una voce, tluit if a sentence should be
given in the Star-Chamber judicially, ahe should
be lined '20,000/. and imprisoned during the
king's pleasure. Vide 12 Co. 09, ccc.
' Hoc in terrorem,sed quaere quidinde venit?'

SrEr.cn of sir Franc it. Bacon," from vol. iii. of
his Works,* 4.to edit. p. 265.

Your brdihipsdo observe tlie nature of tlii*
Charge : my lady of Shrewsbury, a lady wise,
and that ought to know what duty requireth,
is charged to have refused, and to have per-
sisted in refusal to answer, and to be examined
in a high cause of state, being examined by
the council- table, which is a representative
body of the king. The nature of the cause,
upon which she was examined, is an essential
point, which doth aggravate and increase this
Contempt and presumption ; and therefore of
necessity with that we must begin. How gra-
ciously and parent-like his majesty used the
lady Arabella before she gave him cause of in-
dignation, the world knoweth. My lady not-
withstanding, extremely ill-advised, transacted
the most weighty and binding part and action
of her life, which is her marriage, without ac*
quainting his majesty ; which had been a neg-
lect even to a mean parent ; but being to our
sovereign, and she standing so near to his ma-
jesty as she doth, and then choosing such a con-
dition as it pleased her to choose, all parties
laid together, how dangerous it was, my lady
might have read it in the fortune of that house
wherewith she is matched ; for it was not un-
like the case of Mr. Seymour's grandmother.
— The king nevertheless so remembered he was
a king, as he forgot not he was a kinsman, and
placed her only ' sub libera custodia.' But
now did my lady accumulate and heap up this
oifence with a tar greater than the former, by
seeking to withdraw herself out of the king's
power into foreign parts.

That this flight or escape into foreign parts
might have been seed of trouble to this state,
is a matter whereof the conceit of u vulgar
person is not uncapable. For although my
lady should have put on a mind to continue her
loyalty* as nature and duty did bind her ; yet
when she was in another sphere, she must have
moved in the motion of that orb, and not of
the planet itself: and God forbid the king's
felicity should be so little, as he should not
have envy and enviers enough in foreign parts.
It is true, if any foreigner had wrought upon
this occasion, I do not doubt but the intent
would have been, as the prophet saith, ' they
have conceived mischief, and brought forth a
vain thing.' But yet your lordships know

* In addition to the particulars collected by
Mr. Barrington, sec 3 Hail. Misc. 124, ISO,
182, 537, and Birch's edition of Bacon's works,
vol. 3, p. 259, 478.

m]

STATE TRIALS, 11 James I. m$.—Case of William Talbot.

[773

that it is wisdom in princes, and it is a watch
they owe to themselves and to their people, to
stop the beginnings of evils, and not to despise
them. Seneca sakh well, ' non jam amplios
4 leria sunt perioula, si levia videantur ;' dan-
gers cease to be light, because by despising they
grow and gather strength.

And accordingly bath been the practice both
of die wisest and stoutest princes to bold for
matter pregnant of peril, to have any near them
in blood to fly into foreign parts. Wherein I
will not wander ; but take the example of king
Henry the seventh, a prince not unfit to be pa-
ralleled with his majesty. I mean not the
particular of Perk in Warbeck, for he was but
an idol or a disguise ; but the example I mean,
is that of the earl of Sotfblk, whom the king
extorted from Philip of Austria. The story
is memorable, that Philip, after the death of
Isabella, coming to take possession^ of his king-
dom of Castile, which was but matrimonial to
his father-in-law Ferdinando of Aragon, was
cast by weather upon the coast of Weymoutb,
where tlte Italian story saith, king Henry used
htm in all tilings else as a prince, but in one
thing as a prisoner ; for he forced upon him. a
promise to restore the earl of Suftbtk that was
fled into rianders. And yet this I note was in
the 91st year of his reign, when the king had a
goodly prince at man's estate, besides his
daughters, nay, and the whole line of Clarence
nearer in title ; for that earl of Suffolk was de-
scended of a sister of Edward the fourth. So
far off did that king take his aim. To this ac-
tion of so deep consequence, it appeared*, you,
my lady of Shrewsbury, were privy, not upon
foreign suspicions or strained inferences, but
upon vehement presumptions, now clear and
particular testimony, as hnth been opened to
yoa ; so as the king had not only reason to ex-
amine you upon it, but to have proceeded with
you upon it as for a great contempt ; which if
it be reserved for the present, your ladyship
is to ■nderstaiid it aright, tliat it is not defect
of proof, but abundance of grace that is tlie
cause of this proceeding ; and your ladyship
shall do well to tee into what danger you have
brought yourself. All offences consist of the

fact which is open, and the intent which is
secret. This fact of conspiring in the flight ot
this lady may bear a hard and gentler con-
struction; if upon overmuch affection to your
kinswoman, gentler ; if upon practice or otiter
end, harder. You must take heed how you
enter into such actions ; whereof if the hidden
part be drawn unto that which is open, it may
be your overthrow ; which I speak riot by way
of charge, but by way of caution.

For that which you are properly charged
with, you must know that all subjects, without
distinction of degrees, owe to the king tribute
and sen ice, not only of their deed and band,
but of their knowledge and discovery. If there
be any thing that imports the king's service,
they ought themselves underaanded to impart
it ; mucb more if they be called and examined,
whether it be of their own fact or of another's,
they ought to make direct answer. Neither
was there ever any subject brought in causes of
estate to trial judicial, but first he passed exa
initiation ; for examination is the entrance of
justice in criminal causes; it is one of the eyes
of the king's politic body ; there are but two,
information and examination ; it may not be
endured that one of the lights be put out by
your example.

Your excuses are not worthy your own judg-
ment; rash- vows of lawful things are to be
kept, but unlawful vows not ; your own divines
will tell you so. For your examples, thev are
some erroneous traditions. My lord of tetii-
broke spoke somewhat that he was unlettered,
and it was but when he was examined by one
private counsellor, to whom he took exception.
That of my lord Lnmley is n fiction ; the pre-
eminences of nobility I would hold with to the
last grain ;. but every day's experience is to
the contrary. Nay, you may learn duty of
lady Arabella herself, a lady of the blood, of
an higher rank than yourself, who declining,
and yet that but by request neither, to declare
of your fact, yieldeth ingenuously to be exa-
mined of her owri. I do not doubt but by this
time you see both your own error, and the
king's grace in proceeding with you in this
manner.

95. Case of Mr. William Talbot, Hilary-Tern^ on an Informa-
tion ore tenusy for maintaining a Power in the Pope to depose
and kiirKTugs : 11 James I. a.d. 1613.

[a In lord Bacon's Works there is a Speech by
him as Attorney-General and prosecutor in
tltis Case. 2 Bac last 4to ed. 577. Accord-
ing to the title of the Speech, the cause of

the prosecution appears to have been this.
Mr. Talbot, who was a counsellor at law of
Ireland, being asked, whether the doctrine
of Snarez in respect to the deposing and kill-
ing of kings excommunicated was true or
not, answered, that he submitted bis opinion
to the judgment of the Roman Catholic
church. This answer be subscribed, and we

presume, that it was gircn on being examin-
ed before the Privy-Council ; though that
circumstance is not expressly stated oy lord
Bacon. What the Judgment of the Star-
Chamber was, we do not find noticed.*'
Hargrave.]

Spef.cii of Sir Francis Bacon, Attorney-Gene-
ral, the last day of Hilary-Term, 11 Jam. 1.

MY Lords ; I brought before you the first
sitting of this term the cause of Dueb. But
now this last sitting I shall bring before you

779]

STATE TRIALS, 1 1 James I. 161 3— Case of William Talbot.

[790

a cause concerning the greatest Duel which
is in the Christian world, the duel and conflict
between the lawful authority of sovereign kings,
which b God's ordinance for the comfort of
human society, and the swelling pride and
usurpation of the see of Rome in temporalibtix,
tending altogether to anarchy and confusion.
Wherein if this pretence in the pope of Rome,
by cartels to make sovereign princes as the ban-
ditti, and to proscribe their lives, and to expose
their kingdoms to prey ; if these pretences, I
say, and all persons that submit themselves to
that part of the pope's power in the lea»t
degree, be not by all possible severity repressed
and punished, the state of Christian kings will
be no other than the ancient torment described
by the poets in the hell of the heathen ; a man
sitting richly robed, solemnly attended, delici-
ous fare, &c. with a sword hanging over his
head, hanging by a small thread, ready every
moment to be cut down by an accursing and
accursed hand. Surely I had thought they had
been the prerogatives of God alone, and of his
secret judgments: ' solvatn cingula return, I
will loosen the girdles of kings ;' or again, ' he
poureth contempt upon princes;1 or, ' I will
give a king in ray wrath and take him away
again in my displeasure:' and the like. But if
these be the claims of a mortal man, certainly
they are but the mysteries of that person, which
' exalts himself above all that is called God,'
' supra omne quod dicitur Deus.' Note It well,
not above God, though that in a sense be true,
but ' above all that is called God;' that is,
lawful kings and magistrates.

But, my lords, in this duel I find this Talbot,
that is now before you, but a coward ; for he
hath given ground, he hath gone backward and
forward ; but in such a fashion, and with such
interchange of repenting and relapsing, as I
cannot tell whether it doth extenuate or ag-
gravate his offence. If he shall more publicly
iii the face of the court fall and settle upon a
right mind, I shall be glad of it; and he that
would be against the king's mercy, I would he
might need the king's mercy: but nevertheless
the court will proceed by rules of justice. The
offence, therefore, wherewith I charge this
Talbot, prisoner at the bar, is this in brief and
in effect : that he hath maintained and main-
tained! under his hand a power in the pope for
the deposing and murdering of kings. In what
sort he doth tins, when I come to the proper
and particular charge, I will deliver it in his
own words without pressing or straining.

But before I come to the particular charge
of this man, I cannot proceed so coldly ; but I
must express unto your lordships the extreme
and imminent danger wherein our dear and
dread sovereign is, and in him we all, nay, all
princes of both religions, for it is a common
cause, do stand at this day, by the spreading
and inforcing of this furious and pernicious
opinion of the pope's temporal power; which
though the modest sort would blanch with the
distinction of in ordine ad spiritualia, yet that
\i bat an illusion ; for he that maketh the dis-

tinction, will also make the case. This peril,
though it be in itself notorious, yet because
there is a kind of dullness, aqd almost a lethargy
in this age, give me leave to set before you two
glasses, such as certainly the like never met in
one age ; the glass of France and the glass of
England. In that of France the tragedies acted
and executed in two immediate kings; in the
glass of England, the same, or more horrible,
attempted likewise in a queen and king im-
mediate, but ending in a happy deliverance.

In France, Henry 3, in the face of his army,
before the walls of Paris, stabbed by a wretched
Jacobine frier. Henry 4, a prince that the
French do surname the Great, one that had
been a saviour and redeemer of his country
from infinite calamities, and a restorer of that
monarchy to the ancient state and splendor, and
a prince almost heroical, except it be in the
point of revolt from religion, at a time when he
was as it were to mount on horseback for the
commanding of the greatest forces thnt of long
time had been levied in France, tliis king like-
wise stillettoed by a rascal votary, which had
been enchanted and conjured for die purpose.

In England, queeo Elizabeth, of blessed
memory, a queen comparable and to be ranked
with the greatest kings, oftentimes attempted
by like votaries, Somerville, Parry, Savage, and
others, but still protected by the Watchman that
sluinbereth not. Again, our excellent sovereign
king James, the sweetness and clemency of
whose nature were enough to quench and mor-
tify ail malignity, and a king shielded and sup-
ported by posterity ; yet this king in the chair
of majesty, has vine and olive branches about
him, attended by his nobles and third estate in
parliament; ready in the twinkling of an eye,
as if it had been a particular doomsday, to have
been brought to ashes, dispersed to the four
winds. I noted the last day my lord chief jus-
tice, when he spoke of this Powder Treason, he
laboured for words; though they came from
him with great efficacy, yet he truly confessed,
and so must all men, that that treason is above
the charge and report of any words whatsoever.

Now, my lords, I cann'otlet pass, but in these
glasses which I speak of, besides the facts them-
selves and danger, to shew you two things : the
one, the ways of God Almighty, which turaeth
the sword of Rome upon the kings that are the
vassals of Rome, and over them gives it power ;
but protecteth those kings, which have not ac-
cepted the yoke of his tyranny, from the effects
of his malice : the other, that, as I said at first,
this is a common cause of princes : it involveth
kings of both religions; and therefore his ma-
jesty did ,most worthily and prudently ring out
the alarm-bell, to awake all other princes to
think of it seriously and in time. But this is a
miserable case the while, that these Roman
soldiers do either thrust the spear into the sides
of God's anointed, or at least they crown diem
with thorns ; that is, piercing and pricking
cares and fears, that they can never be quiet or
secure of their lives or states. And as this
peril is common to princes of both religions, to

761]

STATE TRIALS, 1 1 James L 1613.— Case of William Talbot.

[783

princes of both religions have been likewise
equally sensible of every injury that touched
their temporals.

Thuanu* reports in his story, that when the
realm of France was interdicted by the violent
proceedings of pope Julius the second, the king,
otherwise noted tor a moderate prince, caused
coins of gold to be stamped with his own image,
and this superscription, * perdain nomen Baby-
4 lonis e terra.' Of which Thuanus saith, him-
self had seen divers pieces thereof. So as tliis
catholic king was so much incensed at that time
in respect of the pope's usurpation, as he did
apply Babylon to Rome. Charles the 5th, em-
peror, who was accounted one of the pope's best ,
sons, yet proceeded in matter temporal towards
pope Clement with strange rigour; never re-
garding the pontificality, but kept him prisoner
thirteen months in a pestilent prison ; and was
hardly dissuaded by his council from having
sent him captive into Spain ; and made sport
with the threats of l'rosberg the German, who
wore a silk robe under his cassock, which he
would shew in all companies; telling them that
be carried it to strangle the pope with his own
hands. As for Phihp the fair, it is the ordi-
nary example, how he brought pope Boniface
the 8th to an ignominious end, dying mud and
enraged ; and how he stiled his rescript to the
pope s bull, whereby he challenged his tempo-
rals, tcimt satuitas vestra, not your beatitude,
but your stultitude; a stile worthy to be con-
tinued in the like cases; for certainly that
claim is mere folly and fury. As for native ex-
amples here, it is too long a field to enter into
them. ' Never kings of any nation kept the
partition-wall between temporal and spiritual
better in times of greatest superstition. I re-
port me to king Edw. 1, that set up so many
crosses, and yet crossed that part of the pope's
jurisdiction, no man more strongly. But these
things have passed better pens and speeches :
here 1 end them.

But now to come to the particular charge of
this man, I must inform your lordships the occa-
sion and nature of this offence. There hatb
been published lately to the world a work of
Soarez n Portuguese, a professor in the univer-
sity of Coimbra, a confident and daring writer,
such an one as Tully describes in derision;
' nihil turn vcrens, quam ne duhitare aliqua de
4 re videretur :' one that fears nothing but this,
lest be should seem to doubt of any thing. A
fellow that thinks with his magistrality and
goose-quill to give laws and menages to crowns
and sceptres. In this man's writing, this doc-
trine of deposing or murdering kings seems to
come to a higher elevation than heretofore;
end it is more arted and positived than in others.
For in the passages which your lordships shall
hear read anon, 1 find three assertions which
fun not in the vulgar track, but are such as
wherewith mens ears, as I suppose, are not
much acquainted. m Whereof the first is, that
the pop* hath a superiority over kings, as sub-
jects, to depose them ; uot only for spiritual
crynes, as heresy and schism, but for faults of a

temporal nature: forasmuch as a tyrannical go-
vernment tendeth ever to the destruction of
souls. So by this position, kings of either re-
ligion are alike comprehended, and none ex-
empted. The second, that after a sentence
given by the pope, this writer hath defined of a
series, or succession, or substitution of hangmen,
or bourreaux, to be sure, lest an executioner
should fail. For he saith, that when a king is
sentenced by the pope to deprivation or death,
the executioner who is first in place is he to
whom the pope shall commit the authority,
which may be a foreign prince, it may be a par-
ticular subject, it may be general, to the first
undertaker. But if there be no direction or
assignation in the sentence special nor general,
then, de jure, it appertains to the next suc-
cessor, a natural and pious opinion ; for com-
monly they are sons, or brothers, or near of
kin, all is one, so as the successor be apparent ;
and also that he be a catholic. But if he be
doubtful, or that he be no catholic, then it de-
volves to the commonalty of the kingdom ; so
as he will be sure to have it done by one mi-
nister or other. The third is, he distinguished
of two kinds of tyrants, a tyrant in title, and a
tyrant in regiment ; the tyrant in regiment can-
not be resisted or killed without a sentence
precedent by the pope ; but a tyrant in title
may be killed by any private man whatsoever.
By which doctrine he hath put the judgment of
kings titles, which I will undertake are never so
clean but that some vain quarrel or exception
may be made unto them, upon the fancy o«
every private man; and also couples the judg-
ment and execution together, that he may judge
him by a blow, without any other sentence. —
Your lordships see what monstrous opinions
these are, and how both these beasts, the beast
with seven heads, and the beast with many
heads, pope and people, are at once let in, and
set upon the sacred persons of kiugs.

Now to go on with the narrative. There
was an extract made of certain sentences and

fortions of this book, being of this nature that
have set forth, by a great prelate and coun-
sellor, upon a just occasion ; and there being
some hollowness and hesitation in these matters,
wherein it is a thing impious to doubt, discovered
and perceived in Talbot, he was asked his opi-
nion concerning these assertions, in the presence
of the best : and afterwards they were delivered
to him, that upon advice and sedato animo> he
might declare himself. Whereupon, under his
hand, he subscribes thus;

* May it please your honourable good lord-
' ships : conceming this doctrine of Suarcz, I do
' perceive, by what I have read in this book,
' that the same doth concern matter of faith,
' the controversy growing upon exposition of
' scriptures and councils, wherein, being igno-
' rant nnd not studied, I cannot take upon me
' to judge; but I do submit my opinion therein
1 to the judgment of the catholic Roman church,
' as in all other points concerning faith I do.
* And for matter concerning my loyalty, I do
' acknowledge my sovereign liege r

7S3]

STATE TRIALS, U James I. 1613— Case tf William TalboU

[784

' James, to be lawful and undoubted king of all

* the kingdoms of England, Scotland, and Ire-
' land ; and 1 will bear true faith and allegiance

• to his highness during my life.

William Talbot/

My lords, upon these words I conceive Tal-
bot hath committed a great offence, and such a
one, as if he had entered into a voluntary and
malicious publication of the like writing, it
would have been too great an offence for the
capacity of this court. But because it grew by
a question asked by a council of estate, and so
rather seemeth, in a favourable construction, to
proceed from a kind of submission to answer,
than from any malicious or insolent will ; it was
tit, according to the clemency of these times, to
proceed in this manner before your lordships.
And yet let the hearers take these things right ;
for certainly, if a man be required by the coun-
cil to deliver his opinion whether king James
be king or no ; and he deliver his opinion that
he is not, this is high treason. But I do not
' f>uv that these words amount to that ; and there-
fore let me open them truly to your lordships,
and therein open also the understanding of the
oiiender himself, how far they reach.

My lords, a man's allegiance must be inde-
pendent and certain, and not dependent and
conditional. Elizabeth Barton, that was called
tlie holy maid of Kent, affirmed, that if king
Henry 8, did not take Catharine of Spain again
to his wife within a twelvemonth, he should be
no king; and this was treason. For though
this act be contingent and future, yet the pre-
paring of the treason is present. — And in like
manner, if a man should voluntarily publish or
maintain, that whensoever a bull of deprivation
shall come forth against the king, that from
thenceforth he is no longer king ; this is of like
nature. But with this I do not charge you
neither; but this is the true latitude of your
words, that if the doctrine touching the killing
of kings be matter of faith, then yeu submit
yourself to the judgment of the catholic Roman
church : so as now, to do you right, your alle-
giance doth not depend simply upon a sentence
of the pope's deprivation against the king ; but
upon another point also, if these of doctrines
be already, or shall be declared to be matter
of faith. But, my lords, there is little won in

this : there may be some difference to the guilt
of the party, but there is little to the danger of
the king. For the same pope of Rome may,
with the same breath, declare both. So as
still, upon the matter, the king is made but
tenant at will of his life and kingdoms, and the
allegiance of his subjects is pinned upon the
pope's acts. And certainly it is time to stop
the current of this opinion of acknowledgment
of the pope's power in temporalibus ; or else it
will sap and supplant the seat of kings. And
let it not be mistaken, that Mr. Talbot's offence
should be no more than the refusing the oath
of allegiance. For it is one thing to be silent,
and another thing to affirm. As for the point
of matter of faith, or not of faith, to tell your
lordships plain, it would astonish a man to see
the gulph of this implied belief. Is nothing
excepted from it ? If a man should ask Mr.
Talbot whether be do condemn murder, or
adultery, or rape, or the doctrine of Mahomet,
or of Arius, instead of Suarez ; must the an-
swer be with this exception, that if the question
concern matter of faith, as no question it doth,
for the moral law is matter of faith, that therein
he will submit himself to what the church shall
determine? And, no doubt, the murder of
princes is more than simple murder. But to
conclude, Talbot, I will do you this right, and I
will not be reserved in this, but to declare that
that is true; that you came afterwards to a bet-
ter mind ; wherein, if you had been constant,
the king, out of his great goodness, was resolved
not to liave proceeded with you in course of
justice : but then again you started aside like a
broken bow. So that by your variety and
vacillation you lost the acceptable time of the
first grace, which was not to have con vented
you.

Nay, I will go farther with yon. Your last
submission I conceive to be satisfactory and
complete. But then it was too late; the king's
honour was upon it; it was published and a day
appointed for hearing. Yet what preparation
that may be to the second grace of pardon, that
I know not : but I know my lords, out of their
accustomed favour, will admit you not only to
your defence concerning that that hath been
charged; but to extenuate your fault by any
submission that now God bhall put into your
mind lo make.

j STATE TRIALS, 11 JAMts I. 1613.— Case qfifte Countess of Ester. [7S6

Proceedings between the Lady Frances Howard, Countess of
Essex, and Uobkkt Karl of Essex, her Husband, before the
King's Delegates, in a Cause of Divorce: 11 James I. a. n.
1613.* [3 Rennet's Hist, of England, 666, 69<L 1 Bacons
Works, 73.]

*ON the Petition of Fran era counters of

»x, complaining that the Earl her Husband

incapable of consummating their Ma mace,

praying a Commission to examine, it* her

RpUint was well founded ; the king granted

request, and appointed the following per-

f Commissioners : George archbishop of

iterbnrv, John bishop of London, Lancelot

op of Ely, Richard bishop of Litchfield and

entry, John bishop of Rochester, Mr Julius

iar, LL.I). sir Thomas Parry, LL.D. sir

liel Donne, LLD. sir John liennct, LL.I).

Francis James, and Dr. Thomas Edwards.

: Libel contained the following Allegations:

. That she, at the time of the Marriage, was
rears old, and is at this time Tl or U'S. II.
it slie and Robert Earl of Essex were mar-
by publick rite* and ceremonies of the
rch in January 1003. III. That the afore-
Kobert, at the time of the pretended Mar-
e, was about 14, and is about 22 or 23 at
time; and ever since, and at this present,
man (as far forth as a man may judge), and
l been in good health, and perfect cm ate of
y, nor any way hindered by any ague or
ness, but that he miidtt have carnal copu-
hi with a woman. IV. That since the pre-
Jed Marriage, at least b\ the space of whole
continuate three years after the said Ro-

Sir Anthony Welo-m's " Court and Clm-
jtr of K. James," after narrating the murder
Jvcrbnry, introduce', p. 76, Lady Essex's
-nrcethust : '* Now \\;;^ ail, as they believed,
»t and in the depth of security, and tl»e earl
Somerset and countess of Essex be&an to
*y iheir loves* more opt uly ami impudently,
that the world d.d talk very loudly and
adly of this adulterous necting; it must
a that ground proceed to an adulterous
•riage, as well to the wronging a young no-
nan, a* to the dishonour and •dr.uue or tin m-
^es. * But they must needs to the divil
ires/ yet know not how handsomely to
ct this, hut by making the king a party in
i bawdy business, which was no hard matter
•fleet, for the king's eye began to wander
rr a new favorite, being satiated with the
, therefore for the hhuumg this lmwdry to a
rriagc, the bishops must he principal actors,
I know not in wliat had action they would

be lookers on) ; and the bishop of Wi li-
ster, an excellent civilian and a very great
.«il«ir, must be the principal, for which his
i was knighted, and will never lose that title
rir Nullity Bilson. For hy a nullity of the
vol. ir.

l>ert had fully attained the ace of 18 years, as
time and place did serve, after the fashion of
other married folks, the said Frances Howard
in hope of lawful issue, and desirous to be made
a mother, lived together with the said Robert
at hed and board, and lay both naked and
alone in the same bed, as married folk* use :
aud desirous to be made a mother, from time
to time, again aud again yielded herself to his
power, and as much as lay in her otfered her-
self and her body to be known ; and earnestly
desired conjunction and copulation. V. .And
also the said Karl, in the same time very often,
again and again, did try to have copulation, as
with his lawful wife, which she tefused not,
hut used the best means she cotdd : notwith-
standing all this, the said Earl could never car-
nally know her, nor have that copulation in
any sort which the married bed ulloweth. VI.
Yet before the said pretended Marriage, and
since, the said Earl hath had, and hath power
aud ability of body to deal with other women,
and to know them carnally, and sometimes
have felt the motion and pricks of the flc*h
carnally, and tending to carnal copulation, as
he suith and believeth ; and peradventnre, by
a perpetual and natural impediment hath bren
hindered all the former time, and is at this
present, that he can have no copulation with
the said lady Frances. VII. Furthermore, the

first marriage must this second lake place; many
meetings of the bishops, aud the prime civi-
lians, in which there wanted no bribes from the
lord, 1-tdy, and the ir friends, to ha\e this nullity
brought t » pa-s, wherein the discourse would
have better bunted the mouths of bawds and
ruffians titan the grave di\ine«, among tbem
bishop Neale, then hishop ot Rochester, a
creature and favorite of the house of Suffolk,
took up a learned discourse in the science of
bawdry, how many degrees in that science
must produce a nullity, wherein were so many
beastly expres-ions as, for modesty sake, I will
not recite thi-m, being offensive to my very
thoughts and memory. Aristotle's problems
was a modest discourse to his, and he appeared
to be better studied in that than in divinity;
and to wind up his learned discourse, con-
cluded all those met in this lord and lady.
I he archbi-hop of Canterbury, Abbot, to his
everlasting fame, mainly opposed till the pro-
ceedings, and protested against them, for which
he ever after lived in disgrace, excluded from
the council table, aud died in the disgrace of
the king on earth; though iu favour with tl*
king of kiii^s."
3 fi

t67] STATE TRIALS, 1 1 James t. 1013.— Case qfthe Countess tf Essex, [78S

•aid lady Frances hath been, and is fit and able
to have copulation with a man, and such a one
lis may be carnally known ; neither hath in this
regard any impediment. VIII. Moreover, the
said lady Frances remaineth, and is at this pre-
sent a Virgin. Also at the .time of the pre-
tended Marriage, the said lady Frances was
Unacquainted with the Earl's want of ability
and impediment, formerly mentioned. IX. And
furthennore the suid Earl, long before tins
suit commenced, hath very often, and at sundry
times, con leased in good earnest, before Wit-
nesses of good credit, and his friends and kins-
folk*, that although he did his best endeavour,
yet he never could ; nor at this time can, have
copulation with the said lady Frances, no not
once. X. And lastly in regard of womanish
modesty, the lady Frances hath concealed all
the former inatters^and had a purpose ever to
conceal them, if she had not been forced,
through false rumours of disobedience to the
said Earl, to reveal them. — She requireth, since
this pretended Matrimony is but in fact, and
not in right, it may he pronounced, declared,
and adjudged as none, and of none effect ; and
she may be quiet and free from all knots and
bonds of the same, by your seuteuce and au-
thority.

The Earl of Essex put in his Answer the 5th

of July, 1G14.

The 1st and 2nd he answereth affirmatively.
—To the 3rd, he thinketh that at the time of
his Marriage, he was full 11 years, and is now
22 and upwards; neither since hath had, or
hath any sickness or impediment to hinder
him, but that he might have had copulation
with a woman, saving in the time of his sick-
ness of the small pox, for two or three years
after his marriage, which continued for a month
or six weeks, and at another time, when he had
a few fits of an ague. — To the 4th, he athrmeth,
that for one year he divers times attempted ;
that the two other years, when he was willing,
she shewed herself sometimes willing, but other
times refused, and he lay in bed most commonly
with her, hot felt no motions or provocations.
— To the 5th, lie answereth, that he never car-
nally knew her, hut found not any defect in
himself, yet was not able to penetrate into her
womb, nor enjoy her. — To the b'tli, he believ-
eth, that before and after tire Marriage, lie
hath found an ability of body to know any other
woman, and hath oftentimes felt motions and
provocations of the fiV:>h, tending to carnal co-
pulation, hut for perpetual and natural impedi-
ments, he knnwetki not what the words mean;
but that he hath lain by the lady Frances two
or tin ee years last past, and had no motion to
know her, and he believes never shall. — To the
7th, he believer h not that the said lady Frances
is a woman able and lit for carnal copulation,
because he hath not found it. — To the 8th and
$th, he belie vet h them both to be true, and
thinketh thnfoWe before some witnesses ot
credit, he did speak to this purpose, * That
he often times had endeavoured carnally to

know her, but that he did not, nor could
not.

Doubts conceived out of the Fact and Process
in the Suit between the lady Frances How-
ard, and the Earl of Essex.

1. Whether the Libel be defective* espe-
cially in the 4 th Article, where it is said, tnat
' D<«miuus Comes Essex plurihas et i tenuis
' vicibus' (which may be verified and satisfied
in two or three time?)) ' dictam dominam Fran-
' ciscam ejus uxorem pratensatn cognoscere
' tentavit,' &c. — 2. Whether the Answer of my
lord of Essex to the said 4th Article in that
behalf, being but thus, ' That he did divers
times attempt, &c.' be full, certain and suffi-
cient.— 3. Whether in this case my lord of
Essex his oath * (cum 7 manu propinquorum)'
be not by law requisite, us well as my lady's.
— 4. Whether my lord of Essex would be in-
spected by physicians, to certify (so far as they
can by art) the true cause and nature of the
impediment. — 5. Whether by triennial coha-
bitation, there having been no carnal copula-
tion between them * (Impedimentum mnleficii*
being accidental), ' pnrsumatur praccessisse vel
* potius subsecutum fuisse matrimonium con-
' tractum et solemnizatuin. — 0. Whether they
ought ' post praeceptum judicis' (notwithstand-
ing their triennial cohabitation before the suit
begun) to cohabit together, « saltern per ali-
( quod remporis spatium arbitrio judicis mode*
' randum,* for further trial, &c/

Depositions taken in the case of the Earl of
Essex, and the Lady Howard.

The Oath taken by the Lady Frances Howard.
•* That since the earl of Essex was 18 years
of age, he and I have for the space of 3 years
divers and sundry times lain together in naked
bed all night. And at sundry of the said times
the said earl hath purposely endeavoured and
attempted to consummate marriage with me,
and to have carnal copulation with me for pro-
creation of childreu: and I have at such times,
as the said earl hath attempted so to do, yielded
myself willing to the same purpose. All which
notwithstanding, I say and affirm upon my
Oath, that the said carl never had carnal copa-
lation with me, Frances Howard.**

Interrogatories adminstered to all Witnesses
(excepting the earl and countess of Suffolk)
produced, and examined on behalf of the
earl of Essex, and who had been produced
against him on the part of the lady Frances
Howard, in a Suit brought by the said lady
against the earl of Essex, for the N ullity of
a pretended marriage.

1. Let each witness be interrogated, as to
his age, birth, condition, and place of abode;
and where he has chiefly resided for ten years
last past ; and how long he has known the par-
ties contesting. 2. Whether he is a relation or
kinsman of the party on whose behalf he is pro*
duced ; and if so, in what degree of consangui-
nity. 3. Which of the parties, plaintiff or do*

789]

STATE TRIALS, 1 i James I. 1613.— in a Cause of Divorce.

[790

fendant, he most favours ; with which of them
he is' most conversant, and to which he would
confer the hetter-of-the-day, if in his power.
4. Whether he lias communicated to any body,
or any body rias conferred with him concerning
the nature and substance of his deposition in
this cause x Ami if he answer in the affirmative,
then let him declare with whom he so conferred,
and what the discourse that passed between
them. 5. Whether he came of his own accord,
or by compulsion, to give his testimony in this
cause. 6. Let him depose what he knows
of the contents in the 4th article of the libel
put in, in this cause ; or any part thereof: And
in what month and year the earl of Essex at- '
tained to the full age of 18 years ; and in what
place- and places the earl and the plaintiff, for
the whole space of three years after Mich time,
had society of bed and board, cohabited and
lay together; and for how long together in
each distinct place. 7. Let him likewise de-
pose what he can say to the contents in the
sixth article of the aforesaid libel ; and whe-
ther he knows what perpetual and incurable
impediment the earl did and does labour under ;
and let him express the nature and quality
thereof, and when he knew it; and let him
give the causes of such his knowledge in
every circumstance. 8. Let him depose
likewise what he can say to the contents
in the 10th Article of the said libel : And
of the time and place, and how often, and
before whom the earl confessed and acknow-
ledged, as in the said Article is contained and
specified.

Depositions upon the Articles of the Libel
put in by the Lady Frances Howard, taken
June 3, 1613.

Katharine Fines, daughter of Thomas lord
Clinton, aged about 18 years, deposeth, that
the hath known the lady Frances for about a
year and a half, and the lord of Essex for above
• Tear.— To the 1st, 2d, and 3d Article, cannot
depose. — To the 4th Art. says, That from Mid-
summer last to All-hollantide, the earl of Essex
and lady Frances remained and kept company
together as man and wife; first in the countess
of Leicester's house at Drayton in Warwick-
shire; and after at the earl's own house at
Chartley in Staffordshire : And that for two of
the nights they lodged at Drayton, being on a
Sunday at night, and on a Monday at night,
they to ber knowledge lay together in one
chamber ; she seeing the earl go into the said
chamber undressed and ready for bed ; and she
verily believes they did lie together in the same
bed those two nights, for that she knows there
was but one bed in the said chamber. That
before Christmas lust die said * lady Frances
lying at Salisbury- house in the Strand, the earl
came thither and went into the chamber where
lady Frances was in bed, and went to bed to
her. and there was no other bed in that chamber ;
aod this deponent heard the earl and lady
France* talking together a good part of that
okhta

Her Depositions to the Interrogatories admi*
nistered lor the other side.

To the 1st Art. Speaks as to her birth and
abode. — %d Art. That she is cousin-gcrmau
to the lady Frances. — 3d Art. Thnt as to this
cause, she favours the parties equally ; that her
conversation is most with the plaintiff; and
that if it were in her power, she would give the
decision according to right. — 4th Art. An-
swers in the negative. — 6th Art. That she was
not compelled, but was made acquainted by
some that she should be used as a. Witness in
this cause, and had uotice given her when she
should come.

The Deposition of Elizabeth Rave, the daugh-
ter of William Raye, of Woodstock in Ox-
fordshire, Kent, taken to the Libel : Aged
above 20 years.

That she has known the lady Frances for
above two years ; and the earl of Essex for the
same time. — To the 4th Art. That she served
the lady Frances for above twelve months, and
that shortly after she came to serve her, my
lady went to my lord Knoules's house at Caw-t
sam in Oxfordshire, where shp stayed about a
fortnight, and the lord Es^ex came thither to
her, and laid in naked bed with the said lady
Frances divers night*, as this deponent hath
heard them report that attended the lady in her
chamber : That the deponent herself at Dray-
ton attending the said lady in her chamber, did
see them in nuked bed together as man and
wife for divers nights ; as they did likewise af-
terwards at Chartly, for above a quarter of a
year, and at Michaelmas after that, at Durham-
house at London.

Her Examination to the Interrogatories on the

other side.

To the 1st Art. Speaks as to her abode at
distinct times. — 2d Art. Answers in the nega-
tive.— 3d Art. That she favours both parties
equally ; converse* with neither of them ; and
if in her power, would have right take place. —
4th Art. Answers negatively. — 5th Art. That
she was requested to come to testify in this
cause, but was not compelled by any process— «
6th Art. Hath heard it reported tliat the earl
of Essex was 22 years old in January last.— f
7th and 8th Art. No wise concern this depo-
nent.

The Deposition of Frances Britten, Widow,
taken to the Libel.

That she J3 aged about 55 years, and hath
known both the parlies respectively from their
infancy. — To die 4th Art. That the deponent
having oftentimes occasion of business with the
lady Frances, hath come to her since her mar«
riagc to the earl, and hath seen the earl and she
dine and sup together as man and wife : That
between Michaelmas and All-holhntide was
three years, this deponent coming tq lady
Frances's lodging at Hampton-Court early in
the morning, sho was brought into the bed*
chamber! where she did see them in naked bet|

SOI] STATE TRIALS, 1 J James I." 1615.— Cose qftht Counts* qfE$scx, [79*

together; as likewise she did at lady Frances's
lodging ut Whitehall : That perceiving thew in
bed together, this deponent slept back, but the
lady Katherine Howard her sister being there,
called the deponent in, and then lady Frances
stept out of her bed, and left the earl there :
That this was on St. Valentine's-day, for that
lady Katharine toll the earl, that there was a
Valentine f>r him. Cannot depose further,
saving that when this deponent was at Hamp-
ton-court, as is before mentioned, after the
earl and lady Frances were risen, the lady mis-
sing a pendant ruby that usually hung at the
ring in her ear, desired this deponent to look
for it in the bed. That thereupon bhe and the
lady's chamber-maid turned down the bed-
cloaths, and there they saw the places where
the earl and lady lrad lain, hut that there was
such a distance between the two places, and such
a hill httween them, that this deponent is per-
suaded they did not touch one another that
night.

Her FiXamination on the other Side.

To the 1st Art. Hath already spoken. —
2d. Art Answers negatively. — 3d ArtJ That
she favours both parlies equally, converses most
with the plain titf, but would have right take
place in the decision of the cause, if in her
power. — 4th Art. Speaks negathely. — 5th Art.
Came at the request of lady Frances, but no
ways compelled. — 6th Art. Refers herself to
her former deposition. — 7th and 8th Art. Do,
not concern her to answer.

The Deposition of Catherine Dandenell, one
of the lady Frances's domeslick servants ;
aged about 16 years.

Hath known the lady Frances about four
years, and the carl for about three. — To the
4th Ait. That about this time three years,
lady Frances went to the loid chamberlain,
her father's at Awdley-end in Essex, and re-
mained there all that summer, whither the carl
came to her and staid sometimes a week, some-
times a fortnight, and they conversed toother
as man and wjfe, and lay together many nights,
to this deponent's knowledge, who had seen
them so o\er night, and had found them toge-
ther in naked bed in the morning; us she like-
wise hath, at the earl's house at Chartley ; and
at the lady WaUingham's at tho Tilt-yard; and
the ciyuntess of Leicester's at Drayton ; and
at Salisbury-house, and Dirham-house.

Her Examination to the Interrogatories on the

other Side.

To the l»t Art. Hath already spoke. — 2d
Art. Answers negatively. — 3d Art. Most
favoureth the lady Frances, and is most in her
company, and wisheth the victory to go where
the right is. — 4th Art. Answers negatively. —
5:h Art. That she comes at the plaintiff's re-
quest, no ways compelled. — 6th Art. Refers
herself to her former deposition. — 7th and 8th
4rt« Do not concern her to answer.

The DrposiTiON of Anne Jacmim, one of the
domestick servants of .lady Frances; aged
about 24 years.

Hath known the parties in difference between
three and four years. — To the 4ih Art. That
for all such time she hath attended on lady
Frances as lier chamber-maid, and that all
along until within these 13 months last, the earl
hath cohabited at bed and board with the said
lady Frances at White-hall, Chartley, Tilt-yard,
and other places: Hath often seen theui lie
together naked in one and the same bed, and
at Salisbury-house in the Strand, since Christ-
mas last.

In her examination on the opposite side, de-
posed) as the lost witness did.

The Du'osition of Thomas Bam ford e, yeo-
man ; aged about 40 years.

Hath known the lady Francis by sight about
five years, and the earl by sight about three
years. — To the "St, 2d and 3d Art. Cannot
depose. — 4th Art. Deposeth, That in 1611,
about the latter end of the summer, the eurl of
Essex and lady Frances were at the lady Cor-
bett's house iu Derbyshire, whom the deponent
then did and still doth serve ; that they con-
tinued there about a week, and dined or supped
together in the said house, and lay together in
one and the same naked bed, as it was com-
monly thought among>t the servants of the said
house.

His Examination on the other Side.

To the 1st Art. Hath already spoken. 2d
Art. Answers negatively. 3d Art. That he
favours both sides equally, converses with nei-
ther, and wisheth the victory in this su:t may
go according as the equity of the cause re-
quire th. 4th Art. Answers negatively. 5th
Art Came on request of lady Frances, no
ways compelled. 6th Art. Refers himself to
hii former deposition. ?th and 8th Art. Not
concerned to answer.

The Deposition of George Powell, gent, aged
about 36 years.

Hath known the parties in difference about
three years. To the 1st, 2d and 3d Art. Can-
not depose. 4th Art. Says, That he served
the earl and ladv Frances from May 1609, to
this time, and still doth attend on lady Frances.
During all which time they did cohabit and keep
company together as man and wife, sometimes,
at Whitehall, Greenwich, and in their progress
attending the king and queen, ut Kensington,
all the summer 1611 at Chartley, at Durham-
house, Awdley-end, and other places. That
their cohabitation together continued till the
end of the year 1612, and thatit was commonly
reported amongst the servants of the house,
that they did lie together in one and the same
naked bed. That this depouent hath from time
to time seeu their servants put them to bad
together; and that he hath come to their
chamber to know their commands! and it

193] STATE TRIALS, 1 1 James I. 1 f3 1 3.— -m a Cause of Divorce.

told liim that they were in bed together. That
in Jane or July 1600, this deponent being called
into their lodging-chamber at Greenwich in a
morning, saw them in nuked bed together.

His Examination on the other Side.

[794

. To the 1st Art. Hath spoken already. 2d
Art. Answers negatively. 3d Art. Favours
both parties equally, is most conversant with
lady Frances, his employment being to wait on
her, aud wishes tliat right may take place. —
4th Art. Answers ncpatively: 5th Art. Comes
on request of lady Frances to give his testi-
mony, and no ways compelled thereto. 6th
Art. Refers to his former deposition. 7th and
3th Art. Concern not this deponent to answer.

The Deposition of William Power, of Lon-
don, merchant ; aged near 60 years.

Hath known lady Frances about ten years,
and the earl of Essex for about seven. To the
1st Art. Says, The earl and lady Frances were
in Christmas time, other seven years tince hist
Christmas, or seven come Christmas sixain, to
his knowledge married together in the chnuel
at White-hull, for that this deponent was pio

Art. Answers negatively. 3d Art. That touch-
ing this suit, he iavoureth the parties alike., is
most in company with the plaintiff; and if it
were in him, he would botow the victory
where the most right is. 4th Art. Answers ne-
gatively. 5th Art. Answers, He was desired
by sir VVm. Button, on the plaintiffs behalf, to
come and testify in this cau-e, and is not com-
pelled. 6th Art. Refers to his former deposi-
tion. 7th and ttth Art. Not concerned to an-
swer.

The Deposition of the ri^ht hon. Thomas,
earl of Sutfoik, Lord High Chamberlain of
the Houshoid, taken the iuth of June, 1613,
aged about 57 years.

To 1st Art. Says, It is true, for he was pre-
sent at the solemnization of the pretended
marriage. 2d Art. That lady Frances was
above 13 years of age at the time of the said
marriage, and is now ubove 22 years old. 3d
Art. That at the time of the marriage the earl
was above 14 years of age, as the deponent
hath heard his friends, who were likely to know
his age, report ; and is now above 22 years old.

, iii*^ i * hat to that time and since, the earl was, in

sent at the marriage. 2d and bd Art. Canifot the j^nem of men, of good health and
depose any thing certainly. 4th Art. .Says, ^^.^ 0f i,0,jv> cxccnt nt lwo scveral lime§
That this time two years they cohabited as man wfjC1; ,1C WM ;ick of the sm:i||.pox ano» an

and wire, and kept house together at the earl's
bouse at C hartley. That this deponent was
there about four months, and hath divers times
been in their lodging-chamherMii a morning,
and hath seen them in naked bed together.

His Examination on the other side.

To the 1st Arc. Hath already spoken. 2d

Art. Answers negatively. 3d Art. Fti\ourc:h

both the parties in this suit alike, is most in the

plaint irTs company : And uUheih they wen?

ague ; and was likely to be able to have the
carnal knowledge of a woman, for any thing
t!»is deponent could judge. 4ih Art. Knows
that alter the earl was come to the ajrc of 18
year?, he and lady Frances kept company, and
lay together as man and wife, for three whole
wars : Imih seen them in bed together some-
times. 5th and 6th Art. That notwithstanding

cjme to an agreement.

the premise*, the e:ul nevi r had any carnal
knowledge of lady Frances, nor never could, as
'Itli Art. Answers lie- : the carl hath confessed to the deponent. 7th
gativelv. 5th Art. 'I hat he came on no com- | 15th and 9th Art. Relievo the?o Articles to be
pulsion, but was requested by sir William Rut- I true. 10th Art. That the earl, in this depo-
ton, on behalf of the lady Frances. 6ih Ait. j nenfs hearing, confessed divers times, in scve-
Kefers himself to hi* depositions made to the j ral companies, that he hr.ih dour his endeavour
4th Art. of the libit. 7th and 8 th Art. Not*

concerned to answer the? same.

The Deposition of Renjamin Orwell, one of
the doinestick sen-ants of the lady Frances ;
aged above 17 years.

Hath known the parties in difference for
men years. To the l?t 2d and .'id Art. Can-
not depose. 4th Ait. Saith, That for these
two years last past, the dcponex.t hath < "i.tiau-
aliy attended on lady Fiances at Ken$ie;:'on,
Chartley, the lady Corhett's, countess of Lei-
cester's, lord KuouleA; and in nil those

to have carnal knowledge of lady Frances, and
yet never could. 1 lth Art. Relieves this arti-
cle to be true. 12th 13th 14lli and lath Art.
Refers himst If to the register of the court of
delegates. 16th Art. Says his above Deposi-
tions arc true.

The Opposition of the right hon. Kathcrine
countess of .^uiVulk ; aged about 47 year*.

To l*t, 2d. 3d Art. l)e-*o<.r<» thev arc true.
4th, .'ilh, <itii, 7 til Art. Relicus to be true,
tith A;t. Dip )M * to be true of her knowledge.
9th Art. R-m ves To be true. 10th Art. Hath

places the earl and lady France-, cl.-ibiti-d to- heard it ui-orti-d, aud believes it to be true,
geiher as man and wife, and, as it w.,v .^id by j l1lil Art. Reli* w -V the same n be true. 14th
thair attendants, did commonly heto^iher in
the some bed naked. Hath seen the e ■» I come
out of the lady's lodging-chamber in his pnnta-

rt. o:e. (Je-ncluiLs i» the carl of Suffolk.

Ues, having nothing on him hut his shirt : and
verily believes he at such times came out of
bed from the said lady Frances.

Hit Examination on the other side.
To the 1st Art. Hath spoken already. 2d

The Lord Archhiihop of Canterbury's Reasons
against the Nullity.

Tna-amich as we firmly believe, that the
Scripture doth directly, or by consequence,
contain in it sufficient matter to decide all
controversies, especially in things appertaining

795] STATE TRIALS, II James I. Iflli— Cue J the ComuaqfEiset, [796

in the church, as that Marriage among Chris- ■ ginning, but no mortal man's

tians can be no less accounted than a sacred J the end, either in Lis person, 01

thing, as being instituted by God himself in ' Then the Archbishop, lor confirmation ol

1'eradiie, honoured by the presence of our Sa- Opinion, shewed the Testimony, olMelaucthon,

viour himself, declared l<y St. Paul to be a sign i Pezelius, llemingiut, Polanus, Arcularius,

of th» spiritual conjunctions between Christ ' ficia, Zanchius.

and lite Church t— 1 would l.e glad to know, ' j,1(/a.|1(m PhiUppi Mtlanethmii de Divortiitt*

.ample.

and by what text of scripture, either by the
Old or New Testament, n man may have a
warrant to mate a nullity of n marriage so-
lemnly celebrated, propter maieficium Versui
Antic. — Which 1 do the rather ask, because I
find warrant espresilyin the scriptures to make
a nullity of a marriage propter fri^idUatem, by
the words of our Saviour, Mat. m. 12. ' For

* there be some chaste, or Eunuchs, which are

* so born of their mothers' belly, and there be

* some which are made chaste of men, and
' there be some which have made themselves
' chaste for the kingdom of heaven.' — I would
also know gladly, what antient father amongst
the Greeks or Latins, by occasion of interpre-
tation of scripture, or any disputation, hath
mentioned malefiaum ttriui hitnc. — The like I
demand touching antient councils, either gene-
ral or provincial, and concerning stories eccle-
siastical, whether any such mutter be to be
found in them. — If lor audit that appenreth
never mention was made of this, till Hircanus,
Rheiuisis cpiscopus, who lived .100 years after
Christ ; it may well be conceived that ibis was
a concomitant of darkness or popish supersti-
tion, which about that lime grew to in great
an height (Gori permitting them) that punish-
ment might fall uuon the children nf unbelief.
— Dut since the Light of jie Gospel is now in
so great a measure broken forth again, why
should not I hope that those, who have em-
braced the gospel, should be free from this »u-
Icjicium ; especially since unionist a million of
men in our age, there is but one louiiil in all
our country, who is clearly and evidently
known to be troubled with the same? And if
there should be any which should seem to
molested, we are taught to use two rcmeili
the one temporal physic, the otiicr eternal
For the first, our Snviour said, ' Hoc genus c

S'S

'jejunjum

' Cui resistite firm J: in nue ; ana we innouists
themselves prescribe alms, fasting and prayer
to he used iu this cow? ; but that they join sup-
plication and their exorcism* thereunto, anrl
for curporeul medicine to be applied therewith
as against a disease : so is the judgment of our
late divines, whether they speak of maltfkiam
at not. Now admit the earl of Essex might
he imagined to be troubled with maUficium ler-
»«i haac ; I demand what alms batli been
given, what fasting hnth Iweti used, and what
prayer* have been poured forth to appease the
wrath of God towards him or his wife ; or
what physic hnth been taken, or medicine
' bed for three years tozeth

le things: but the first heat
must be to pronounce a nullity in the ir ,,„.,..,_.

ftage, of which declaration we know toe be> i dam uon legitime const ntiunt, cunt uqiu taJh*)

. sonffi quse non sum

■onjugulem nequaquaiii li
explunita est frigniilus, Judex pro
laas persona* liberal es-e. Nee fit tunc
mium, quia lion era* conjugium, juxta die-
.Mat. 19- sed fit declaratio, ut alii sciant,
ii 9ocietatem nun esse conjugium, et personal
: habet naturie vires integras, concedi aliam
gsoroo copulationein legitmiain. Sed ad
hiandum frigiditatem Jura tern pus coosti-
it, si res dubia, est, ne ante irieiiuium fiat
ItCtJur. iiodem modo proiiu nciant tie iis in
<u> uatura it a latsa est fnscinu aut venencio,
M medics snnari non possit, si toto triennio
frt tentutu est medicatio. — Tanta auiem est
i> aliquaruin mulierum, ut occultent imbe-
:ulein nrorum, sicuti viri doctissimi Siinoni*
< i, vii. isorur narrniit, se,mortua prima conjuge,
duxisse viduuin virgin em, quae uudecim anno*
tiupia fuerit viro fngido, nee uuquam ulli, ante
a viri, hunc rem patet'ecit. Hate Me-
nu in loci* t Loco de conjugro, qui
Cliri-tjpherns Pezclius suis in Melancihunis

haac unnotationem. Impotentia aha naturalis,
alin accident alia est. Naturalis, cum qui* na-
ture non est idoneus nd conimixtionem conju«
gnlein. Accidental!*, cum qui* est ciatratu*,
aut vioeficio conuptus. Rursus que ex vene-
ncio . xidit impotentia, aut curari potest medi-
ciunentis, aut est perpetua. Ex bis distiocli-
unibus sumitar explicatio quatstionii, an, ct
■ .. do impotentia fit causa divortii. Nam
in tir ii n potent es, non potest constnreconjugium,
quia decst causa suhiciens et tiualis. Prunum,
■n persona ilia qoat Sana est, decepta fuit, et
ignorant duxit iuipoteutein, non ig.tur potuit
cs-e consensus, qui est cnusa eibcien* Matri-
monii. Secundu, duplex est finis conjugii;
unus est genemtio sobalis, ricttt dicilur, Crescita
et iiitiliiplicamini: Alter finis est, Vitatio con.
liiitinis libiilinum, juxta dictum ; Vitaiidx for-
niL-at. inis causa unusquisque bubeat uxorem,
II < I'ezelius 2 parte etphcat. In Exauien
Mi-laticthou.

in tadeia Cauta HcuingU Judicium.
Iniirtbihtas corporum ad usum matrimonii
divortii causa est, et nonnunquain tkscino ei
veiietieiu adco inbahiks redduntur viri, utuan-
njuatm sanari po-siut, Sed plura sunt judicii
|jh[" iideiida,antequamdivortiisententiamferat,
Pnmum, an mi(ioM:rnia pratcesserit Nuptial,
Seituiulmn.an sitsubsetutu Nuptias. Tertiunt,
an sit curahilis. Quartum, an ejus rei mulier
EODau fuerit ante Nuptias, Si praccesierit
Nupliu*, potest librrari persona tana dirortiun -
"" non enim fuit rerom ranjugtunj,

t97]

STATE TRIALS, JIJamisI. 1013.— mu Catae <f Diooree:

[79S

alter mat, fallit impotens, errat potens. Cum
ergo Deos nee rallaciam nee errorem probat,
Bon est dieendos eos conjunxisse. Proinde
Judex, si intdleserit ex probationibus inctira-
bile esse vitium, mox dectarabit sua leniiinuiiio,
nan fuiue Matrilnonium; verum li spe* sit
cnraiionis, triennium tiatuatur, in quo paten-
ter eipectetur curatio; qua; si frustra ten lata
merit. Judex pro nunc iubit I'onjugium nullum
raisse. — Si subsecutum est vitiuin post nuptins
etcompleimn maritalem ci.njugunj, nullo pacto
permiueudum at divortiuni : fortuiia e.iira
sfflicta, si absit culpa, patienter in conjugio
ferends est. Si alter fuerit conscius infirmita-
tia alteriua ante nuntiiis, roganiur simul hiibi
tare, et alia oflicim sibi mutuo prastare: N:im
persona contcia villi nlterius absque dubio
ftsndem meditatu est, quae fraus non debet illi
prodesae, si posies divnitiuni peiat. Ilzc
Heniingius libello de Conjugio, Repudio, et Di

Conjugium inire posiunt, qui nun sunt na-
lara vel arte Sp»ci.)iie>, aut quihu* nntura nun
est larsn fascino aut vetiefirio. Tales euim per-
sona nequaquatn fiunl conjugrs. Ideo etiam
naptiis celcbratis, cum trienui spa:io eipionita
est apadonis frigiditas, aut iota Irienukj tcntata
(at nature lata; medicaim. Judex prnuunciiire
potest illtts petsonas liberal esse. Polanus lib.
10. Sjutng. cap. S3.

• Artularii nuper profeuorit Tkeol. m Accide-
ntia Mtirpurgt'iii Judicium.

Inter person vis qua; propter frigid itatem
sliodve natune vitium ad usum conjugii sunt
ineptiB, cum non sit conjugium, teste Christo
Mat. 19. dhtirliuin bio locum habere puterit.
Si quara igitur personam tukm altcri jungi con-
lingat, Judex expluratH frigiditnte aut uaturte
viiui, utramquc personam iibenim pronunciabit.
Porro ad explorandam frigid it aleni Jurn triennii
tempo* pnescriliunr, pra:sertim si res dubiu sit.
Idem judicium est de tis quorum natura vei
rascino vel veneficio itii sit k-sa, ut ad conjugii
usum reddaniur inepli ; et omnem medicoruiu
operant intra tiienniuin inanem fuerint experti.
Ucc Arcularius in arm foederis, cap. 38.
Theoduri Baa Judicium.

Sponsolia cum personis paralysi iinmedic*-
bib, qua; corpus prersus enervnvit, frigiditate
insanabili, genitnlium pnrtiuni privanone, vel
adeo insigni hesione, ut perpetua coitus impo-
tentia necesaario coosequetur, uffeclis contractu
prorsus inutilia sunt, cum ad uiatrimoniuni a
Deo vocati videri non pnssint, qui ndein in
•Bonsalibn* datum praistare, uaturali objecto
ruio nequeunt. Quod si sponsalibus foctis,
ooujugio tamen nondum reipsa consummaio,
ejuimodi malum snpervcuerit, sentio ejusmodi
spoasnlia, Teluti Deo ipso jubente, dirimenda;
at quid objecto perpetuo impedimenta, palam
— *:L: istiusraodi sifonsalia non pia-

cere. Beta lib. de Divort. et Kepud pag. 91,
Genev. 1591. impress. — Alquo nunc suam
docirinam Beza inttltis ex sacra; scripture tosti-
mouiis probat: sed tantum png. 91. e tfuua
cautiooes adjecit. Piimum, ti frigidus poitea
convoluit, repetere pnureiu uxoreni, errore, viz.
Heparatam oportet, etiamsi alivri poitea esset
ciujuucta: secuudam cnuiionem, recteomnioo
in istiunuodi conttoversns comtitutam est, (ne
quid videlictt fieret, quod postea tnutari line
magno udendiculo non posset) ut trienmum sal-
tern ab ipso cupulutionia, i. e. durtas uxoris die
cxpectaretur, priusquam isii morbi insanabilei
sponsaba conjugiave dirimenda proaun-

lloc a

> de i

Nam

• Site Trcularii.

Recipiendum est quag per so non patent,
alioqui, ut in execiione, vel siquis nature vino,
(.stilus aut geniiali membro carear, quonum
ullum temporia intervaUumf

Zanchii Judicium.
Quemndmodum Bexa, sic nee Zanchiot im-
potcntiam ex venelicio attiget, scd tantum do-
cet, quosdain esse casus, qtubus matTimunio in
ipsa Ecclejia benedicta nulla sint, et subinde
naic exempla subjungit. Si cum eo contrabitur,
qui vir non erat, sed spado, aut propter perpe-
tuuin ei iusiuiabilem morbum, omcium coiijugii
pra^tare nullo inodo potest. Hie Zanchint
lib. 4. de op. Dei, cap. 3. sed illam ncc scrip*
tura; testimoniis nee rationibtis cunfirmat.

_ To tliese Arguments of the Archbishop, the
king vupchsall'd to uive an Answer himself.
which was as follows j

Tlie King's Answer.
To the hrst article, that the Scripture doth
directly or by consequence contain suffici-
ent matter to decide all controversies, espe-
cially in this appertaining to the church: this
in my opinion is preposterous, and one of the
puritans arguments, without a better distinction
or explanation. — For the orthodox proposition
is, that the Scripture doth directly, or by con-
sequence, contain in it sufficient matter to de-
cide all controversies in points of faith and sal.
vndon, of which sort a nullity of marriage
cannot be accounted for one ; and therefore
your consequence upon the former proposition
must t'uil. — i-'or further satisfaction of your fol-
lowing question (1 say) your second question
doth answer it : if there be warrant iu Scrip-
ture for pronouncing a nullity propter Jiigidi.
totem, then all the menus which may make
him J'rigidul verius tttutc, roust be compie-
hended therein ; for why doth the church
justly condemn the marriage of a man with hi*
sister's daughters, or the marriage of two listen,
but ut paritate rationit, for none of tbeui are
in termini* prohibited by the Scripture ? Only
tba conclusion gathered 4 p*ritute rationit.
For if it be not lawful to marry the father's wife,
because thereby you discover your father's
shame ; nor his lister, because she is his Lins-
your own sister, because thereby

discover your father** and your mothers
le : it can no more be lawful to marry your
■"s daughter, for thereby also you discover

799] STATE TRIALS, 1 1 James I. 1013— Case of the Countess of Essex, [800

your own shame ; as also the same reason
serves for ascending or descending in points of
consanguinity, quia par est ruth. — The like is
in this case ; tor although Christ spake only of
three sorts of eunuchs, yet ' Ratio est quia non
' potest esse copulatio inter cunuchum et mu-
' lierera,' and therefore St. Paul, 1 Cor. 7. tell-
etb us clearly, that ii is not ( Conjugium sine
' copulation*.' I conclude, therefore, a pari-
tatt rationit, that Christ did comprehend under
these three sorts all inability which doth per-
petually hinder * copulationem versus banc,'
whether it be natural or accidental ; for what
difference is tliere between cutting off the hand,
and being made impotent thereof ? ' Amputatio
4 et mutilntio membri,' is all one in the civil
law ; and that is a like defrauding of (he wo-
man, when either he who is to be lr r husband
is gelded, or when the use of that member to-
wards her is hy any unlawful means taken from
him. Neither is it any way needful to crave
the particular warrant of Scripture for a nul-
lity, no more than of warrant in this place for
any nullity at all ; for Christ dotli not directly
say, that a marriage so made shall be nullified,
neither doth l.e touch us what form o.r process
shall be used in that, neither makes he men-
tion of the triennial probation, no more than he
ibrbiddeth marriage within the fourth degree,
without leave obtained of the bishop of the
diocese. It is then suthcient to all moderate
Christians to be taught out of the Word of God,
that marriage is nulla sine copnlatione ; and
these words, guts Dais conjunxit, arc never
found in Scripture, where et erunt ti doth not
proceed, viz. they two shall be one flesh. — But
whether the impediment he universal, or versus
hane only; or whether the fault thereof hath
been born with him, or done to him by vio-

as long as persecution lay heavy upon the
church, and before the empire became Chris-
tian, the church did not meddle with anything,
which drew a consequence after it of posses-
sion*, or inheritance, as marriage doth ; nay,
even divers hundred years after the conver-
sion of the emperors, the judgment and deci-
sion of all such questions did btill remain in
J'oro civili, till the popedom began to wax great,
and assume, or rather usurp to herself a
supreme and independent judicatory in all ec-
clesiastical causes : and therefore the Fathers
and Councils had no occasion to make mention
of that which was not de.prefori at that time.
— And besides, that is an evil argument to say
such a thing is not lawful, because the Fathers
and Councils made no mention of it: for you
know much better than I, divers and many
points betwixt the Papists and us are never
mentioned by the Fathers, because they could
never have dreamed that such questions would
arise; and therefore are the Fathers exact oply
in such questions as were agitated upon the
state at that time, as ' DeTrinitate, de duobus
' in (. hrUto Naturis,' and such like : and there-
fore it insufficient that there. can be nothing
found which may justly he .understood to con-
tradict this opinion. — And it is very probable
(as I said before) thit this trick of maleficivm
Jiad not thru been put in practice in the world,
and therefore not known or mentioned by
them; for uhv may not the Devil us well
find out new tricks of witchcraft (when God
will permit him) as he did daily new sects of
heresies ? For his malice can never end until
the end of times. — To the fifth Argument, my
former answer doth al>o serve; for till the
400th year after Christ, it may be that devilish
trick came ne\er to be discovered. You know

lence, or fallen unto him by disease, or dispro- j the old Proverb, ex matin muribus bona leges :
portion, or inaptitude betwixt the parties, or j and it is not unlikely that the time of darkness
unnatural practices, that is ever par ratio, he is ! gave the Devil occasion to devise such new
eunucfius vtrsus hanc et omncs alias, seeing to \ tricks (look my Duemonology) ; and yet was
him only was she married. — Then pan Late rati- ! that law for which you cite Ilircanus, by Charles

onis, such nullities are grounded upon the afore-
said wairant of Scripture, neither had Christ
any occa-ion to speak of the Jews marriage
concerning muleficiwn versus hanc; for though
it be apparent that God made king Ahimelech
and his servants unable to abuse Sarah. Abra-
ham's wife, and so was he made by God hira-
self cunuchus versus hanc, and that it be not
improbable tint the devil being God's ape,
should imitate God's works, by his filthy witch-

tile Great, who in many great points (as you
know) had so great liglil, as 1 do scarce term
this time a time u( blindness : but howsoever
the darkness was in points of super>tition, I
will strll maintain (as I have ever done) that
for matters of order and policy, all the world*
shall never be able tu find out any so good and
so old an order of argument to be ptit in the
place of it : in sign whereof there is no well go-
verned commonwealth in the Christian world,

craft, by making such as God will permit him, '' wherein the common-law is not received to
unable versus hanc : howbeit, it is very proha- ,' judge in questions of that nature ; and it is cer-
blc that it was long after that time the devil , tain, that this question now in hand, is only a
put (fiat trick upon the earth. — As for the third \ question of order and policy : for the ground* of
and fmrth Questions, what mentio: i the Fathers i this question, that the essential point oF ma-
and Councils do m<tke of male fie iam ret sus i trimony cannot be accomplished sine copula, \n
lianc, I answer, that it may he (if they were well j warranted by express Scripture, and confessed

searched) th.it either *onicthiug to this purpose
in them, or at the leu^t a/iqttid analogum, with
a pnritate rat ion i% or by consequence, may
serve to decide the question. — But leaving this
to search, my main Answer is, That we must
distinguish oft-times.: for in all the first ages,

by y.iursclf. — To your sixth Argument (or ra-
ther hope) 1 fear*that hope shall prove con-
trary to faith ; for as sure ns God is, tliere be
Devils, and some Devils must hare some
power, and their power is in this world, neither
are the hlect exempted from this power ; Job

801]

STATE TRIALS, 11 James I. 10:3— «» a Cutuc of Divorce.

[803

wm not, Paul was not : Christ said to all his
disciples, ' Cribraverit vos Sathanas ;' and it'
ihe Devil hath any power, it is over the flesh,
rather over the filthiest and most sinful (fart
thereof, whereunto original sin is soldered ; as
God, before and under the law, to >hew oflici-
akm of purging man's original sin, ordained the
pruputium of the foreskin : and to exempt this
of our profession from the power of witchcraft,
is a paradox, never ytt maintained by any
learned or wise man. — '1 hat the Devil's power
is not so universal against us, that I freely con-
fess; but that it is utterly restraiucd quoad ruts,
how was then a minister of Geneva bewitched
to death, and were the witches daily pHiiMied
by our law ? If they can harm none but the
papists, we are too charitable for avenging of
them only. — Satan is permitted to punish innn,
ai well fur his breach of the second as of the
first table, and thereof are we no less guilty
than the papists are ; and if the power of witch-
craft may reach to our life, much more to a
member, not so governed by the fancy, wherein
the Devil hath his principal operation ; and he
may so estrange the husband's affection towards
the wife, as he cannot be able to perform that
duty to her ; for that is. a common thing in
many men's natures, that they cannot do that
thiug but where they love, nor fight but where
they are angry. God keep us therefore from
putting the trial of our profession upon mira-
cles ; let the miracle-mongers live by their own
trade. — To the seventh Argument touching Re-
medies, what do you know, whether both parties,
or either of them hath used these means of re-
medy or not? And that special remedy should
be used publicity, for there I can sic no ne-
cessity; lor *Non interest reipuh. nee ec-
' clcs.' and private persons are commanded to
do their fastings and alms, secretly and in pri-
vate : no such cure also is likely to succeed
well, except the parlies own hearts and desires
be set thereupon. — And as for your Conclusion
upon your incormnodnm, whether upon his per-
son or the example, I can see none in either, so
as to the couple, between them marriage was
never accomplished truly ; they will perad ven-
ture both of them by the declaration of the
nullity be capable to accomplish marriage w ith
others, which they could never do between
tlieinselves ; wherein they may have the snti>-
faction of their hearts, and enjoy the blessing
of procreation of children. — And as for the
Example, the law shall be fulfilled with due
administration of justice, which cannot prove
for an example or precedent of a counterfeit
uu!li:y hereafter, 4 Anthoiitus facti,' or rather
4 n^n facti, sed luce claror* in this ca«*c, besides
tin* ninny probations and confessions of the
parties which have been taken in this process :
whereas by the contrary, they !«hall be forcibly
kept together, but never their persons or afi\ c-
tions, and they still be forced to live in perpe-
tual scandal, or misery, or both ; and what
such a kind of fo/ced continency may avail,
the monks continency may teach us : and for
a precedent in tunc to come, that reacheth no

VOL. II.

further, thau to open a way of lawful relief, to
any person who shall chance to be distressed in
that sort. — And for legal Doubts, they concern
none of your calling; if your conscience be re-
solved in points of divinity, that is your part
to give your consent to the nullity, and let the
lawyers tnke the burden of making that firm ;
and as for the triennial probation, I hope no
man can be so blind as to make a doubt, whe-
ther that be taken before or after the suit
begun : and in conclusion of divine solution of
tliis question proved dearly, that this resolu-
tion of this doubt, howsoever it was in blind-
ness as you think, that is now proved in the
greatest time of light and purity of the pro-
fession of the gospel. — And for your Extract
upon the late Divines Opinions upon this
Question, I cannot guess what your intent was
in sending them to me, for they all agree in
terms with my opinion : but there is such a
thing ns ' mulencium, et malcficiale versus
' banc;* and your very iutcrlude passages prove
that clearest : and for that advice concerning
the remedies, that is but ' consilium non de-

* cretum/ not imposing a necessity : but is to
be used by discretion, as occasion fhnll prove
and require it. — To conclude then, if this may
satisfy your doubts, 1 will end with our Saviour s
words "to St. Peter, ' Cum conversus fueris,
coufirmu frntres tuos ;' for on my conscience,
all the doubts I have yet seen, are nothing but

• nodos in scirpoquaerere."'

Notwithstanding the Confessions in the
Earl's Answer, the Court thought it necessary
to satisfy themselves of the truth by the in-
spection of midwives and matrons. Where*
upon it was decreed by the Court, that six
mid wives of the best note, and ten other noble
matrons, out of which they themselves would
chuse two midwives, r.nd four matrons, should
inspect the Countess, the Entiy whereof is as
follows :

" Tunc Domini, viz. Arch. Cant. Lond.
Elicns. Ciivent. et Lichf. Ca'sar, Parry, Donne,
Bennct, Edwards, habit a inter c >s privata de-
liberation e, ex numero matronarum predict,
elegerunt; the lady Mary Tim hit, wife of sir
Phuip Tirwhit, hurt. ; lady Alice Carew, wife
of sir Matthew Carew ; lady Dalison, wife of
sir Roger Daiiaon ; lady Anne Waller, widow.
Ex ex obstetricum numero, &c. Margaritam
Mercer ct Chr stiunam Chest. Et assign a runt
procuraUirem dicta; dominx 'Francises ad sis-
tend urn hujusmodi inspect rices coram reve-
reudo P litre Episc. Loudon. Caesar, Donne,
&c. inter racteros nominat. isto die inter boras
quintain & sextam post meridiem, juramen rum
in hue parte subiturns, atque inspectione facta
fidcliter relaturas earum judicium juxta earura
sciendum et experientiam, &c. coram dictis
Domiuis delegatis, sicut pnefertur, asstgnatis
quam cito fieri possit ante horam quartam ct
sextain post meridiem diei Jovis proximc, alio-
quin ad comparand, hoc in loco, coram Com-
missariis dicto die Jovis inter horas quartam
et sextam post meridiem ejusdem diei, earum
judicium banc in parte tunc relaturas, et ad

3f

803] STATE TRIALS, 11 James I. 161 &— Case of tin Countess of Essex, [804

in teres sendum hora ct loco respective praedictis,
ad videnduui inspcctrices pnedictas iuramento
in hac parte onerari; nee non quibuscunque
uliis diebu» hoi a et loco prsdictos dominos
Commit saiios nominat. dictis inspectricibus, ad
referendum earuin judicium assignat."

Accordingly between the hours of that day
aforesaid, were preseuted before the delegate*
the said Indie*, and sworn ad inquirrnd. et in-
spiciend. 1. Whether the lady Frances were a
woman fit and apt for carnal copulation with-
out any defect, which might disable her for
that purpose. 2. Wuc ther she were a virgin
carnally unknown by any man. Whereupon
they went from the presence of the Commis-
sioner* into the next room where the countess
was, who was 1' ft, alone with the said ladies.*
Alter some convenient time they returned, and
dclivtred in their Report under their hands;
al! ptrsous beini; removed except the Register,
that so the ladies and mid wives might moie
freely drliiur their secret Reasons, &c. which
wc:e iivit lit to be inserted into the ^Record;
and i i.is is in stun their Report :

1. T. at they believe the lady Frances fitted
with abilities to have carnal copulation, and
apt to have children. 2. That she is a viigiu
uncorrupted.

And to corroborate all this, the countess in
open court produced seven uomen of her con-
sanguinity, 'lhat inannuch as the truth was
best known to herself, sho might by virtue of
.her Oatli discover thv frame, and her oath
should be no farther rt«rurded than as it was
confirmed by the oath of her kinswomen. In
order hereto the Countess took an oath, That
since die earl was 18 years old, for three years
he and she had lain in bed, &c. as in the Libel.

And then the seven noble women, viz.
Katharine counts s of Suffolk, Frances countess
of Kildarc, Elizabeth lady Wulden, Eli/. -lady
"Knever, lady Katharine' Thymic, Mrs. Katha-
rine Fiennes, Mrs. Dorothy Ncale, being sworn,
deposed that they believed the same was true;
and iin particular because, 1. That after they
were both grown to years of puberty, they
both endeavoured copulation. 2. That not-
withstanding, on her part, as appeared by the
inspectors, she remained a Virgin uncorrupted.
3. That the Earl had judicially sworn, That he
^— — — "^— ^—— — — ^— — »— •— — — »— i— — ^»^m»^— — i— .

* .Some Authors say, that t! •• countess, un-
der a pretence of modtbty, having obtained
leave t > put on a veil, when she was inspected,
caused a young woman of 1j. r nee and stature,
dressed in hvs clothes, to stand the search in
her place. Sir -Anthony Wehhm, p. 81 of his
" Court and Character of Kinji James," posi-
tively aiiinus this, vouching his authority in
these words: " If any make doubt of the" truth
of this story the author deliver* , upon the repu-
tation of a gentleman, he had it verbatim, from
n knight, sir W. B. (otherwise of much honour,
though the very dependauty on that family
may. question it) which did utJierthe lady into
the place of inspection, and hath told it often
£p Ins friends in mirth."

never had, nor could, nor should ever know
her carnally.

The Sentence.

Whereupon the Delegates declared the law
to be, That impotentia cocundi in viro what-
soever, whether by natural defect, or accidental
means, whether absolute towards all, or re-
spective to his wife only, if it precede matri-
mony, and be perpetual (as by law is presumed,
when after three years trial, after the roan is
of the age of 18 years, there has been nil ad
copulam, and the marriage not consummated) is
a just cause of Divorce d vinculo matrimonii;
and that the Proofs produced in this Case were
abundantly sufficient to convince them, of the
Karl's Impotency; and therefore pronounced
Sentence that they should be divorced from
each other, and be at liberty to marry again ;
which Sentence was as follows :

' That Robert earl of Ebsex, and the lady
Frances Howard, contracted by shew of Mar-
riage, did cohabit in one house, and lie toge-
ther in one bed ; nudui cum nuda, et solas
cum sola ; and that the said lady Frances did
shew herself prompt and ready to be known
of him, and that the said Earl neither did nor
could have knowledge of her, although he did
think himself able to have knowledge of other
women ; and that the said lady Frances by
inspection of her body by midwives, expertin
matter of Marriage, was proved to be apt for
carnal copulation with man, and yet a virgin :
Therefore we the said Judges deputed in the
Cause, first iuvocating the name of Christ,
and setting God before our eyes, do pro-
nounce, decree, and declare, That the earl of
Esrex, lor some secret, incurable, binding im-
pediment, did never carnally know, or was
or is able carnally to know the lady Frances
Howard: And therefore we do pronounce,
have decreed, and do declare, the pretended
Marriage so contracted and solemnized dc
Jaoto between them, to have been, and to be
utterly void and to no eirect, and that it did
want, and ought to want the strength of the
law : And that the lady Frances was, and is,
and so ought to "be free, and at liberty from
any bond of such pretended marriage, de/actof
contracted and solemnized. And we do pro-
nounce, that she ought to be divorced, and so
we do free and divorce her, leaving them ns
touching other marriages to their consciences
in the Lord.

' Which cur definitive Sentence and Decree
we ratify and publish. Thomus Wint. ; Lancel.
F.ly; Rich. Coven, and Lichf. ; John Roffen.
bishops. — Julius C&sar, Thomas Parry, Daniel
Donne, Doc tors/

The following Commissioners could not agree

'i this Sentence, and therefore absented them-

elves. George Cant. ; John London.; bishops.

-John Bonnet, Francis James, Thomas Ed-

ards, doctors*.

Dec. 5. Soon after this Sentence, the

countess was married to the viscount Roches*

tcr, lately made earl of Somerset.

•05]

STATE TRIALS, 11 James I. 1613.— mi a Cause <f Divorce.

[S06

The foregoing Account of the Proceedings between the Earl of Essex and Lady Frances
Howard, being but short and very imperfect, wanting the Arguments of the Civilians, fyc.
the following Account, written by Dr. George Abbot, Archbishop of Canterbury, with the
Speech he intended to have made, and King James's Letter to him, will throw much light
*pon that affair, and lielp greatly to erplain it.

Memoiuais touching the Nullity be-
tween the Earl of Essex and his Lady,
pronounced September 25, 1613, at Lam-
beth (and the Difficulties endured in the
same), by George, Archbishop of Canter-
bury.

BEING at the Court at White-Hall, on the
18tb of May, 1013, or thereabout**, his majesty
moved me, that 1 would be a commissioner in
a controversy to be begun bt tweeii the earl of
Essex and his lady for the separating of them ;
and when his* majesty had ended those few.
words with me, my lord chamberlain, who was
then in the gallery, spake also unto me to that
purpose. 'It was unto me a mutter very strange,
having heard before of some discontentments
between that noble couple ; but nevtrr imagin-
ing that matters were come to thut head. My
answer was alike to both, " Thut 1 did not
koow the ground whereupon they intended to
more ; but that, if I were to be a judge in any
such question, I would pruy, that other bishops,
being near the town and court, might be joined
with uie." The persons that were named then,
were, my lord of Loudon, my lord of Ely, and
my lord of Litchfield (for at that time was my
lord of Bath with the queen's majesty at Bath).
Besides, I prayed both the kino's majesty, and
my lord Chamberlain, ' That before any such
ibiugwere entered into, 1 might speak private-
ly with my lord of Essex, for the satisfying of
mine own mind;' which by both was permit ted
unto me. The day after I sent for the earl ;
and having private speech with linn, only about
the ability of his body, and nothing else, I found
him generally much reserved in talk, but only
stowing the ability of himself for generation ;
ind thai he was resolved never to lay any ble-
mish upon himself that way. I knew not well
what to make of this ; for I did not then under-
stand, that some lords had met before at White-
Hall on both parts, (the lord privy-seal, the
lord chamberlain, the earl of Southampton,
tod the lord Knowles, as afterwards I heard)
to settle an order by consent, how this prose-
rution should be ; that is to suy. That a separa-
tion should be made, and my lord's honour
every way preserved.

Within a day or two, coming to White-Hall,
I had speech with the lord chamberlain, in the
gallery going towards St. James's Park. I
might not reveal all particulars of that which
massed in private ; but yet 1 told his lordship,
4 That I had spoken with the earl of Es»ex,
sad I perceived it was like to be a matter of

The CASE op ROBERT Earl of ESSEX, and the Lady FRANCES HOWARD.

ereat difficulty, and therefore wished his lord-
ship to be well advised, before any thing was
brought into publick." I told him, ' That he
must proceed either upon confession or proof:
that it was probable, the earl would not con-
fess his own impotency, for then he bleinisiied
himself: that my lady's oath in that case was
not sufficient ; and how other proofs might be
had, I could not conceive : that the earl
in open estimation was to be thought an
able man ; that his father was not thought
in that kind unsutBcient.' The lord cham-
berlain replied, ' That, perhaps, the father's
sin was punished upon the son : that it was
truth, that the earl had no ink in his pen :
that himself had confessed, that he could .not
know a woman, and that before divers noble-
men, and some of them his own friends, nam-
ing, as I remember, the earls of Northampton1
and Worcester, and the lord Knowles.' All
this while 1 never dreamed of* impoteutia ver-
sus banc', but conceived, that, they would
charge the earl simply with disability. The
lord chamberlain then seemed unto me fully
resolved to proceed, and told me whom he
would have in the commission, tin! bishops of
London, Ely, and Litchfield, die two Chancel-
lors of the Excheqner and Dutchy, my Judges;
(for so he culled them) sir Daniel Dun, sir
John Ittnnet, Dr. James, and Dr. Edwaids. I
told his lonUhip, ' That I liked the persons
very well.* The next news I heard was al out
a day or two after, ' That the commission was
out under the great seal;* which I wondered at,
by reason that I thought, that my words to the
lord chamberlain being well weighed, would
have moved some longer consideration. Well :
the commission i* brought; it is accepted, and
proceeding decreed; the earl of Essex is call-
ed ; the libel is put in. When wc saw it, and
thut it contained ' impotentia versus hanc*, mo>t
of us, who were not acquainted with the pro-
ject before, were much ainaztnl at it. I told
the counsel for my lady, ' That they had laid a
very narrow bridge for themselves to go out :'
So said mv lord of London, and dixers of the
rest ; only my lord of Ely was still silent. . My
lord of Lirchlield, two several times, uttered
speeches, us much grieving and repining at this
controversy : * Thut he was ordinary to the carl
of Essex, and had been in his house at (.'hart-
ley, which he saw to be well governed; and
the carl did bear him.-elf most religiously there-
in, to hi» <*reat comfort: that his wife had the
honour to be cousin-geimun to tho countess*
of Suffolk; and therefore he had uo reason but

S07] STATE TRIALS, 1 1 James I. 161 3— Gw of the Cbwfr* qf Encx, [806

to wish well to the earl of Essex and his lady
both. Yet, if he had been worthy to be con-
salted withal, he >lioald hare thought that seven
years had been little enough to have delibe-
rated, whether it were fit to bring such a busi-
ness into question before the world.' Another
time he told us, ' That it was very good, that
we should proceed with great wariness in this
cause : for, saith he, ' the world looketh on us
what we do; and there were not more eyes
upon the earl's father losing his head, than
there be upon die earl now losing his wife/
He told me afterwards, ' That he had ill-
will for those speeches, and complained that
some among us aid tell tales of all that was said
and done.' (And so it appeared afterwards,
that sir J. Caesar and sir" Daniel Dun did.) Sir
Thomas Parry, in all his speeches, privately
murmured against this nullity, till he came to
Windsor : where, the day that the king heard
us, the lord chamberlain, m my presence, spake
privately with him and sir Julius Caesar about
this matter; and from that time forward, Mr.
Chancellor of the Dutchy was altered. My
lord o£ Ely, also, for a great while, was in dis-
like of the separation, (as I have credibly heard
he opened himself to sir Henry Savile) until
such time as the king spake with him, and then
bis judgment was reformed. But truth it is,
that among us he said nothing.

Now the earl's answer is taken, which ap-
peareth. In it there were divers things very ob-
servable. He used no ill speech of his lady, for
which we all much commended him. I gave him
so strict a charge to speak the truth, requiring
him, as he would answer me before God, at
the last day, to deliver nothing for favour or
affection, but to inform us in the verity, that
it wrung from him something which I supposed
he intended not to speak so plainly, lie gave
the reason of his having no motions to know
bis lady carnally, and of his thinking that he
never should, ' When I came out of France, I
loved her ; I do not so know, neither ever shall
1/ When he was to answer to the article, that
she was ' Virgo incorrupta ;' he smiled, and
said, ' She saith so, and she is so for me/ Sir
Daniel Dun catched these words, and bid the
register set down then, ' credit articulum esse
' veruro/ These things gave me no great en*
couragement to the business ; but yet being at
very little leisure, I let matters go on, and in
mine own part resolved nothing. Then the
witnesses were deposed, but not published.
The inspectresscs were chosen, who came most
unwillingly unto it; and howsoever sir Julius
Cesar and sir Daniel Dun, whom we never
suspected to be as parties in the cause, as af-
terwards they appeared to be, made all clear
and fair weafher; yet my lord of London told
us openly, * That he being with them, fuund
that the ladies knew nut well what to make of
k; that they had no skill, nor knew not what
was the truth ; but what they said, was upon
the credk of the midwives, which were but two,
and I knew not how tampered with/ Then
cjum the lady Frances to take her oath, with

the seven Compurgators. I noted thereto
some things. A paper was brought, contain-
ing, verbis pracisis, what her ladyship would
swear. We saw it, and considered it, and
found it too bare and slight to enforce any
thing. The commissioners advised, that it
should he more full. Dr. Steward accordingly
drew it ; but he must go forth to the lady, to
know whether she would swear it. At last it was
agreed unto. When she came to subscribe it,
after the oath taken, one or two of her brothers
standing at her back, put her in mind that she
must not write her name Frances Essex, which
she most willingly remembered, and subscribed
Frances Howard. We saw my lord of Litch-
field's wife to be one of the seven. We were
afterwards informed very credibly, That the
lady Kncvet had declared her sorrow, that she
was used in such an action, and said, * That
slie wept all the day about it/ These thinp
pleased me little, that nobody took comfort in
the business.

Things go on in a course till Midsummer day.
Then did the king deal with me privately, as if
he had received divers complaints against me.
The first was, ( That we delayed die proceed-
ing,, inasmuch as the meeting was put off, from
the 18th of June) till the 3d or 3d of July/ My
answer was, * We liad rather gone too fast :
we had sat forenoon and afternoon. The
term now grew to an end, and we had many
businesses to dispatch of the king's : That the
! com mission day for qautes ecclesiastical was.
put off for a week, by reason of Midsummer
day falling on a Thursday; and consequently,
that our proceeding in this cause, which com-
monly attended tlie other commission, was of
necessity to be deferred/ But my principal
answer was, * That we could not shorten it ;
for the counsel on both parti had agreed upon
that day in July, and so it was uoou the' acts :
howsoever, therefore, the counsel for my lady
mored openly in court to abbreviate the time,
yet the counsel for my lord would not renounce
nor alter their term probatory, but kept them
close unto it/ Another objection was, * That.
>I acquainted not the king, from time to time,
■how matters did go/' I answered, * That i
knew not myself: for as yel there was no pub-
lication of witnesses ; wlien any thing came to
' my knowledge, his majesty should understand it/
It was added, ' That divers persons repaired
unto me, w}k> wished not well to the business/
•* Belike/ said I, ' they mean the earl of South-
ampton, who came in tlie other day, when w«
were all sitting together : but his coming waa
about John Cotton's cause ; and I never had a
word with him in all my life, touching this bu-
siness/ * No/ said the king, and smiled, ' it ia
sir Henry Nevile/ ' Indeed/ quoth 1, ' he waa
with roe tlie other day, and this very morning :
but your majesty well knows what was the rea-
son. It was touchiug that cause, which your
majesty commanded me to send for him above.
I delivered him your mind the one day, and km

Save me an ain>wer the otter.' At this time,
is majesty cast out some words, as if he wiifceA

STATE TRIALS, HJ.nesI. I6|J.— in a Catac tf Divorce.

[810

0 tlw nullity ; but it was so obscurely, tint
d not conceive that earnestly he desired it.

jiday, (lie C' i!ii plaints writ nan* winch
'* made W the km); a^unst nic, mill many
[* •ere used, anil divers tricU ■-■■
to urge me to yield io tlie nullity. Une was,
' Th»l I should suffer the earl of Essex to go
out of town.' 1 answered, ' He had made bit
answer, and had his proctor, and it was out cus-
tom then not to stay nan.' Hit majesty com-
manded me Id inquire, ifbjt prtsence were not
necessary ; mill it' it were, lies I fliotild m iv
bin. 1 sent to sir Diimcl Dun, to sir JnhuBcn-
nri, Md U Dr. Steward ; ami they nil agreed,
tint there was mi need of lus lurdshifi'-i tui;r;
n town. And ot" thi* 1 sent word to the bird
rlain ; and my lord of Essex was per-
il depart. One while it was given out,

1 was incm.il by the ipi.vn to cross them ;
ill Utah, 1 had Dot spoke with lier therc-
; toother while, that 1 hi ,

1 of Essex at lint, and hence his lofdstiip

m pliable; when they knelt about what

, (ri a Inline. Ami it ins

m, th.it when I pi»e chaise to iV

Elf to Burner truly to the portions in
the libel, I named i he cn.^e of my lord of De-
vonshire and the lidy Rich, at if 1 had ram.
ptrcd thucoou unto thcin. When afterwards
toe earl's counsel took exception to the libel, it
~ out, that tbcv were animated by me
; wlicreas I never spake with thorn,
i heir purpose. And ever
.ire were delays used. Vea,
to ray lace dtluwrtd as a threat, tlmt

ibop tinudul lind been overthrown for

in| consent to the divorce of Dr. Julio,

■yinr, tlmt the sitine would be my caw.

it this time, the lords, mid tlie rest of the

1 to meet at Mr. Sutton's hospital,

the sattlmg of it. The day tlmt we were

ne thither, my lord cbarnberlaiii, io the

fiallery at Whitehall, shewed his anger to.

" 'i»il not sent lor the keys to

it he night deliver over the

Hot "hen I cnine to tin- L'haiter-ltniise,

slivered me a letter, written ull with

M hiiinl, and directed to the lord

the load chancellor, And the lurd.

. wherein lie did twice take cucp-

tar by name, and, in a sort, braved me,

: :i oiiii i id to me ; where-

replied nni, but bora it with patience.

■"' before Whit-uutidc, Im loniihip was

to me. and i.f hi; 0*11 accord profl'cr-

taialirral Greenwich, wl

ml hat after twice proffering
my accept ilia; of die same, bit lord-
nft strangely, iuii.1 I mi • 1

:ii Find rhrenlstntidenie
not well ; for what needed
, iti a matter ofjiittire?
Tin Inn* now grew on, tlmt lii» majesty was

to ea abroad no day, winch

.unset for my lord were
D their arttwers mid exceptions to the
' | teal ilnwed me a letter

of the king's to his lordship, « herein lie wu to
WpOHUllM »'tli me for delaying the business.

I £hyc hit lordship answer what was done, and
ins bnMiip | .'..slied, aud

I I .lit ho i tCtuU J., DUN ihun 1 did. Uii the

Monday, the counsel lor toy lord put in ibex
answer, winch »u round mid pfcqoMt, The
lord CwU&berlein bud notice of n, and cora-
plained thereof to the king. I tent his majesty
the copy thereof, and received from the king a
latter written m with bis utmosty's. ow bund,
shewing dislike thereof. At thin tine, sir Win.
Button threatened >ir Daniel'* Servant ImrJ lor
thai answer, a* tin: t*jd sir Danid divt-rs ivuks
after told me. Tlie rnirnnraainratn coawiered
of the answer, nnddtaiill-

that uo record should remain ■■( it, hut thai it
ibould be utieik detiiced. This "us vt-iv well
accepted, Bin! DAW tie. In J QJ I uiiltihuiy wiu

rln. ii- follower) gave oat, thai tha :

two letters so Icbnoled tilt •• re h bishop, iis he
was never schooled in nil his hit.

Thiuus no* heiut ijiitrt, I caUed m W:illiiun

Button oao coHiini.»iun-djy uutu me, and

spake thus to him t ' Sir WdUam Button, you

.1 tins business fioin tha iirst. and

have beui present at the acting ef nil ihin^.

Have yon ever seen uie, in "oid or deed, do

i hi ihith not become tur f i IV in-

i I had no wiy dedar

bectuisf we wne not contr to consider of the

proofa.) 'Whrttisilip"ibi-<:;i.iv 1 ■*

llitis Ciiuithiiiied upon, ibut I .en t mn.- iln,

ba .|.ne; :' His inn.* i. r unto tue was, ' Tlat't
die hinl i.linintlll i_aa>JM BH every HM » kind fu-
(Jut to his children ; but in tins of lua daugh-
ter, he WHS |0 pnvMollatc till it J.Li- 1

Ml ii- I i H on » i-rid-Iron, hruding till the
matter were accomplished.' Quoth I. • It
shall not he delayed hv me,' Now, the coun-
sel on hoth sides drew on to inform III, where-
in I noted, that whereas the libel was laid in
nature of niuUjkittm Html Aoic, uiy lady's
counsel, upon the shutting up of tlie cauae,
wuuld not apply thcitiselve- tliertuiil", n-.nht-i
would they >i illtngly bear of it ; winch seemed
strnoge, since all the books which they brou^iw,
particularly to the cause, did mention iltat ;
and Doctor Steward hud publicly and aiprea-
atteejlaie. ' I hm it «■!« that which tbey did
mean.' This troubled me somen hit, because
I percciicd that the* themselves could not tell
what to make of it. But ulleinanls Ml nut
anotl*r mullet, winch lety much alirnitrd
my judgment frotu the chujc : It appeared,
thut sentence could mil be »» m, till liic tunc
tlmt ihe kin" entetiii I i

us fur m W iiulsor, and then his majesty was.
Soon to depart t. i luuliiiin Sii Uiluiel Dun
told u«, * That he wa§ tu intend law Uag m
ppggSBMtj tliat he must bo tit Farnham ; that
ha Ml old and lame, thut it would be too
g"rit a trouble for linn !■'

tlie day of sentence' Hr ilurciine prnynl.
' Tint m* would bent him di-iner hiijud^mcnt
of the whole mutter,' Tins prolfer leemed

811] STATE TRIALS, 1 1 James I. 1 0 1 3.— Case of the Countess of Essex, [913*

wondrous strange to most of us ; and puttine it ' must not tell them, that it was fit for mj lord*
by handsome lv, we resolved not to trouble of Essex, but it is not so for too ; for the law
him therewith : And in this opinion »e amse. knnweth no person*, but is indifferent to all.
But afterwards, my lo;d of Litchfuld tometh If 1 then repel them, 1 must shew a reason:

Your ease is not like that of id* lord of Essex :
tor his case was thus, wars is thus. And so
must I delvr r the reason, or men will not be
answered.' In this time of debating, I

to my study door, where I and my lord of Lon-
don were about another business, Mid telleth
us. That my lord of Ely. and Mr. Chancellor
of the Exchequer, were" very desirous to hear

sir Danitl speak; and that he, for his part, sir Daniel Dun, * I pray you, master of the re-
was of the mind that it would do very well, and quests, what examples have we of any nullity
therefore he importuned us both to eive con- in England, pronounced iu this kind? Might
seat unto it. We imagining no pre at harm a man see any precedent of it ? For I would be
could come there J y, u->e:ited, and the next loath to do any thing that never was done bc-
day i? appointed for chut purpose. There sir fore.' ' Ye«,' saitb he, ' there be precedents
Daniel comcth with a formal declaration, di- thereof. In Am>e of Clete's case we have an
vided into sit parts ; to every one of which he - example, and ai other in one Bury, wh»ch I
spake so largely, that with a little reply inz of have here in my book ;' and thereupon out of
ours, it spent a whole afternoon. Matters a note-book or his ovru, he rend now a line or
which £ most observed therein, were these : two, and then two or t.'.ree other lines in ano-
Ele told us. ' That by our commission we might titer place, and so forward. My answer wa«,
hear this cause Miiunianly.' He brought a ' I did not rnnk that king Henry's separation
book, ' That he. who bath power to hear a mat- ' from Anne of Cleve, was for any such mutter,
tcr summarily, is in nature of an arbiter chosen but upon a precontract.' I said. * King Henry
by both parties, and therefore may judje in the 8th was a strange prince in that kind : He
discretion, u> ho ^ia]l think fit;' a-.l nnre to ' put himself into many marna£t«; and when
that purpose. 1 thought with imnrlf, tbat this he becun that with Anne ot C'leve, he feared
was strange dvetrine in a mutter of m irriane ; lost the emperor, and kimj; oi Frauce, sltould
that as arbitrators, we might adjudge a wife to combine with the pope azunst him, and there-
bcr husband, or not tuijudge her, according to fore be was de*iro..5 t> *tien?then himself with
our discretion. In his discoursing of mv lord's ; the protectant princes in Germany ; and for
uu potency Tfrrus kanc, he beat upon the mat- \ that he thought thi< marriage was much De-
fer of tttuUtiaum, and yet by uo mean* he. hoveful. But aft.rwards crowing into peace
would have it to be that apparently. He in- with one or Iwtu of th )se princes, he grew
sisted much, * Tliat the sentence was to be ' sooa veirv or the marriage, I ecausc he liked
given in general terms, not naming any parti- ' not the woman.' But then I promised to con-
cular im potency.* I told h;m, * In such a sen- \ uder further of these two cases. This was the
fence, the worid look that we >hou!d yield a \ end of that day"* labour, which when at uightl

reason of that which we -did.* He lepiiid. ! had rcount-.d with myself, I thought it was an
' That it was lit to give no reason.' * And • audaci*/i:s |#.trt, for such a one as sir Daniel
here,* said Mr. Cbanctll jr of the I*".\» i:e«;-ier, ■ was, to tcr^'ii us out of such jwnr grounds, both
* a judge is uot to give a reason id'hissi-iU nee, ! what to d •, and how to •{•». I found by my
but only to God. I wouid give no ft-asm m ohs- rvat.o;!, that it whs a >er match, that thus
any prince in the w-urtd. 1 was once cailfd he -hnuid he heart.) ; th.it he was prepared for
before queen Kli/aheth. about a seiitenri which the pr.rj-o-e ; thr no man upon the sudden, or
I tare, and she demanded of me the rr -mi -11110 day's waniinz. cr.uld dt liver so much, and
liu-reoi ; I told l:er, *A indce was bound m *f* dise»t ed. Avi r.-^v I began to assure my-
g:vt no reason of th^c wLieh he proiumnte :f *.e!f, that r.e did .* >t *J.-.w I. mself a judge, hut
but only to Co-j." I marveled ni'.th a: •' i-e " *-a» a stickler for the ;i"..i ty. I much su^pect-
tu in £7. "and at hut replied, • We'd, let it be we ' ed the consume* of t:.e man. knowing huu
acquaint n«»r the wirid with ii.r reu»on 01 tir.»t reasonably \\c'A before, b t!i mit ot >n;ne own
which we d > ; yet i» it no; jit. tlut I who am ' e<t;iua;i »i» of i.i'ii.n: -i *wi el the judgment of
die iud^e, and mu«: pronounce ti:e sentence, » my two pre.ico*s->r*. :iie I-«rds Whituiit and
kn.j-.v the ground of lliat ulrch I am :•"» pro- ' Rincrofr, wh«i h» ' 1 Ii:m :i«r .1 man most corrupt.
notice?' Here, aKtr a ti tl<- pa.i*;n^. one of Vet the i;i\t dr. I v ; t «> t>> him tor his note-
ti:em ^aiJ. • Ye". fi«r %■ '1 iimv see that in the l»o^k. j:ui 1 i.«v»t«' riie ifcord o^ Anne of
Ui..ik* and del *..»il •«*. tjuoth I, • Km I can- l"evc 1 1 b; I r. «;' t «.:!ito me. Itcadi:ig over
mt M.-e :h.at tr.ere whirh may sati-ty uie- I-:: ;:u ihe lattrr, I tliu'.i-i »'••: one vtonl tending to
Mr. (■-..■»» it!!'»i.' said I. • »u.I Mr Daniel Dun, t e p;»>^nt case. iJ->»d h rd! thought I, hotr
c-j:iuii.««. -iiicr*. \ »i perhaps i>e net drucn iti do! h th:-» man dtvei^e hu ! IV ruling bi$ own
if. yet J sliail be :".»ve.i o' ::. *«^::\ to id! uumi \\ Is f«r that of l»u:v. I found tt to be nothing
i'u n.:* <n vi thesLiueuce : l\r as soo.i :^ tins but the pU'j^- «^ ■*' advocates on both sides,
1 iUsr' it >eutcncid. 1. very ::i.::i who is d:>vv»M- ^i.naUut: the tOA. >'X Kui. there was some
ttuied uith I is w;:c. a::d cverv wo:njn iLvou- ime^cion ;;; :i--.\".,'!,.iv vi- 1 kw cjurts about Burt's
len'ed wii\ her hr.<-.tr.d. which can lia\c an\ ii.nl. B:>rv h.i.'.^.:" tc :^ iie.id many years be-
reas>.::aL:u pretciK. c. *>.!. ;e;Mii to me 10: mu ft larr lUit I viw m.v-\- in this book against the
iiuiir..i;. W 1 vuid uuto theni. Iierc «di W cau*c ron 111 I :s t .1:1.:. than for it*; oud bv
K^jn^e \u>Uiiu;j> o;' i.u-mce* ; if I do u^ 1. I sumo other wruinci in my house, I discovered

i

S13]

STATE TRIALS, 1 1 Ja^ies I. 1(313.— in a Cause of Divorce.

[SI 4

that Bury's divorce, anno 1561, was for want
of his a — s ; which Dr. Steward also, being
now of counsel for xny lady, and who formerly
stood for Bury's brother, against the supposed
son, publicly acknowledged. • These tilings
made me in my heart much dislike the cause,
and procured in me a hand opinion touching sir
Daniel Dun, who should not have wronged me,
being my officer, as dean of the arches.

Within few days after, die message comelh
to us, that we were all to attend the kiug at
Windsor. This accordingly was done. The
morning before the hearing, the lord chamber-
lain in my presence spoke first earnestly with
the' chancellor of the Exchequer, and after-
ward with the chancellor of the Dutchv, who
that day fell from us, as appeared by the few
words that he had before the king. Some few
days before that, had sir John Bennet, by sir
William Button and Dr. Edwards been otlier-
wise dealt withal, earnestly to give consent to
the nullity; but that day we dealt in it more
than three hours. His majesty propounding
the matter, asked, * Ilow things did stand?'
Sir Julius Caesar said, " That sir Daniel Dun
was best able to speak unto it/ And then, ex
compoiUo, sir Dauiel begins, and tells a great
tale, and especially insisteth upon Non potuit.
When he nad done, I answered him, and
shewed the want of ground for that conclusion,
out of other the earl's evident answers, * That
tije Aivn potuit was for lack of love, and not for
want of ability.' I challenged sir Daniel for
abu>i:i;r tl.e king with a f-dse report, and espe-
cially tor his two precedents of Bury's case,
and that of Anne of Clevc. Amongst us, was
divers ways shewed the insutiiciency of the
pmofs ; that the libel was laid short to the
cau»e, and the proofs were short of the libel;
that we had very runny time?) culled upoti the
counsel fur uiy lady, that they should look that
they rightly laid their matter, nnd made their
proof strong; that, in the end, ihcy com-
plained not of tike judges, when the fault wus
hi themselves : (Where my lord of Litchfield
added, * 1 hat himself fearing the worst, had
gone to Doctor's Common'*, and warned the
counsel lor uiy lady, that they should look to
it.*) Among other things there uttered, sir
Daniel Oun said, What a disgrace will this be
to my lorJ chan.bcnain aiM his daughter, if it
should not new go forward !* My answer was,
' they should have looked to that before they
did begin it : we were not the men that set tin?
matter on foot; if it were a disgrace, they put
it on themselves. But/ quoth 1, ' must 1, to
save any man from disgrace, send my soul unto
hell, to give a sentence whereof 1 saw no
grouud } I will never do it.7 My lord of Lon-
don, sir Jo! in Bennet, and Dr. Edwards, did
carry themselves well tliat day, although sir
John Bennet hid much opposition from tlic
kins himself. When we saw the king earnest,
I fell down on mv knee, and with tears in mine
eyes, I said, ' I beseech your majesty, if ever
I have done vou any service, wliotn I do serve
with a faithful heart, or may do you any service,

rid me of this business.' 1 had said before,
' That I was the unfittest man that might be,
to judge of such a cause; I was no married
man, 1 was no lawyer, and I had not had the
time, by reason of my in6nite businesses, to
read so much of that matter, as other men had/
1 observed that day many things in bis majes-
ty's carriage of the matter : he was earnest, but
gracious and moderate. He found fault with
the libel, and said, ' that complaints were made
that we went too slow, but he perceived we
went too fast/ lie marvelled that my lord of
Worcester, and tlie lord Kuowles, were not
examined as witnesses, lie constantly pro-
fessed, * That he believed that my lord of
Essex was impotent for a woman/ He told us,
' that some of the earls friends had put a
woman to him, and he would not touch her/
His majesty said, * that the earl was once pur-
posed to have gone to Poland, to have tried
whether he might be un witched/ Touhich
things my reply was, ' 1 would to God kc
might see these things legally proved/ That his
majesty much disliked that course, and therefore
he set the course now in prosecution ; and
therefore if there were any error in it, he luul
done the lord chamberlain wrong, and he most
tike it upon him/ In sum, I found his majesty
much troubled what to d», us I gathered, espe-
cially by these words, ' if my lord of Canter-
bury, and my lord of London, have a negative
voice, we must either begin all again, and have
a new libel, or we must have a new commission,
and put other adjuncts/ The conclusion from
his majesty was, That we should all meet at
Lambeth on the morrow, and if we could una-
nimously consent, then go to the sentence ; if
not, we should put it oft' unto another day, and
certify him of it, and so farther understand his
pleasure. When the king was risen from hU
chair he fell to inveighing against these marry-
ings of young couples, before they be acquaint-
ed one with another.. He told us the inconve-
nience of it, how lie knew in Scotland a father
who married his only child to a man against
her will- that she withstood it; yet her father
forced her to marry him : that being gone home
with her husband, after a very few day:- she
run away from him: that her father jerked her,
and sent her home again : that not l<n g alter,
she poisoned her husbunH, and wus burnt for
it, while the king was in Scotland. After his
majesty's going out, I followed him, aud told
him, 1 evidently perceived, tint it was in the
earl of Essex, ' Yitiutn Animi noil Coiporis/
His majes'y swore he thought so. '1 here pass-
ed some other speech from the ki»g to me,
touching his own King with the queen the first
night that he married her. Hut at the last, I
k.^sed his hand and departed. After 1 was
gone, the lord chamberlain speaking somewhat
■against me, the king replied, * The archbishop
hath so adjured me to i>c rid nl" this matter,
that I cannot tell what to say to huii/ Tliis
did sir Julius Ca?sar tell lire that day at dinner,
at Eaton-College, letting me know, that the
king found no fault with me. But afterward,

615] STATE TRIALS, 1 1 James I. 1013 — Case of the Countess of Essex, [816

the king coming to dinner, after his meat had
stayed tor him on the toble more than a quar-
ter of an hour, he sate him down in his chair,
and casting his leg over one side of it, he eat
no meat for a great space of time, neither said
he any word, but sat musing to himself; which
every man observed. And it was given out by
some in the court, that I was gone away in the
king's dUplcasure. Within some few days after,
it was also more ways than one brought credi-
bly to my ears, That the archbishop and my
lord of London should be hereafter kept to
their spiritualities, and should meddle no more

in temporal matters : and within a while it came answer unto them. This instructed me, that

so far, as that they should have their temporali-
ties taken from them. Sir John Bennet was at
Windsor moved by sir Thomas Lake in the lord
Fenton's name, and afterwards by the lord
Fenton himself, That he should alter his opi-
nion, and make his peace with the king, for
his majesty was not well pleased with him.

As 1 came homeward from Windsor iu my
coach, and all that same night, two things did
run much in my mind ; the one of them was,
what a strange and fearful thing it was, that his
majesty should be so far engaged in that busi-
ness : that he should- profess, that himself had
set the matter in that course of judgment : thut
the judges should be dealt withal beforehand,
and, in a sort, directed what they should deter-
mine : that the like example had not been
seen : that his majesty did win himself much
honour in the case of Sutton's hospital ; that
notwithstanding all importunity, he had suffered
the judges to do their conscience. This strange
moving to the contrary, did make me marvel-
lously suspect, that it was no direct matter;
and, as a dutiful servant to my most gracious
master, I wished in my heart, that his majesty's
hand might be taken off the business. 1'hc
other point was, that we had all this while, in
our de barings, never, or very little meddled with

two special points that afternoon : the one
was, that we all thought my lord of Essex
his answer to the libel was neither plain nor
sufficient. And now it was remembered, that
my lord of Litchfield had put to him certain
questions, that four things were necessary to
generation ; ' membrum virile/ erection, pene-
tration, and ' ejaculatio setninis ;' which, al-
though they were then smiled at, and since that
time much sport had been made at the court
and in London about them ; yet now our mar-
ried men on all hands wished that punctually
his lordship might have been held to give his

the proofs were not full. A second thing was,
that when towards the evening, I wished that
a reconciliation might be laboured between my
lord and my lady, that it should best become
us ; my lord of Ely, who from the first begin-
ning ot the process had been always very silent,
spake home about that, much disliking that
any such thing should now be sought ; that it
was too late ; that it might be the cause of poi-
soning and destroying one of another to brine
them together again. Well, when we could
not agree upon our conclusion, we were inforc-
ed to put all off unto a longer day ; and as the
king commanded, I was to certify his majesty
of it. 1 wrote a letter to the king, praying
humbly that I might be freed from the trouble
of this cause, or, at least, give no sentence in it
till 1 were a married man, and so might better
understand the business. I inclosed also six
reasons of sir John Bennet's, taking exceptions
in law against the nullity. And withal I joined
mine own reasons in divinity, of which I said in
my letter, that I knejw not where to seek an
answer to them; meaning, that the commis-
sioners had given me none. The*e reasons af-
terwards cost me a great deal of trouble.

The next progress in this controversy was,
that I was advertised, that it was his majesty's

never get in all our talking, though they would
never cleave fast to it. I therefore, having
formerly revolved some such things in my mit?d,
rose early on the day that we were to debate
things atlarge, and set down my mind in wri-
ting out uf something in divinity. The copy of
this appearcth. The day after we came from
Windsor, (being Tuesday) we met, and alf the
forenoon we insisted on that which I had briefly
written : but to deliver my conscience freely
before God, I received no kind or shew of sa-
tisfaction. My lord of Ely sat little less thnn
dumb, as if he had never dreamed of any such
matter. Divers of the commissioners wondered
at him ; that he, who had spent ?o much time
in reading of the canonists touching this ques-
tion, should not think upon divinity. Briefly
up and down by ojhers somewhat was said,
but nothing to contentment. Atlee dinner, sir
John Bennet propounded reasons out of the
law, but without any satisfaction. 1 observed

points of divinity. And 1 thought with myself, ■ pleasure that the cause should be put off until
that much might be said therein against Male- j the 18th of September; and witlial there was
ficium, and the nullity to be pronounced there- brought a new commission of adjuncts, where-
upon ' versus hanc ;' for out of this we could into my lord* of Winchester aud Rochester

were put. The day that 1 perceived this, ac-
quainting the two chancellors of the exchequer
and Dutchy therewith, in the gallery at Lam-
beth, 1 told them, " That I hoped now, that
for my pare, I should be freed from any trouble
therein farther, for I did desire to be rid of it."
They both answered me, " That they desired iu
like sort to bo quit of the matter." A good bu-

siness, thought J, that nuhody takcth comfort
of it, unless it be sir Daniel Dun; of whom I
forgot before to note, that on the day of meeting,
next after our coming from Windsor, he, with a
great deal of iusolency, challenged im> for my
speech before his majesty the day before. •* Do
not abuse the king, sir Daniel Dun." 1 remem-
bered it was in mine own house, and if I had
rattled him according to his deserts, my lord
chamberlain would have said it had been done
for his sake ; and in the progress, sir Daniel
having the kind's car, would have made things
worse than they wire ; and I therefore forbore

817]

STATE TRIALS, 11 James I. 1(513 — in a Cause of Dhorce.

[619

him with such patience, that some of the com-
missioners told me afterwards, that they won-
dered bow I could endure those behaviours, at
the hands of a man of his quality : But yet they
commended me for it. Now grew I to consi-
der what were the reasons why these two Com-
missioner* were joined to us ; and therein 1 hud
many advert isenients from divers friends, divers
ways. We resolved for my lord of Win ton,
that it was supposed, that there was no great
•miry between him and me: That when 1 was
Dean 'there, there was some disagreement be-
tween us, which they supposed yet continued :
That he had an old grudge to me, for having the
archbishoprick, which his lordship so much de-
sired. Besides, it was some tickling unto him,
that his gravity and learning should either win
in the archbishop, or lay some blemish upon
him, if lie stood out. Certain it is, that sir
William Button was with him ; and, doubtless,
would tell him how acceptable this service
would be to his majesty. 1 heard of good cre-
dit, and secretly, that he was put in hope to bo
made u privy counsellor ; and the fame was ge-
neral, that lor the father's labour the son should
be made a knight. It secmcth, at the iirst,
that he had no great fancy unto it ; but being
wrought upon, he consented ; so that he might
be required by his majesty to be present. This
was done by a letter from Salisbury, which, at
his being at Lumbeth, he shewed inc ; that I
should take notice, that he had not come, un-
less be had been commanded. 1 leave him for
the time, only signifying, that in the vacation,
be -sent for divers books from London, and had
Dr. Steward much with him, to inform him in
all particulars. Yet I may not forger, that
while he held off his consent, some hard opi-
nions were raised of him at court ; as I found
by a letter from my lord of JJtchticld to me.
lor there he was found fault with, thnt he at-
tended not the king at Farnham, or at Andovtr.
And there blame was laid, that Mr. Love, who
was so great with my lord of Winton, was like to
get the Warden's place at Winchester, Dr. Har-
mcr being reported to be dead. Concerning the
bishop of Rochester, it was well known that he
had opened himself before the king's going in
progress, that he liked well of the nullity.
Coming once or twice while we were about it,
he, with some in my house, disputed earnestly
for it. He was u great dependant or' my lord
of Litchfield. This was a way to make him
well esteemed, and to arise high in preferment.
But, in truth, he sltould not have verified the
report which archbishop Bancroft on his death-
bed gave of him, together with Butler and Car-
rier, to the kin:; by a message, unless he did
some such thing. When he was put into the
Commission, he in clivers places seemed to be
moch offended that he was made one. His
grief was, that he was set in opposition against
-me ; He would never give his voice to it, unless
I consented. These, and the like tumps he
spake, as elsewhere, so to some of my servants
in my house at Croydon: For, under another
colour, he came three times in the vacation to
VOL. u.

me ; but I never spake a word with him about
that matter, as knowing it wouM be an argu-
ment against me, that 1 laboured to draw away
the king's Commissioners : ami the end shewed,
that I had no great reason to trust him. Be-
sides these two adjuncts, the new commission
itself seemed very strange unto me. There
were ei»ht made of th j quorum; and it was
so laid, that if three of them, with two other,
consented, the sentence might be given ; so
that, by the words thereof, if seven had denied,
five might have pronounced and prevailed. A
matter so uncouth, that, as 1 credibly heard,
my lord of Winton himself found much fault
therewith. Again there was a clause, * Legibus,
' Statutis, Orcimationihus, Constitutionibus qui-
' buscunque nrn obstantibus ;' so resolved they
were to have it dispatched. Every thing now
stood a I. a pause ; and my lord of Ely (who, at
first, delivered his judgment against it to sir
Henry Savile, as T heard it avowed upon good
credit ; but afterwards said, he was better in-
structed by the king) began to hearken what
men said of the matter, as appeared by sfx>ech
which he had with sir John Peyton : to whom,
notwithstanding, he told some things of the in-
sufficiency of my lord of Essex. The weather
grew fair; he ho perl the overflowing of the Isle
of Ely would cca^e ; be would go down in his
visitation; he came and took his leave of me,
but not one word of the nullity.

Now was bis majesty abroad, and I had
more leisure to consider of this question, I read
what I could ; I conferred with many men
about divers circumstances, so to inform mvself
the better. I prayed frequently to God te di-
rect me ariiihr. I often perused the deposi-
tions, but I found little satisfaction. I per-
ceived most of the lords had a great dislike of
this proceeding: that the better sort of men
I had generally a drtcstalion of it; thnt the
jjudpis and lawyers much condemned it. I
I heard many strange storks of the lady's carri-
age. Something was freely spoken of a woman
arraigned at Bury ; a»d how to shut that up,
and so to free the earl, this course was con-
sented upon.

These things, though out of charity I enter-
tained not as absolutely true, yet the concur-
rence of them from so manv, made me that I
j could not contemn them, besides now griw
| the rumour strong, that a new husband was
readily provided for her: Whereof I called to
mind "the opinion of sir Henry Nevile, delivered
to me at Windsor ; and I tin] not fur»et a speech
of Overbury's once to mc in that kind. 1 un-
derstood, that at Christmas last there was a
reconciliation wrought between the earl and
bis lady, howsoever it fell our. Yen, that when
the lords met at Whitehall about the matter of
separation, there was three times that day a
likelihood to make them friends; which we
thought implied no disability of my lord of
Essex, even in their own opinion. I fan her
understood, that whereas it was whispered
among us, the commissioners, Hint at Christ-
mas la«t my lord of Essox being in bed with hip

r? «

819] STATE TRIALS, 1 1 Jam£s I. 16\3.—Case of the Cowiicss of Essei, [$20

lady should labour a quarter of an hour rar-
4tally to kuow her, and iu the eod should say,
" Fraukey, it will not be," and so kissed her,
aad bid her good night: That this was not
true; but that the earl, the lhght before bis
going from London, at the end of Trinity Term,
said, with tears in his eyes, " That when he
went to bed to her at Christmas last, he had
forgiven all things as clearly as he wished that
God should forgive him his sins ; hut when
they were alone, she reviled him, and miscalled
him, terming him cow, and coward, and bea*t ;"
And lie added, " That she was as bitter a wo-
man as any was in the world : Which tilings so
cooled lus courage, that he was far from know-
ing, or endeavouring to know her." These
matters, together witn the small joy which the
commissioners had to deal in the business, made
me have no great fancy unto it. On the other
side, I heard that my lord chamberlain, or his
followers, gave out, that what was done, was
performed by the king's direction, otherwise it
had not been begun ; and therefore, they ex-
pected that his majesty thould see it eilected ;
that they rested themselves on him. I was
much grieved that they had'this advantage on
my master, who being so engaged, as I thought,
could not well go backward or forward : And,
to iucrcase my sorrow, I was privately adver-
tised from court, that his majesty did mean
himself to give an answer to my reasons above-
mentioned. I heard another way, that his
majesty in the progress wrote much with his
own hands. From another friend I was told,
That the king, with his answer to the reasons,
had written to me a sharp letter. Yea, by
another I learned the contents of the letter,
which was full of sharpness.

These things in the summer kept me full of
expectation of some great discontentment. Yet
my heart still assured me, that I was guilty of
no wickedness. 1 found all persons wirh whom
I spake, of my mind, for the dislike of" the nul-
lity. In many businesses to and from the king
by letters, I found nothing but well. II is ma-
jesty sent mc warrants for three bucks, as for-
merly he liad d«ne, and with some kindness
joined.

Thus I was tossed in my thoughts; and in
nil my troubles I had recourse to God iu graver.

By this time, the lttlh of September draueth
nigh, and I am informed, '1 hat my lord of
Winchester, the Tuesday before, was come to
town; and that besides my lady's counsel, sir
Julius Caesar, and sir Daniel Dun, did, at St.
Mary Overy's house, daily attend his lordbhip.
J expected no great good of this: only from
the king I heard nothing but well. Tor some
few days before, his majesty had been at White-
hall, where I kiv*»d hi*> hand, and he did not
only look merrily upon me, but he gave mc

Eromise of the bUhoprick of Lincoln for my
rothe:, us I understood it. Some other mat-
ters also passed quietly in speech, and I found
no disturbance. Hut on the 17th of September,
the day Wore our new meeting at Lambeth,
ay lord ftf Litchfield being aen$ from the king,

brineeth diveis papers unto me sealed up. I
opened them, and found there my reasons first';
secondly, an answer to them*; and, thirdly, a
letter, ail written with the king's hand unto me.
I read them all presently, without any abate-
ment, where on to I was helped by my fore-
knowledge that Mich things would come. I said
little unto it; only I asked my lord of Litch-
field, " Whether he knew what those papers con-
tained r" lie told me, u That the kiug had read
unto him the answers to the reasons, and had
given him the letter to seal up iu a paper; but
m reverence to Ins majesty, lie held it not lus
duty to look into it." Growing afterward in
some speech of our not day's business, I told
him plainly, " 1 hat having spent much lime in
this vucaiiou, in perusing the books, I could not
find any where, but especially iu the answer of
my lord of K*sex, that which would give me
contentment." I read tlte places, and my lord
confessed with me, "That there was not
enough." He told me also, u That uiiless £
gave my consent to the separation, that he
would never give his." So much reverence in
him did I find both then, and divers times be-
fore, against this divorcement. At last he men-
tioned one thing which pleased me wondrous
well, and that was, That he sliould call for my
lord of Essex again, and new examine him,
upon some points to be farther declared, ad inr
fonnandum animum judkit. Tor hence, either
we should know so much as might persuade us
to decree a separation, or the world might be
satisfied that we had no reason for it. These
things thus settled, his lordship separated).
Then I withdrew myself to my study, and read
over again and again the papers from the king.
I found them very *harp, ami perceived by tlie
lime that they arrivtd unto me, that they were
detained till that clay, that I might be" over-
whelmed with them on the sudden, and have
no time to deliberate, before we were to come
the second time to bit in judgment. These
things did much trouble me, so that 1 did sleep
but a little that night. I revolved many thing %
and much tumbling I had in mv mind. It
grieved me infinitely, that the king should make
himself a party therein ; that some uuthankful-
ness, and other matters, weie little Jess than
reproaches unto me : Mclhouphu my faithful
heart to iny master deserved no such sharpness.
I devised how I might give the king content-
ment, and it wa> some comfort tome, that vtc
thought upon a course of new examining my
lord ill* Essex. Hut as things stood, 1 could not
force my cuiiscieuce, wluch cried upon me,
" That it uasan odious thing to God and men,
togiv<- tticliateutenct', without better warrant."
I here cast what might beful to the church in
uiy disgrace ; how Papists would scorn nt it;
how it might be my own ruin, and that divers

* See pp. 794,7 98, for the archbishop'* Rea-
sons, and the king'* An>wer to them : But the
king's letter to the archbishop is there omitted ;
but here inserted, after the archlrishop's in-
tended Speech, at the end of this cas*.

S21]

STATE TRIALS, 11 Jami:* I. Irtir*.— /w a Cause qfDu am.

[623

ways; a hazard to my friends, and to the c >m-
missiouers which were of my rnhni; how my
lord of London had a wile and rliiMicn, which
might all be overthrown at oi;o blow. Hut
alter midnight sleeping, towards the morning 1
considered on the other side, That my consci-
ence was more to me than nil th«? world ; that
it was a fearful thing, in place of judgment, to
give a sentence against mi no own heart ; that
Olivarius, the chancellor of France, upon such
an occasion, grew mad, and died in it ; that
the manner of our sentence must be, ' Solum
' Dfum pne oculis ha hemes, a rei veritate in-
'specta: All which, and the like meditation*,
did much preponderate with me. Thtrii 1 slept
again, and now rising, I found mv hrart much
settled, to persist in that which I held to be
truth. I poured out earnestly my prayers to
God, and was now strongly resolved to leave
all to God, remembering, 1'hnt lie hud preserv-
ed me from my mother's womb ; that lie had
from time to time rid mo out of all mv troubles ;
that his power was the same still ; that he would
never forsake me, if l turned not from him. I
forgot not, u That the hearts of Lin 55 were in
the hand of the Lord ;" that I had experience
of the graciousness, both of God and the king,
the year before ; when standing earnestly in a
good cause, that prince Henry should not marry
a Papist, 1 received some sharp words from the
king tor my labour ; but the next day hi* ma-
jesty used me very kindly again. To this I
added, That poverty, imprisonment, death it-
self, were things contemptible to a resolved
mind : that some of my predecessors, as arch-
bishop Cranmcr, and my lord Grindul, had
given Rood examples of these suffering*, and
they were recorded in the catalogue of the
righteous. These thoughts thus revolved, I
readagnin the letter from the king, and drawing
out into a paper all the sharp words, I con-
sidered them again and again, and methought
they were not altogether so bitter as I appre-
hended them ; that they were wrung from his
majesty by my lord chamberlain's importunity ;
that my master had deserved at my hand*, that
1 should bear patiently twenty times more ;
and that all was nothing, so the clearness of
my conscience might be preserved. With
these resolutions on the Saturday 1 came to
Lambeth, where I met with the news of Ovcr-
bmYs death, and the sound of some fearful ap-
prehensions thereupon bruited about the city.
I made trial of mv lord of London's constincv,
telling him nut ccdendum, aut cadendum. 1
found him most resolved, avowing unto me,
u That if he should pronounce for the dissolu-
tion of the marriage, he tiiought the devil would
that night fetch away his soul/' Yen, he was
earnest on rnc to persist where I began, telling
me, " That the eyes of the whole church of
England were upon me, and expected of me,
that I should shew myself a worthy man/' At
list we came to sit, where my lords of Win-
chester and Rochester took their places. The
commission was read, the fact, and manner of
the process was opened, aad nothing notable

done, saving that mv lord of London proposing,
that it was tit that my hud of Ls-cx should be
called to explain himself farther, for the fishing
out of the truth. All the commissioners most
williiiiily assented thereunto (;.c-n, my lord of
Winchester and Rochester expresslvj, saving
sir Julius C'irsar, who softly declared his dislike
thereof, in my hearing. When the court wns
risen, I spake with my lord of Litchlield, and
not thinking lit to return any thing to the king
in writing, I prayed him to acquaint his majesty
how things stood ; and to tell him, that upon
this course of new calling my lord of Kssex, [
hoped iu the end, we should give his majesty
satisfaction. The Sunday I spent at Croydon,
and preached ou that text of Christ's raising the
widow's son of Nairn, to the great comfort of
my own heart. That day I conferred with a
friend, and settled sonic courses, if any trouble
should befal unto me. I was also by a good
friend informed, that my lord of Essex, on that
Sunday morning, bavins five or six captains and
gentlemen of worth in his clumber, mid speech
being made of his inability, rose out of his bed,
and taking up his shirt, did shew to them all
so able and extraordinarily sufficient matter,
that they all cried out shame of his lady, and
said, That if the ladies of the court knew as
much as they knew, they would tread her to
death.

On the Monday we met at Lambeth again,
and information was given on the part of my
lady. These things passed tpiictiy. When the
court was risen, my lord ol Litchfield toid me,
That ho had made his majesty acquainted with
our proposition on Saturday ; but that his ma-
jesty was strongly against it, my lord of Kssex
should any more be called, and that by no
means he would endure it, for that perad venture
the said earl, either being provoked by the late
challenge between him and Mr. llcury Howard,
or otherwise instigated by the earl* of South-
ampton, might speak somewhat which might
inarr the business. This made me still suspect
that all was not right ; and I replied to my
lord, " If that be denied us, and we have no
fait her proof, I shall never give sentence tor the
nuli.ty : As good declare my mind at first, as
at last, and I pruy you x> acquaint his majesty.''
When f went homeward, I much revolted this
in my heart, thinking, good I<ord ! W hat a case
is this ? Shall any truth be kept from us ? Are
they afraid to have all out ? Do they Only h»uk
to attain their own end-, and core not how our
consciences he enlanulid and ensnared? On
the Wednesday wc met ncain, and now Dr.
James is come to us, and by and bye Cometh
in my lord of Li y, who, us it seemed, had meat t
to have kept hi in away, but the king sent in
express messenger for him, requiring lum, by
letter, to be there 011 the Tuesday night. Now
are we plena curia. Before we sate down, sir
Thomas Lake'delivereth a message unto me
from the king, that his majesty desired a speedy
end of this business ; that it had hung long, and
the world was in expectation of it; that the
term grew on, which would be full of btisi-

*m ■

623] STATE TRIALS, 1 1 James I. IGIS; — Case of the Countess of Essex, [884

nesses : That his majesty on Monday was to go
to Windsor to meet the queen, and my lord
chamberlain with him; that therefore he would
have us to fall close to our work, not to trouble
ourselves on the morrow to come see the king,
who would come late to Whitehall, because
some ceremonies were to be performed, as upon
the last day of hunting ; that we should not at-
tend his majesty till Friday, but that the sen-
tence must be given on Saturday. My answer
was publicly, " That there should be no stay in
we, and that therefore on the morrow we would
sit forenoon and afternoon, if the commissioners
so pleased ; and if they thought good, L would
not refuse to sit until midnight.'* But iu mme
own heart I perceived, that all the care was,
that the matter might be dispatched before the
queen spake with the king, whom they supposed
not to wish well to the business. We go to.
our court, and sir Thomas Lake stayed to hear
the information on my lord's part. It was
strange to see how my ford of Winchester car-
ried himself that day, partly to play his prizes
before sir Thomas Lake, who might make re-

f>ort of it to his fame, and partly to shew his
lid i magisterial deposition, lie snapped up my
lord's counsel, that they could not speak a word,
but he catched it before it was out. " I know
what you will say," when indeed he knew not,
neither was it any such matter as he imagined.
God Almighty will tell you a tale for that; " 1
tell you, Dr. Bennet, 1 have us much law as
you, I am as good a lawyer as you are." He
fell divers times on my lord of London per-
sonally, and would needs know of him openly,
" How umny times in a year a man was bound
carnally to know his wife ?" In a word, with
scoffs, and imperious behaviour, he played the
advocate all that day, to the great offence of
the standers-by, so that it was publicly spoke of
iu London, which, I think, came to his ears ;
so that ever afterward he carried himself more
tractable. I was forced to bear it, because of
avoiding new complaints.

The point most observable that day, was,
th it both my lord of Winchester, and my lord
of Kly, did deny maleiiciation, so that by no
means they would have this question to pro-
ceed in that nature, which I openly did thank
them for, and bound it upon them, before all
the commissioners and slandcrs-by, telling
them, ' That the same was my opinion/ But
I asked my lord of Winchester, who sat by me,
4 What he then held it to be r' He told me
privately, ' That he held it to be a natural ini-
potcucy, which w:i«. before the marriage/ I
asked him, ' What that might l«, and whence
lie gathered it?' He answered, * 1 have heard
diver.- particulars, which are enough to per-
suade me, if they be true.' * Yea, my lord,'
said I, « if they be true, I have heard us many
to the contrary. 1 wish that wc might exa-
mine whether they be true or no; that were
fair proceeding. It is my grief that it is not
permitted unto us, to try whether all these
matters be so or not. This might satisfy a
Mian's conscienct .' So we parted that night.

On the Thursday at ten of the clock, we met
iu Lambeth-hall, where my lady's counsel, took
on tiiem to answer some scruples objected by
Dr. I errand. But Dr. Martin, when nobody
spake of it, fell to wipe away that objection,
that my lord had not sworn, cum sept una manu.
Upon his speech, the commissioners took hold
of it, and it then being urged strongly, my
lady's counsel stood at first, as if they had been
blasted with lightning. Afterward they grew
extreme angry with Dr. Martin, that be had
proposed it ; but the issue was, there could no
answer be given unto- it ; but in the sight of all
the standers-by, this was broke oft with shame
and confusion of faces. We dined not that
day ; but about one or two of the clock we
withdrew ourselves privately into the parlour.
I had thought there to have had Dr. Edwards,
and the rest who liked not of the nullity, to
propound their doubts, and so in order ; and
last of all, I would have spoken. But there I
found a contrary course resolved, wluch my
lord of Winchester seemed much to dislike.
But my lord of Litchfield, sir Julius Caesar, and
sir Daniel Dun, had set the clock, and they
must have their will. The six reasons are pro*
duced, which sir John Bennet had delivered
the day after we came from Windsor, and the
copy whereof was by me sent to the king. All
these must in their order be debated. One
was about the unperfectness of the libel, m
which we all received satisfaction, that the li-
bel was well to so much purpose as now they
declared they would have it. The other five,
my lord of London, sir John Bennet, Dr.
James, and Dr. Edwards, maintained : I al-
lowed of three of them absolutely ; and the
other two, that was inspection of my lord's
body, and a time to be assigned by the judge,
to try whether they might carnally know one
another, I held to be tit* w hen those reasons
were proposed ; but now such names and quar-
rels were arisen, I thought not amiss now to be
for born. My lord of Litchfield, with a pen,
did note what every man resolved, but princi-
pally my words, with a purpose to shew them
to the king, as I conceived, and afterwards I
found it to be so. I was desirous therefore,
that his majesty might see I was not obstinate,
but settled to yield to reason. And again, I
supposed that this candour of mine would
make some of them yield to us, where they
saw there was unevitable truth. But I found
it far otherwise; for our afternoon's work was,
that they gave shu filing and shitting answers to
the objections, such as themselves hud studied
all the vacation ; but no care was, whether
they were true and satisfactory, or not. And
to what sir Daniel proposed, all seven of them
consented, without sticking or scruple, so that
1 might imagine it was a set play. Upon the
first scruple debating, sir Julius C'xsar finding
the dill ere nee of opinions, and that our law-
yers stuck strongly unto it, * Let us,' saith he,
4 put it to the question, and let the major part
ot voices determine it.' When I saw this to be
the proceeding, the Lord, thought J, deliver

625]

STATE TRIALS, 11 James I. 1613.— in a Cause of Divorce.

[826

me from such judges ! But jet, observing their
manner, 1 po^essed my soul in patience.
When it grew co be dark, that the king might
understand that I was willing to allow time to
all that might be said, I remembered sir John
Ucnnet to rend the sentence of the Rota Ro-
inaua, where, in the pope's own consistory,
about the year 1585, a judgment was reversed
which an archbishop in Spain had given for a
nullity, in a case being ours altogether, because,
after the triennial cohabitation, he had not as-
signed a time for the married couple to make
trial again, and to use rusting and prayer. This
repeal was read at large, and so was another
of the Rota, in the same kind. But both these
were slighted, as matters of » nothing, and so I
think had St. Paul been, if he had been there.
I urged that of Alexander 3. That even in
France itself, no nullity had been allowed ; but
that it was Consuetude urnerulis EccUsia Gal-
licane ; and that EccUsia Romana did know
or practise no such thing. This was blighted
like the former, and I perceived it was but in
vain to speak to them, for they were resolved,
and be it good, or be it bad, the matter should
be done.

On the Friday morning I went to Whitehall,
and looking somewhat heavily, the king cometh
to me, and to my lord chancellor, and olfercth
us both his band to kiss. He might perceive
by my countenance that I was not a little
troubled, and that was perceived by divers of
the lords, who privately let roe know their
minds, that we had a foul and strange matter
in hand at Lambeth. At hist, the king takes
me aside, and after propounding three or four
harnesses, walking, he took me to the window,
and asked me, c How that great cause did go
forward ?* 1 told his majesty, * That I had no
liking of it ; that I had received a letter and
writing from him which very much troubled
me, for I knew myself to be his dutiful servant,
and had not deserved ill of him ; that it was
nothing to me whether she remained wife to
toe earl of Essex, or were married to another
man ; but that I might not give sentence where
I saw no proof; that I had lived 51 years, al-
most, and had uiy conscience uucorrupted in
judgment; that I knew not how soon I was to
be called before God, and I was loath, against
that time, to give a wound to mine own soul ;
that all uiy grief was, that his majesty's hand
was in it ; that for other men I cared not ; that
1 chose rather to die an honest man than a wise
man ; that he roust never afterward expect
true service of me, for how could I be true to
him, who was false unto God ? That if he
marked it well, this was no time to disgrace his
good servants -.' I told him, ( That if his ma-
jesty pleased to let the matter alone, as he did
all other causes, I would make good my part
against all England, on the peril of my head/
The king answered, 4 That I would have no
lawyers.' I replied, ' Yes, enough, there is
not. an honest lawyer in England that would
not be on my bide.' His majesty asked me,
1 Whether the rest of the commissioners, yes-

terday, did not persuade me?' I told him,
1 No ; but their dealing rather drove me the
contrary way. For (said I) 1 came thither in-
genuously to yield to any truth that should be
shewed roe ; but they, on the contrary part,
in a factious course went wholly together, and
what one said, another said, be it well, or be
it ill, without any scruple.' To my speech,
* That it was an exumple that never had been
in England ;' the king said, * Yes, Bury's case/
I beseeched his majesty, * That he would not
believe that cause to he any such matter ; for
if he would pardon me, it should not he long
hefore that I would shew, that his separation
was for lack of his s — s.' In this debating, the
king was very desirous to know, what should
l>e the reasons whereupon I stood, that I might
have satisfaction. My answer was, ' That
when I was in place of judgment, I would not
conceal the reasons of my sentence, but it was
to no purpose to speak them now ; it would
but put his majesty to a new trouble to hear
them, and then some man must answer them,
who looked to his own end, and to make a
plausible answer, which would not content mc,
without ground of truth/ A great part of the
time, that 1 had this speech with t'ie king, my
eyes were full of tears, which I saw much moved
my gracious master, and especially my earnest
desire, * That I might do my conscience/ I per-
ceived the king was much overcome by this my
honest dealing: And then, whilst his majesty
went to speak with my lord privy-seal, and my
lord chamberlain, who stood all this while at
the farther end of the gallery ; and to whom, 1
conceived, the king told much of that which I
had spoken ; I went my ways to Lambeth, to
dinner. Now grew I confident to do my con-
science right, whatsoever came of it. That
day I dined privately ; but yet my lord bishop
of Bath was with me, whom when 1 had ac-
quainted with so much of the cause as I thought
lit, I -received no discouragement from hiin.
My heart was much eased, and now I thought
I should no more be troubled. Yet between
three and four o'clock, after dinner, my lord of
Litchfield cometh to inc from the king, and
bringeth a written treatise upon the present
argument, which was the work of a Scotchman,
I know not who. I received ir, and promised
that night to read it ; as indeed I did, riding in
my coach to Croydon ; for thither I thought
fit to withdraw myself, though it were late, for
avoiding of more perturbation. This treatise
no way pleased me ; but I thought it the work
of some hungry fellow, who lacked 20 j. to buy
food to his belly. Here, finding it the day of
the end of my quarter, I settled much of my
domestic business. I forgot not to commend
myself, and the whole cause, to God by prayer.
I meditated many things iu my bed : in the
morning I rose early, and before day, in my
study, I set down some heads, what I would
speak unto. Then went I early to Lambeth,
and there supplied my brief notes, digesting my
matter of sen l ence into order; being resolved
to speak large, and home to the cause, wiihou,t

S27] STATE TRIALS, 1 1 James I. 1 (3 1 3<—Casc of the Countess <f Essex, [629

touch of any person more than I must needs.
By this time most of the commissioners were
come. I sent for my lord of London, sir John
Bennet, Dr. James, and Dr. Edwards, singly
and severally into my study : I required them,
before God, not to speak any thing fur respect
to me, but to do that, which in their learniug
and conscience they thought to be just, and to
speak that intrepid, without blemish to any
man, but soundly to the matter. I found them
all avowing, that in their souls, they found no
warrant for the nullitv. I then wished seve-
rally, Dr. James and l)r. Edwards, to deliver
their sentence, with some reasons adjoined, not
many, but of the strongest. I told sir John
Bennet, that this day I expected he should
•hew himself a worthy roan, that he should de-
liver his judgment pi r externum ; that they had
laboured to blemish, his skill, and to slight his
learning especially; therefore, both for his
conscience and bis credit, he should shew what
was in him, to maintain an honest cause. If
fcir Daniel Dun, and sir Julius Cstsar, who
came after him, should bespatter him in their
choler, or lay any imputation upon him, he
should find that some of us would take it off
him* To my lord of London, I said, " We
have iliree that speak first, who, I trust, will
lay such a foundation in the hearts of the hear-
ers, as shall not be removed. But the other
Side have this advantage over us, they are seven
of them, lawyers and bishop*, to answer what
our three have said ; and, perhaps, with weak
men, such a stream of such persons may much
prevail : but let not that dismay you, my lord,
only take this course : deliver, first, your own
meditations ; and then, having taken with your
pen some of the absurdities, which, in the sen-
tence, some of them will deliver, blast those,
and let the auditors see, that by you the stream
is turned. Then leave it to nic, and I doubt
not, in Almighty God, but to batter their nul-
lity to dusU that, though they have it by the
major part of voices, yet the world shall see
what the cause is, and they shall have little
comfort by it. I am very well provided ; I am
no way afraid ; and you shall see I will not be
tongue-tied/' So confident was I in the ho-
neM y of the cause, and in the helps of Al-
mighty God, that i was not now afraid of ten
thousands of people ; but did long to be at the
business, as the Lord truly knoweth.

When now I was nlone, revolving my medi-
tations, sir Julius Caesar cometh into my study
to me, telleth roe, ' That he wondered that
my lord of Winchester was not come ; that it
was even ten o'clock ; that therefore it was fit,
that the hour should be continued from ten to
twelve/ I assented thereto ; and by some of
the commissioners the time was prorogued.
Then cometh in sir Thomas Lake, with a mes-
sage from the king, which he must not deliver
till all the commissioners were come together.
So he was forced to stay. Between ten and
eleven cometh in my lord of Winchester ; who,
as afterwards found, had been all the morning
tt the court. I told bim, * Wt had stayed

for him two hours and a half/ His lordship
slightly excused it. Then, in the gallery, sir
Thomas Lake told us, ' That his majesty had
sent him unto us, to deliver, two things/ The
one was, ' That in our sentence we should take
heed of gauling of any person/ My answer
was, ' That from the beginning of this process,
we had ever been wary not to offend in that
kind ; and that he should be much to blame,
who in the conclusion, would transgress that
way/ And so said the rest. The other was,
' That we should not in any long manner, but
compendiously, deliver what we had to say/
I prayed sir Thomas Lake to explain that far-
ther, whether we were only to say yea or no,
and no more : for I would obey the king's
commandment.

' Tu, Regina, jube, mini jussa capessere fas est'
He answered, * That he could not say so, but
that we were to speak briefly/ * Yea,' but said
sir Julius Ciesar, ' I know the king's mind ; for I
was yesterday with him, and he told me, that
be expected we should go no farther than yea
or nay, for of reasons there would be no end.
Yea, saith he, the king told me he was pro-
mised so much/ * By whom ? ' said I. * I think/
quoth he, ' by your grace/ ' Not so,' said 1 :
but I said, indeed, ' Let every man deliver bis
own conscience, I will not perturb the sentence.
No more indeed will 1/ Then he replied, * I
know the king expecteth we should say no
more, than I do like this sentence, or, I do not
like it. And that you know, sir Daniel Dun,
is the manner of the delegates, and not to go
farther/ ' It is so/ saith sir Daniel. Upon
this the bishops all said, ' We were best to
proceed in that fashion/ To which I replied,
' I will not be wilful ; but if it be agreed upon,
and it be the king's pleasure, I will obey. But
look you to it ; for if any man give a reason, 1
am no more bound than he, but that I will
return the reason of my opinion and judgment/
They all said, they would be observant of it.
Thus sir Thomas Lake was dismissed. Then
we called for the sentences on both sides,
which the counsel had ready. They disliked
that which was absolutory of the earl of Essex,
and we approved it. We found fault with the
other sentence, anuullatory, both for the whole,
and because some parts in it, in our judgment,
were apparently false. But they persisted in
their intention. So we went into the hail,
where myself, my lord of London, sir John
Bennet, Dr. James, and Dr. Edward?, freed
my lord of Essex. The bishops of Winton,
Ely, Litchfield, and Rochester, together with
the two chancellors, and sir Daniel Dun, pro-
nounced for the nullity, and subscribed the sen-
tence, my lord of Winton pronouncing it. We
perceived that they were afraid we should at
large speak our reasons openly, being the last
who were to speak.

The three bishops of Winton, Ely, and Litch-
field, went immediately to the court, hoping to
receive great thanks for their service, bat they
waited a full hour ere they could speak with
the king; however, they sped afterward. And

6i9]

STATE TRIALS, 1 1 James I. 101 J.— in a Cause qf Divorce.

[SSO

we were glad tliat we were freed of the trouble, i
And now, I, who would not have given the '
Sentence for all the gold in India, do expect
God's pleasure, what will become of this busi-
ness hereafter, and submit myself to God's
providence, who ever preserve! h thoso that
trust in him.

" This narration is wholly written with mine
own hand, and was finished the second of Oc-
tober, 1613, being die eighth day alter the
giving of the sentence. And I protest before
Almighty God, that I have not willingly writ-
ten any untruth therein : but have delivered
all things fairly, to the best of my understand-
ing ; helping myself with such memorials and
notes as 1 took from time to time, that if there
were occasion, I might thus at large set down
the truth to posterity, when this case shall be
rung from Rome gates, or the fact hereafter he
questioned. Geokge Canterbury."

Some observable Things, since September 25,
1613, when the Sentence was given in the
Cause of the earl of Essex, continued unto
the day o'' the Marriage, December 26,
1613.
The Sentence being given for the Nullity,
the minds of men in their several places were
wondei fully distracted, and every one spake
according to their fancies. But for the most
part there was a detestation of the thing, and
a great dislike of those that gave the sentence,
which was expressed by all courses that men
durst adventure upon. On the other side, there
was a strange applauding and commending of
those who withstood the separation ; and from
all parts a testimony came unto them, that
they had done like honest men, albeit the only
scope which they aimed at, was the discharge
of their conscience, and not vain popular ap-
plause. The archbishop, the day after the sen-
tence, went to the court, to Whitehall, and
waited on the king to chapel, standing also by
him in the closet, where he was strangely looked
on by the king, as he was ah>o by some of the
lords; but nothing being said unto him, he
took no notice of it, but bore all patuutly.
This sTrangeness of the king held on at Hump tun
Court, and elsewhere; and it came to the
archbishop's ear, that the king spake divers
limes hardly of him, but muchmngnified them
of the ariinnative part, and especially my lord
of Winchester, as the worthiest man in the
kingdom. Somethings were done al-o in re-
cotnpeuce to divers of them; as sir Julius
Cesar's son v+us made a knight, my lord of
Wint oil's son also had the same reward, which
s>me merry fellow blighted with the name of
sir Nullity Btlson ; and the bi«hop of Litchfield
must remove to Lincoln ; and as for Litchfield,
it must be bestowed on Mr. Dean of St. Paul's,
that so doctor Cnry might be preferred to the
deanery of Paul's, for which it was generally
supposed lie should pay well. But now it run
current, that the archbishop must no more have
to do with naming any to churclfr-livings, but
some lordi in court should dispose of all ; and

principally it must be provided, that Dr. Abbot
must never he preferred, no, not so much as to
Litchtield, so far was he from Lincoln, which
was formerly promised unto him. These things
grew detestable to the people, who feared that
even religion would smalt for it; but the par-
ties most maligned were silent and patient, ex-
pecting God's leisure, and malice enough from
some other men. The first thing of bitterness
that appeared, was a letter from Royston,
under the king's hand and signet, directed to
the commissioners in the former sentence, but
brought to the archbishop about three weeks
after the sentence. This was a most sharp
letter, complaining that they of the negative
part, for so they were stilcd, had hindered the
act to be made upon the sentence ; had so-
lemnly protested against that which was done ;
had given unto themselves other titles than
were in the king's commission ; had glorified
themselves in that which was done; by which
they laid an imputation upon the king's consci-
ence, who had declared himself for the divorce,
and other things of the like nature. This
letter being read to the commissioners, the '
archbishop said, that he knew not what it
meant ; for be understood of no man that pro-
tested, nor knew nothing of any man's arro-
gating of titles to him, or glorifying himself :
and as for die act, he supposed it -to be made
up in common form, and never heard aught to
the contrary, neither meddled with anything
therein, but left it to the Register, and what he
had done with it, be could not tell. Further-,
more, he asked all the commissioners particu-
larly, if they knew what this meant, or if any of
them were able to charge those of the negative
with the points quarrelled at ; who all, with
one consent, denied that they could, and ex-
pressly averred, that tliere was no such thing
done at the time of the sentence as had been
.complained upon. When standing thus in ad-
miration, sir Daniel Dun took upon him to un-
derstand the matter, and said, that if the re-
gister were called, it would appear there was
something in it. Barker, the register, is sent
for, and being demanded whether he had made
up the act, he said, that he had drawn it up in
a form that he liked, but some other of the
commissioners did dislike it. And thereupon
he shewed two forms, the one more large, the
other more brief ; but both of them having in
it, that the arclibh-hnp, and the rest of the ne-
gative party, protected aguiutt the sentence.
Here every man wondered ut him, out of w hat
ground he should do !his; and all the commis-
sioners, with one consent, very much rebuked
him, professing that there was no such protes-
tation used. For the rest of the charge in the
king's letter, Barker freed all in all things, save
only Dr. Kd wards, who was absent by reason
of his sore eyes. The archbishop, upon this,
desired the commissioners to suspend their
judgment touching Dr. Edwards, till he might
answer for himself; saying, that honour, jus-
tice, and charity, required so much in his he-
half; and adding withal, that he doubted nut

831 ] STATE TRIALS, 1 1 James I. 1 6 1 S.— Cue qf the Countess qf Essex, [832

but it would prove some mistaking of the re-
gister's part, to whom it was apparent that
small credit was to be given, since he had so
grossly set down of them, that they protested,
when all the commissioners could witness the
contrary. Moreover, he desired Mr. Chan-
cellor of the Exchequer, and sir Daniel Dun, to
certify the lord Chamberlain, how free and in-
nocent from those aspersions the rest were
found, and that from top to toe it was nothing i
but misprision. Before this truth was disco-
vered, it was known that a gentleman of the
earl of Northampton's had said to sir John
Levison, and that, as from his lordship, ' That
there was something descried, which would
break the archbishop's back:' such account
was made of this -business.

Thus tilings passed silently until the next
week, when, upon the Thursday, bting high
commission day, Dr. Edwards being amended,
repaired to Lambeth. His coming was watch-
ed ; and then was delivered to the archbishop a
second Utter from the king, commending the
concurrence of all to the act, to be made up in
common form ; but requiring the commissioners
to convene Dr. Edwards and the register before
them, and to charge them with all the fore-
remembered matters, and to learn where the
fault did lie. It was also commanded that they
should require the said doctor and register, to
set down in writing what had passed between
tliem ; and if it were found that Dr. Edwards
were to blame, he should be suspended till the
, king's pleasure were further known.

These things are fallen upon; and Dr. fid-
wards shewed that the register had wronged him,
and that no part of the accusation was true, in
rnodo ct forma , appealing to the commissioner**,
what faith might he given to Barker contesting
against him, when it had been manifestly proved,
that he had forged the matter of protestation
against my lord of Canterbury, my lord of Lou*
don, and the rest. Time is assigned to them to
deliver in their writings; and accordingly,
about two days after, Dr. Edwards bringeth to
the archbishop his answer, denying the points
whereon he was accused. But Barker brought
nothing till a fortnight after; and then, by
candle-light, when the high commission was
men, and the commissioners were departed, he
delivercth a long writius to the archbishop, who
could not read it that night ; but reproved him
for detaining it so long.

On the morrow, my lord of Canterbury
periled this declaration : and as he found it to
be uncertainly and diffidently set down for
some other ciicumstuuces, so he discovered
there one thing much to be observed, and that
was, that Barker delivered. That some few days
after the sentence, the lord chainberl&in sent
for him, liuding fault that the act was not made
up. And there speech was That some desired
to have their titles put in, us well as the titles of
others; and for that, Barker named sir John
Beunet. Whereunto the lord chamberlain said,
" I know no title that he hath :" u Yes," said
Barker, " he is judge of the prerogative court of

Canterbury." But Barker concludeth the nar-
ration, That himself fiudiog that he had named
sir John Bennet unjustly, therefore was in mind
to excuse him, and was abont to say, that he
had done him wrong; but the lord chamber-
lain was so angry that he could not brine it
forth ; but went his way, leaving the lord in
that opinion.

By this it was descried, that in the first
letter sir John Bennet was aimed at, as well
as Dr. Edwards, to put some disgrace upou
him, which made men wondrously marvel at the
vindicative mind of some men, who sought for
an occasion to do other men disgrace. The
end of the matter was, That no man could be
touched ; and therefore the archbishop, taking.
sir Julius Cesar with him, acquainted the king
(who was now returned from Royston) with the
state1 of the whole matter; informing his ma-
jesty, that fault fell on no man save the regis-
ter; and therefore, if his highness were phased
to have him punished, it might be so : But for
the thing itself, since the report was more than
there was cause, Mr. Chancellor of the Exche-
quer said, It was better to let k die, and stir
in it no further. To this the king assented,
being not willing that any punishment should
be laid on the register: whereby it appeared,
that the intendment was, in the stirring of these
coals, to have burnt some greater persons than
Barker, the register.

All this while it was confidently given out,
That because the sentence had been opposed,
there should a book be written in the defence
of it ; and one \\ hile it should be by a divine,
and that sometimes was mv lord of Winton,
and sometimes my lord of Ely : and it was said,
they were earnestly about it: Another while,
it should be by a Civilian, and then sir Daniel
Dun must do it : But at oilier times it must he
by a Scotchman, who had written somewhat of
that argument before the sentence ; and other
while, two Scotchmen must join together about
it : And to make the thing the more probable,
che loid Felton sent to the archbishop tor the
ropy of the Scotchman's writings, which was
sent unto him ; and after copying of it out, it
wus returned to my lord of Canterbury again.
This speech of a book continued about nine
weeks in all; but at last Dr. Stuart, and Dr.
Bird, were sent for to the lord chamberlain,
and their judgment was asked concerning that
point. Their adwee was, Thai it should by
no means be meddled withal, but that things
should die of themselves: But no questioning
by writing; for so it might go on to the world's
end : for one book might breed another : and
so, they whom it concerned should never be in
rest. This was resolved on ; and afterwards
there was no morespcech of writing, saving only
faintingly and whimperingly, but nothing to the
purpose. It seemed that the commissioners
who were for the nullity had enough of it, and
desired no more to bring themselves on the
stage, being so by all men exclaimed upon for
that which they had done.

The bishop of Wiuton, after the aentenot.

63S]

STATE TRIALS, 11 James I. 1G1S.— in a Cause of Divorce.

[634

went down with great jollity, full of hope nnd
ylurv; hut within a while aiier he grew much
d-mnted, as wniie about him, and namely his
own rl.i lighter, reported ; for he heard many
»n\» of i he strange detestation which liie world

afterward it was bruited, the second time, That
my lord of Canterbury h:il nwn linking satis-
faction in the matter; anil mv lord of London,
on sue.li a Sunday, had come and submitted
himself to mv lord chamberlain, ami Uie rest

had ot'iLc deed; and the nick-ii:nniim of his had relented. Nay, it %vei.t so far, that Yd-

*■>:) mm h nllccted him; Hut his ithcrtLsenunrs virion, the king's bolicitor, and *i great elepen-

lroib sir Kit hard Norton, his son in-law, did dent upon the house of J-ullolk, told Mr. I've,

much trouble him: Tor sir Hichurd wrote the counsellor, and Mr. Cholmtly, the earl of

divers times from London to his wife, That he Essex's solicitor, coming unti him about books

fonld come iii no place, but his father-in-law
was; railed upon : 1 hat men told him, th it he
tho*?i»lit he had a wife, but it was no longer
than my lord of Winton pleased ; for whenso-

told Mr. John More, of Lincnln's-lnn, divers
lime*, u Thar it was such a disgrace unto him
to hear how The world talked of that sentence,
that although my lord of Winton promised to
give him, his wife, and family, their diet aud
entertainment so long a«> he lived, yet he would
get him to his own house, ai d livcthcre, where
he lrid means sufficient, and not he subject to
that perpetual scorn, which would follow him
so long as he remained in his father-in-law's
company "

By these, and the like passages, it was
guessed, that the rest of the commissioners,
who were tor the sentence, had little comfort
in thcmvelves of that which they had done.
On the other purr, the archbishop, and tho*e
wh ; stood with him, had thci: houoty mid jus-
tice sounded rut ci cry day more and more?;
and many mc>~agi\s were brought them, and
divers letters wntten unto them, or shewed
them by some friends, from j-».:r.dry of the
bi?hof 5 in tho hnA, from the univcr^ties. from
many g.lly preachers out of all parts which
was an exceeding cou*ol.itinu unto tin in, among
die many frowns which they did bear. Th.it
there was an universal roncurrcnec oi'a'l hone si
men to approve tlr.it which they had done. .And
die :irchb:*hop had pm.itely, from many "real
Mir* in court, aud uoMesaml worthy pcisouage-s
elsewhere, such significations of their good ac-
ceptance which he did, that it 'cheered him
iiinrh inwardly, and he wtis nothing dismavcel.

VI 1*1- *

.\o»*, about the middle cit" November, the
wheel wa:» turned about : for since nothing
could begrimed by speaking hardly of the nega-
tive part, the*y thought, they would make use of
them another way, nnd that should be by mak-
ing the world believe, that tiVy had now given
approbation of the fact. And (hereupon it
»»% in court and London, asscverantly given
out, nnd the fame of it went far and near, That
the nrchl.Miop, and the n st, alKr more mature
deliberation, had tc«»ifitel their concurrence
with flie re*r of the commissioners, and all now
were of one mind. Men did not hastily believe
Ihij; but ytt diiers or good rank cuine and
•ent to the archbishop and the rest, to know
whet tier tho«e things were j-o or no. And when

to be drawn up, for passing back the jointure
of the laely I'raiirctfs part, and the portion of
the earl of Fstex's pan, " That the gainsaying
commissioner* were now consenting, and the

iter was come over:

ever he o Tended him, he could make a nullity. I great man beyond the wate
between them. Besides, the said sir Richard which he knew so assuredly, that lie had seen it

ratified by the subscription of the archbishop and
the rest." Yea, further, he added, " That
there was great renstm, at the first, wherefore

my lord of Canterbury, and the others, hhould
stand against the separation ; for tbey had just
cause, at the first,- to fear that this tact might
be drawn into example, and so marriages ordi-
narily lie \iolnted; hut now it was resolved
that no more such should be permit'ed, and
thereupon they absented." These things were
inforccd to he endured with silence, for the
avoiding of clamour, and making of trouble.

But now behold an admirable device of the
bishop of Litchfield, which shewcrh what his
own opinion was of the validity of the sentence.
I will set it down as it came to be acted.

On the CJtJth of November Seurle the proc-
tor comcth to my lord of Canterbury at Lam-
beth, and bringe'th with him a writ of Certio-
rari out of the Chancery, directed to the coin-
missioncis in the cause between the lady
Frances and the carl of Essex. The archbishop
was prayed to opeu it ; ami so he did, and
there; found that four of them, sub sigitlis rct-
tris, were required to entity iUcordum Smtm-
tit into the Chancery. 1 he archbishop asked
Seai'lr, i If this were "an usual thins;?* AVho an-
swered, 'No, he had not known any such
thing before:* It is replied, * What then should
be the reason thereof?' Answer was made,
4 That since the matter was controverted in the
sentence, lest there should be f|iiebtion of the
marriage afterwards th~ earl of Somerset would
have the sentence lyinj: by him under the great
seal of England ratified.' The archbishop
thought that to be but a weak hold, yet charg-
ed Searle to see such an instrument drawn, nnd
a certificate should accordingly be made. On
the Wednesday after, Barker, the register,
comcth to Lambeth, nnd shewed* a form of a
draught in paper, bow the certificate should be
returned in the name* of all the commissioners
specially put down. The archbishop, in the
rfitdiii'.'. of it, found five or six lines having a
black iiim drawn under them ; and there upon
the more marking the wends contained in them,
found that which he liked not. Thereupon he
asked Barker, * Who linpd those utmlsr Bar-

»o or no. j\ ,

it was found to be but a jargon, it gave n great I ker said, ' lie himself did.' The other asked,
deal fif contentment, and removed away much ' What was the reason of it?* And it was *n-
icundnl wbiih formerly was taken. Yet a»nin swerrd, * Becausa tir John Itenm-t, and some
vol. II. -S II

6&»«] STATE TRIALS, 1 1 Jambs I. 1 0 1 3.— Que qf the Cotmtcu of Eskt, [896

these words, that * post oiuniinodam veritatit
' disquisitionem, posfe probationes idoncas et
( de jure requisuas/ we gave such a sentence ?
For to subscribe this, were to proclaim myself
a dishonest man upon record : Fur if these
things be true, why did 1 deny to join in the
sentence ?' Quoth Litchfield, * This here is
true ; for it cannot be denied, hut some * pro-
' bat in nes idoueie et dc jure requisite' were
used ; and we do not say that all were/ The
archbishop angered, ' You shall do well,
therefore, to certify * post probationes aliqnas,*
and I will join with >ou ; but as it standetl
now indefinitely, it will be taken as if all hau
been used ; 1 pray you therefore to alter th*
certificate, and uiuke things plain/ * My lord/
quoth Litchfield, ' I will deal plainly wiihyou;
Because the .words were in, and doubt was
made, whether rhey should puss or no ; the .
kind's majesty hath been acquainted with the
Ijumiks* ; and he, by a letter from sir Thomas
Lake, hath sent word expressly that he will
have them hi/ The urthhishop said, 'Let
them then certify, who will avow those words
for I cannot condescend unto them. And hath
not that person done u good office, who hath
informed the king hereof; that distraction may
stiil be among the commissioners, and thtre
may never bean end of difference ?* Ti e bishop
said, ' .My lord, I could wish that you would
yield unto the king, and so give him satisfac-
tion/ The archbishop answered, * What
would you have me do r* I cave the sentence a*
1 was persuaded in conscience, and since that
time 1 have been silent, and meddle no way in
i he matter : I did "hat I did upon long delibe-
ration ; and I may not in private, upon no
ground since appearing to me, cross that which
I have done in public/ It was farther added,
' That there was reason to suspect that they
did ill oihets who lit id those things still on
foot : That there never was any man, who
sought to grace himself by disgracing others,
hut it met him at the lane's end, at one time or
another/ These things passed then; and after
i he cause hirr.rd between sir Pexal Brocas and
his wife, the bishop of Litchfield said to the
urchhLshop at his parting, * My lord, \ou will
gi\e us leave to certify then as we purpose r*
To which the archbishop answered, ' Yea,
with all my heart/

The next morning the archbishop remem-
bered, that by the carriage of things in Mich
fashion as was pretended, he might be tricked :
For if the names of all the commissioners were
put into the certificate, and four of them might
certify under a common teal, it should not be
known hereafter, but that he and his fellows
concurred therein, and that, with the words
which were excepted against: He therefore
sent for Barker, and in the presence of sir John
Bcunet, and two servants, being public nota-
ries, he expostulated with Barker, as serving
men's turus, rather than caring tor peace; and
then punctually he delivered these things.

First, * The writ required) me to certify the
sentence, and I am ready to do it/ — Secondly,

other of the doctors with hiin, had disliked that
sentence/ Quoth the aichbishop, 'And thev
had reason for it : Who put them rirtt in }'
B.irker said, ' None hut himself/ Quoin the
archbishop then, ' May not the certilicate
stand as well without those words as with
them !' To which Barker answered, 'Yes/
Tin n said the archbishop, .' Let them be
stricken out/ Here the register, with some-
wh.it ado, faintly made answer, * That the
commissioners on the other side would by no
means have them out. The archbishop said,
* Then 1 perceive it is a device to entangle us :
I am ready to certify the sentence as the writ
requiretli, but. I will none of this. Barker, I am
first in die commission, und tor my place sake,
1 would have looked, that 1 should Juve heeu
conferred withal, what had been tit to return,
and not to have had this trick put upon me,
that either 1 must certify (hit which crosseth
my judgment at the time of giving the sen-
tence, or I must be forced not to certify at all/
So Barker departed, and all was quiet until the
Monday after ; at which time the archbishop
was early at \\ hitelull, the council sitting that
morning. There, in the waiting-chamber, at
the ead of the privy-gallery, the bishop «f
Litchfield comei h to him, ami saith, 4 My lord,
we have received a writ of Ccrtiorttn out of the
Chauciry, to certify the sentence for the nulli-
ty/ * \ ta/ s'-ihh the archbishop, ' and I am
ready to ccrtiiy it/ ' But,' saith the bishop,
'.lie who framed the writ hath made it sub
fiuitiu nxtris, and doth not know that there
is a stal of office tor the delegates; it should
have been sub ii-illu com muni.1 lie fore the
urchhMiop could reply, in cometh the lord
chancellor, and to him cometh out of the next
chamber the lord chamberlain ; and then
those two lords, together with the bishop of
Iyitehfield, drew thea.selvcs to a window, ami
there had they secret communication about the
altering of the form of the writ, a-* the cikct
declared; for that afternoon, a cause htiii£ to

1 he heard touching alimony, from sir Pexal Bio-
cas to his lady ; and the committees in it being
the bishop ot Litchfield, and Mr. Clrmcellor

. of the (lurch)', and my hud of Canterbury be-
ing umpire ; before Mr. Chancellor was come,
Bern bo, deputy to the clerk of the crown,
came into the parlour at Lambeth, mid had
private speech with the bishop of Litchfield.
The archbi-hop going out into the garden,
Litchfield followed him, and told him, ' That
Mr. Bembo had brought another form of a
writ;' and thereupon shewed him the words
mb communi sixMo. The urchbL-hop bid him
do as he thought good, and withdrew himself
iuto the low stone gallery, whither Litchfield
followed him, and used these wo»ds: 'My
lord, here is a form of a certificate, which hath
been thought fit to use iu the business of my
lord cham bt-rlniii ; and 1 hear your grace taketh
exception to some things in it/ Then he pull-
ed out the very paper which Barker formerly
had shewed. The archbishop answered, ' My
lord, have I uot reason to take exception to

837]

STATE TRIALS, 11 James I. 1613.— in a Cause of Divorce. [SS*

• If the whole process be desired, I nm willing;
to certify that ulso/ — Thirdly, 4 For the words
in question, because they we're put in without
my privity, und they may as well he left out as
put in, by your own suvmg, I pray to heforbom
tbr returning of than.' — Fourthly, ' 1 require
sou to conceal thee things as much as you
mnv, ihat the world take no ikw alarm of uuy
difference between the commissioners.'

'the archbishop spake of returning the
whole process, because he hud heard, that at
the first it was meant it should he so ; hut Dr.
Stuart, and perhaps some other of the Civi-
lians, dissuaded that by all meant ; lest, if the
whole were on record in the chancery, every
loan that list, hereafter might censure that
sentence, a. d sift the grounds w hereon the
eomniissiouers proceeded ; it was good, there-
fore, to take away that occasion.

When matters were thus resolved, the bi-
shop of Litchfield, who meant to pl.iv his
prizes in this service, speaketh to Bembo, to
draw some preface or conclusion to add ro the
certificate; that it might not only he signed
with the great Seal, as after the form of an in-
tpcjcimus: but that his majesty might add a
confirmation to it : and when Mr, Bembo, as I
unacquuinted with this fashion, did not fit the !
bishop's humour, his lordship took on him to do
it himself. He drew up therefore, a strange
writing, as was informed by a credible person
that saw it, containing barbarous Latin, and no
good concruiiy of sense. But the matter of
it was, that his majesty having the autliority of
the pope now in himself, and in nciinio pectori*,
having power to ratify, did, er pltmtudwe po-
tato ttiy confirm that divorce to nil intents and
purposes. In an evening Dr. Martin was sent
lor to the lord chamberlain, and there was the
bishop with his paptrs. The doctor, as it hath
been credibly delivered, being shewed that
writing, and his opinion there upon being asked,
did utterly dislike it, and said, " That the king
claimed nothing of the pope's power ; but took
that as his own, which the pope hail usurped :
that the king had spoke before by his judges
delegate, and had nothing more to do : that if
the sentence were not good already, no con-
firmation could m ike it good." And when the
bishop was earnest in defence of his device,
tltere was a little heat stricken between the
doctor and him, so that tluse words passed
from the said doctor: " You do, as much as in
too lieth, spit in the face of the king our master |
by laving on him all the matter ; whereas the
Scandal that hath already been is tins, that his
majesty is said to deal so much in the matter.
My lord, vou are to l-lniue to enter into these
lujng» without advice of men skilful in the law*,
hath Dr. Stuart or Dr. Bird been acquainted
lierewithal ?*' The bishop said, "No; but for
this matter, I know as much law as the b«st of
too alt" Dr. Martin replied, "No; your
knMnp think eth, that been use you have read
two or three chapters of the canon law about
thai late business, vou know as much as we do,
wbo have spent al( our lives iu that profession :

I tell your lordship, I have studied the law
these two-and-thirty years ; and therefore, you
shall eive me leave to believe, that I know
more therein than you can. I am the king's ad-
vocate, and therefore may sutler nothing w ith my
consent to pass dishonourable to my master."

Upon these contestation*, the lord chamber-
Iain was much troubled, saying, " What a
•natter is this, that men should be of such
contrary opinions ! What shall we do ?'* When
the bishop murmured much that his counsel
was not followed, Dr. Martin said thus : " Mv
lord, in a business of this importance, 1 will
not wish vonr lordship to follow my single ad-
vice, but let this be done ; to-morrow let sir
William Button, in your lordship's name, come
to Doctors-Commons; and let him get toge-
ther sir Daniel Dun, Dr. Stuart, and Dr. Bird,
and I will attend them : and then we will con-
sul r jointly what is fit to be done."

This ad\ire wan much liked; and on the
morrow, being Friday, they all as^embh -d, and
for two hours all points were debated; bill th*
conclusion was, •* That ihe-e should be no far-
ther confirmation: f>r this was to proclaim,
that the sentence was detective in itself, which
would make a great buzz in the world ," and
therefore, thecounstl was in general, "That
too much had been done, and for the lime to
come, the care must be, how to lay it asleep

fairly."

This resolution being taken, the next knack
wa«, that so many of t:»c commissioners as were
for the sentence, should be called together ;
and they should be made acquainted with ihis,
that the bishop might be fairly put off. On
the Saturday night, therefore, in the dark, at
sir Julius (.'a>ar's house in the Strand, met (he
bishops of Ely, IJtchhvld, Rochester, the two
chancellors of the Exchequer and Dutchy, nnd
sir Daniel Dun, nnd will near for an hour,
they private lv debated what thev thought fit;
but, as it scemeth, resolved as before, and so
departed.

A friend being the next day with the lady
Ca»sur, and knowing of the meeting, a>ked her,
44 What about it was?" She answered, '« It is
something about the late nullity ; but whut it
is, 1 do not know. It «eemeth, that they who
were the doers iu it, think somewhat is amiss.
Thev suppose all is not well about it, and I for
my part think *o ata>."

A man would have supposed, ihat all the*?
things should have con tented the bishop of
Li'chfield; but he wa* so fir in love with his
own invention, that yet he would not be beat
off; and then line, to merit the more, he once
acain inoveth the lord clnmbf rlain to send to
sir Francis Bacon and to Air. YeKeiton,
being of the kinj;'» learned counsel, to know
their opinion : which beng done ; and ihey
two, for the reasons above-named, concurring
with the civilians, the bi-hop, as it bath been
credibly ri luted, said of them, togetlu r with
the rest, " 'Ihey are all fimls." And so ended
ihis strataeem; but the worker llnrruf was
nut yet tor an end.

889] STATE TRIALS, 1 1 James I. 1613.— Case tfthe Countess qf Essex, [840
From the beginning of this whole question

of the nullity, tiie bishop of Litchfield hud car-
ried himself variously, sometimes being vehe-
ment in words, publicly against the separation,
and other times in deed, giving furtherance to

some cause why it should be done wit host
publislung the banes: For, peradveuture, some-
body may step up, and make a disturbance.
You know what a mad, naked fellow came into
St. James's, after the death of the prince; if

Many speeches he had privately with the I such a one should come in now, what a
bishop, making show of umrh honesty and j would it mulct?'' The archbishop won
respect to him, which the archbishop ever warily within himself, to hear such a reply, and thought
observed; think nig, notwithstanding, that these • sure! y, that it was no mud body that tbey
had been testimonies o! the working, of his con- ' should need to stand in fear of, but they sus-
aciencc, conflicting iu itself, but not revived pecttd some what else. But his answer was,
what to do. in the mean time, horn the cou't, i ** My lord, there come no such into the king's
from London, and out of the country, the arch- : chapel ; there be doors and officers to keep
bishop was still called upon by divers worthy ! such out. Hut if it should be suspected that
friends, " That he should take heed of that any would oppose, it is best (he banes be asked,
bishop: That he was ever, and iu all things ! for ilun theie will be some warning of the gaiu-
naught: That 1m d-d all the worst utiices ihat ; spying ; whereas otherwise, if at the time of
possibly he could, and was still stirring the ■ the marriage one should suddeuly start up, it
coals, to p ocure to himself a reputation ; that , wo., Id make a greater trouble/' Notuith*
lie was xealons of the ia>usc of butiblk." The , standi;)- the bishop wiut on, u That a licence
archbishop I'm got not tnnse many warnings, would cut off all the doubt/' The archbishop
hut earned himself very warily towards him: answered, '< Hut what have I to do «vith grant*
Yet out of charity it still came m his mind, } ing a licence in the king's chapel? It beiongitb
" lie is a bi&hop, I. know no evil of him; 1 to the ordinary of the pluce, mid that is my lord
ought not to condemn a mini upon a generality ; of Hath, as dean of (he chapel." Litchfield rc-
I have no particular proof of his misbehaviour ' plied, *' He never granted any, and he hath i>o
in this behalf: Although he dealt ill with the , teal for (hat office." It was answered, " lie
late lord treasurer, and most fa sely with the I never grunted any, because nobody ever desired
archbishop Bancroft in his life-time, and utter ' it; hut the manner was, that the banes were
liis death ; ami for that cu;>e was detested by published, But us for tlie seal of the otiice,
botii of them; vet an honest man may think, who doth not know that any seal will serve?
tout experience hath reformed him, and now he Ami n -nc b« tier than this bis!iop\ teal, it beins;
is amended." Yet it much allocked the arc!.- ' said, ■ Datum sub sigillo uostro LpUcopuli, quo
bishop, that all men spake so iil of liiiw ; aud i * in hoc casu, or hoc tempore, utimur*. King
one speech of an old couitier, a very honest ! James at the first, did use the seal of queen
knight, eutend fur with him. For about a Lli/abeth, till a new one was made." The
fb;tni"ht before the marriage, the said courtier bishop proceeded h, " Yet it would be fit that
speaking privately wiih the archbishop, among you granted the lictneo, if.it be icquested.''
other woros, he i;s..d this: u 1 know not what j To this the archbishop said, " 1 shall do that
the bishop of Litchfield doth among you ; but
lie hath made a shift to be taken fur a knave
gem rally with us in the court." .Now, whether
the next prank will verify so much <»r no, let
tli?* reader judge. ]£ight days before the mar-
riage, on a Niturday morning, tint bishop

Cometh o Lambeth, and iu private conference | Our, my lord, I know that my lord of Bath hath
with the archlii*:iop, lie telle: b him, '* Thnt out it under the gro.it siul of Knghuid exclusively

P
which never any of my predecessors did.**

" Yes," quoth Litchfield, u if you would seek

your records, you should find some so granted."

The urchbis.hop answered, *' 1 have inquired of

my oiheers, and they tell me, That no such

thing was heard of, in omni hominum memoria.

of his lo\e and respect to his giace, he was
come V' . intaiuv, ;u> of iiimsiif, to know his

to the archbishop ; so that in direct words tliert
is a restraint, thai ho may not meddle there."
mind about ' ne matter, :.ud it was this. On ! *' ^ ca, hut," qimih Lite h icld, *' you have an act
St. Stei-h' n's day, said he, the lor.* chamberlain : ofpailiamcnt.cunhlinK you to grant dispensation*
inc.net h to • ave thi- peat marriage go for- ( (o the kim;and hischihireu ; and thereiore it bc-
ward: Now, it may, periiups, be desired, tint a [ iongeth to you." Said the archbishop, < do not
licence should be giv« n by you, that the banes I you think that I understand the act of parliament
may not i>e :is'»ed; whu.h if you like not to; as well as you? My lo/d, do y>u think that lliat
cram. I may be she mt-uns to frcv you from, statute w;u» uia«.ie for t best' oidinary graces and
being mov<d t- it." The arch' ihhop said, ! dispensations? V\ by, is not your lordship able,
•• Wh t have I to do wiih a anting of a licence? j within your diocese, to cram a licence, that a
It beiongctb not to me: Hu wherefore shou'd 1 maiTiniu-iuav be solemnized, and not the banes
there ne .«ny reed of a Uv\ ce? Tlie maniage asked?' * Ye*," saith he, ' I may: nay, every
is in ended in be public ; m;..»ks aud she* s are archdencon may do it within his jurisdiction.*
ina .e tor the s;.m .; i».l Ki^iund t.keth notice ' Th»n, my loid/ quoth the archbishop, * inusi
of n, and f ere- ore it w«.rc good liiut the banes an act of parliament be made to grant the nop.
we.e <p«:oly a-ked, r.s ue manner is of such > power to do that which every a r elide aeon may
mur.M£»s as are mad>: iu the king's chapel. . do within his preciuct? There is surely some
Yea, the lady Elizabeth herself hud her bane* ] other matter iu it. Dot I marvel, my lord,
ftsked.*' " My lur<l, saith LitcMeld, there is ! that you nre now so earnest for the archbishop'*.

I

841]

STATE TRIALS, 11 James I. 1G13 in a Cause of Divorce.

[849

licence*, when, at I have heard, in the days of
ray predecessor, when you were bishop of Uo-
cnester, you mould not suffer (he archbihhop'>
licences to pas* within your dioce>e.' * No,'
I ruth he, * it was for We»t minster that I did
strive, not for the diocese of U« -cheater. And
it is true, that there he ncoid* in tli.it church,
that the monk* did contend wiih tl»e king ahum
divers question*. 1 had reason, therefore, to
stand lor the privileges of my church.' it was
answered, ' So hath my lord of B.tth to stand
fur the right of the king's chapel.' The arch-
bithwp seeing how earnest tlte man was, in so
unreasonable a tiling, said fur' her f My lord,
you have mine answer; but let ntc imw tell yon
one thing. It is six weeks ugone, that 1 heard
from the court, and many times since I have
had it reiterated, that such a trick should be

fit upon me : that altliough it needed not, vet
should be moved for granting thi» licence, be-
cause thereby I should be constrained, either
to grant it, and so cross my former bentence,
and involved ly give my consent to the nullity,
er I should deny it, and so grate once again
upon the king's displeasure. You see now- 1
have given you a fair answer, which may free
lite from both. But, my lord, I pray God you
do good offices in this business I fear you put
yourself into many things, which may be belter
fijrborn. But let me tell you, there was never
any man who sought to nuse himself by wrong-
ing mother, but at one time or other he had
enough of it. It is now almost three months
since this sentence was given, and since that
time, I have uot meddled with the in niter, for
offending the Ling. I am sih nt, and no way
Appose, and men have tU-ir end ; yet cannot I
be quiet. I would lm\e you know that God
beholdeth these tiling, and rcniembert-th them.
And for my part, 1 urn not blind, I we well
what is done ; and 1 s-hall not always be silent.
The time will come, that 1 must spenk ; and it
thall appear I am not tongue-tied.' This made
tiie bi.4iop not so forward as brrforc; but occa-
fion of a fa it her speech being offered, the arch-
bishop went on, and said, ' '1 he sentence which
I pave, was iu the fear of God, and according
lo my conscience : and if that liad been done,
wliicli was convenient, and we called for, there
needed not to have been any division in judg-
ment. For, my lord, you muy remember when
you came to me at Croydon, und brought these

nera from the king, after the reading whereof
ept little that night, how desirous I was to
give his majesty satisfaction; and therefore
prayed you, fetching uut the process unto you,
to tell me whereupon I should ground my sen-
tence. Yuu shewed ine one article, 'ihat he
hod not known brr, nor he thought that he
never should. I told you then, Yen, that was
for want of love, for he said, When I came out
of France, i lo\ed her; I do not so now, neither
ever shall I. It is want of love.' To this the
bishop said, ' Yea, and the earl added, That
be had done his best oftentimes, carnally to
know her, but be found an imperfection in him-
ft*lf.v The archbishop replied to this, ( Oh,

my lord ! never say so ; for his lordship's an*
swera, upon his oath, are to the contrary: He
found no defect, or impediment in himself.
And if I shall speak my private opinion, al-
though I would not have you believe it, 1 think
the eurl as able a man tor a woman, as any it
in England.' * And I think to the contrary/
quoth Litchfield. The archbishop went on:
' But, my lord, when your lordahip and I had
these difficulties in our mind ut Croydon, you
tuld me of one thing, which 1 embraced us an
oracle from heaven. And that *vas, that to rid
ourselves of these distractions, we* had no other
way but to call the earl of Essex again upon
his oath, that so giving us a fuller answer, we
might either have good ground to pronounce
for the nullity, or matter to give reason why we
might not condescend unto it. I approved
this ; and you know how the next day, in public
court, it was moved, and my lords o'f Winches-
ter, Ely, Rochester and yourself, gave very
good liking to it ; and no man said any thing
against ir, except Mr. Chancellor of the Exche-
quer, who softly spake, 1 know not whether
that will he permitted. But you may remem-
ber, you were intreated to deliver this to the
king at Theobalds from whom you brought
word, Th;it it should ndt he punted, because
the earl of Essex, ln-ing partly provokrd by his
failiug out with Air. Ueury Howard, and partly
being counselled by the earl of Southampton J
would speak all things to hinder trie nullity.
My answer then was, 'lhat he was to speak
upon his oath, Aid we would most strictly exa-
mine him. When that was denied, which
should have led us to the truth, I must confess
I had never any mind to pronounce for the se-
paration/ The bishop seemed to take no
great pleasure to hoar these things thus repeat-
ed, but fared, as if he could have w ished, that
they had all been forgotten. The conclusion of
all was, that the bishop seemed la he well sa-
tisfied that no licence was given, and promised
the archbishop to take care that he should no
further be troubled with it ; asaurinc him, ( that
ho did ever good offices to him, whereof the
king could give witness, and would: and he
would ever make the bt*»t of things.' To which
the archhisuop said, ' If he did, he wo* *d take
it for a kindness at his hands;' and sc he de-
paited.

Accordingly, the next day the banes were
asked in the chapel, and there was nothing but
fair weather; the archbishop attended the king
in the closet. Ou the Monday the king went
to Hampton-Court ; and that day the bishop
of Bath and Wells came to Lambeth : he told
the archbishop, that lie hud a direct mcfsaee
unto him from the king, and that was, that his
majesty did much marvel, that he spake not
with him about the sentence : that the king
expected satisfaction and submission. His
lordship added, that he jwrceived that the kin»
had some scruple in his mind, which lie wished
should be removed before his going to the com-
munion on Christmas-Day. The archbishop
knew not that the hUhop of Litchtiehl had

848] STATE TRIALS, 1 1 James L 1613.— Gaae qf the Gxwteu qf Essex, [844

dealt any way treacherously with him, and
therefore was constrained to answer, in general,
that be knew not what to say to his highness.
He persuaded himself, that in giving of the
sentence he had done his duty, and therefore
could not tell how to make a submission where
he conceived no fault. M in any circumstance
he had erred, he was ready to testify his sor-
row for it ; but be knew no such thing ; yet if
his majesty was displeased at him, to signify
his obedience to bis king and sovereign, to
whom he was so much bound, he would not
refuse, if the king were pleased to restrain him
of-his liberty, and lay him in the Tower all the
days of his life, to submit himself uuio it pa-
tiently, without murmuring.

Furthermore, he prayed the bishop of Bath
(who, on the morrow, was to go to Hampton-
Court) to signify humbly to his majesty, that
he had nothing in this world more precious than
his life ; and that he wished, that he had given
that life as a redemption, that the king's hand
had never been in that business. And wiihal
he said, that at the coming of the king, he
would attend his majesty.

On Wednesday night, the king came to
Whitehall; and on the Thursday, after dinner,
my lord of Canterbury went to the court, where
they were all busy about plate and jewels
against the marriage. Notwithstanding, he had
hastily speech of divers matters with the king;
and in the end, he said privately unto his high-
ness, • May it plea«e your majesty, I under-
stand by my lord of Bath and wvells, that your
majesty expects that I should give you an ac-
count about the matter of the lord of Essex and
the lady Frances : I can say nothing more than
this, that I was put into the commission as a
judge, and at the time of sentence I did my
conscience ; and since I have not meddled with
the matter.' ' Yes/ saith the king, ' I hear
you denied a licence to be granted, for not
asking of the bancs; which I wonder you would
do, since the sentence was passed.' * No,' said
the archbishop, I denied no licence ; but I ad-
vised, that the best course was, that the banes
should be asked, according to the custom used
in the chapel.'

Secondly, I said, * That if any licence should
be granted, it belonged not to me to give it,
but to the ordinary of the place, the dean of
the chapel, who hath it under your majesty's
great seal, exclusive to the archhishoprick.'
' Yea,' said the king, ' my lord of Bath said so ;
but I am told it is otherwise.' The archbishop
replied, ' Nay, it is so indeed.'

And thirdly, said he, * My answer was, that
never any of my predecessors granted a licence
for any thing done in the king's chapel: I
have received information so, from my officers.
It had then heen presumption in me to attempt
that which belonged not unto me/ ' This is
anotliej* matter,' saith the king. * Were these
your answers ? I wits told otherwise. But I
will take some other time to speak with von.'
Tho archbishop, after this, attended half an
hour, and nothing being siid, he departed.

The same night, a friend coming to Lambeth,
told my lord, * That be had been that day with
the lord Knowles, where he found, that the
bishop of Litchfield had exceedingly wronged
my lord of Canterbury : for he had reported all
the speech about the licence, in a spiteful man-
ner; said, it was absolutely denied: that the
archbishop gave out, that the earl of Essex was
very potent tor a woman ; and that he intended
to question this new marriage, at one time or
other, that it sliould never take effect.'

This, said the gentleman, made a great stir
among them ; and the archbishop was much
blamed, that he would never make an end :
but they were much troubled at it, as fearing
themselves, that all was not sure. ' But,'
quoth he, ' wlien I had told them, that this was
some ill office of the bishop of Litchfield, who
had every day new inventions to puzzle them,
that he might so much the more ind ear himself,
unto them, by signifying hi* zeal for them ; and
that I know bow fairly my lord of Canterbury
had au^werqd him, (for so indeed he did) auu
that he was so far from disturbing the luarri-
age, that he intended to be present ax it ; they
were not only appeased, but seemed much con-
tent that his grace would be there : and this I
assure you to be true."

When the archbishop heard this, he was now
satisfied, that the man who had done him all
the wrong, was the bishop of Litchfield ; from
whom he resolved afterward to be very wary Iiow
he trusted him. Yet, professing that he forgave
him with all his heart, on the ( hristmas-Day
he attended the king, and received the com-
munion with his majesty ; and so, coming home
to dinner, sir Charles Cornwallis came along
with him. Tins gentleman is one, to wh»m,
for his love, the archbishop was much be-
liolden ; and after dinner they grew privately
into speech or* all these fore- remembered stirs ;
where the knight found much fault that so
many tricks were put upon the archbishop;
blamed infinitely the bishop of Litchfield ; pro-
mised to acquaint some of his great friends
with his qualities, and assured to make things
be rightly understood ; and took away with him
that report, wherein he seemed much to joy>
that the archbishop would be ut the marriage.

On the morrow, being St. Stephen's day, the
archbishop went to the court, attending the
king to chapel, went down to the marriage,
(where, not the kin?, but the lord Chamberluin
gave the bride) Imd a pair of wedding-gloves,
and so came home to dinner ; where he sat
with much comfort, as being glad, that since
things must be so, tlicy were come to an end :
and so prayed God to Mess his church, the
king and kingdom, and himself; that be might
be tree from so many vexations, as for a Jong
space undeservedly had followed him.

The SPEECH intended to ho spoken at

both, Sept. 85, 1613, by George, Archbishop
of Canterbury, when it came to his turn to
declare bin mind concerning the Nallity of

$45]

STATE TRIALS, 1 1 James I. 1013.— m a Cause of Divorce.

[840

Marriage between the Earl of Essex and the sentence, I ever have been free, remembering

Lady Frances Howard. j that jujlgesare in the place of God; and at

ro - . ~ . . r . ! Jeho&aphat said, 9 Chron. xix. ' Non hominit

[Seven of the Commissioners having before de- « judiciu exercetis sed Domini, et quicquid ju-

Clared themselves that they would i»ive ben- J c ,!;-„„«-;*;. ;„ „.>„ .^a^a^.^ » w 1 ,i2- ,'i_

dicaveritis in vos redundavit.' He then who

would give voices against the Nullity.] ; nuin<_s of U1|> fo|> abusing of f J)e -trugt wh|ch u

My Lords, and you the rest of the Coinmis- . committed unto him, which I liope I si ml I not
doners; I have had a great contention and de- do. And cui bono* To what end should I
liberation within myself, in what manner I j transgi ess in judgment for either side, when I
should utter my judgment in this present cause, \ have no reason to be partial for either, since
since, after the speech of those three who first ; it is indifferent to me, in any particular, whe-
begau, so great a stream and concurrence to- ; titer this question receive one or other deter-
gether of the rest (my lord excepted, who ruination?

spoke la*t) have given thtir opinions for the
annulling of the marriage. But yet I hold not

Where, lest I should be mistaken, I think it
not amiss, as publicly I have done divers times

myself concluded thereby, but that I may de- j before, to let the world know what my judg-
clare my judgment, having learned that m//- i meut i* concerning the im potency of a husband
Jrugii among wise men are us well apptndmuu , toward* his wife: that since marriage in young
una ponder undo, as numvraudu : and it was no | couples is for carnal copulation and procrea-
shauie for Phocion in Athens, upon good ! tiou thereupon, and that it is the intendment
ground, to contradict the whole city; neither of those which contract matrimony to receive
was Paphuusius in the council of Nice the less , satisfaction in that kind, that if (his nobleman
respected, when he *>tood against tike whole be not able to perform those marital right*
Synod; nay, it' was his honour, that by deli- unto his lady, he doth unto her a very
tering of his tentence, he altered die re>olu- gieat injustice to tetain her as his aire; and
tion which that wi.olc a**emhly had intended - we shall perform a ureal part of injury and
to take, which I freely acknowledge 1 have no j cruelty towards her, if we do not free her from
hope to effect at this time. And yet, though I j this burthen and yoke. Wc are bound in con-
have not that hope, but might very well spare ; science to d.i it, tince it is in truth no mai-
this labour, yet my conscience ttlleih n»e, (hat riage, but a pretended matrimony, that con-

it becometh me to spir.k in a matter of this
importance, because, not only, Deum tn/ico, I
fear God, which 1 doubt not but all of this
company doth; but I am afraid of God, le.st he
should be angry with me, if in this case 1 bo

summation being wanting, which was one of
toe first thing** in intention when they two came
together : tor impo$sibilitas officii, by a received
maxim, solvit vinculum coitjagii. But the
point is, that before the separation be pro

•ilent. And 1 think it i» expected of me, since j nouiued, it must appear unto the church, that
I aui here present, that I Miould not sit as an j there is good cause for the same; which must
idol, and only till a room ; for that were to lay ' not he upon light surmises, or questionable
an imputation on inv»eli, that 1 hid undertaken i Mi**£c*iions, but upon evident declnrations and

a cause, which in puLlic I durst not otter to
maintain.

I must acknowledge, that in dclivei ingot
my mind in thi> business of so great weight, I
do Hud two defects, that I ruitmot to perti-
nently speak unto the purpose as divers ot the
judge* here : the one is, Th.it 1 am no lawyer;
and the other is, That I am no married imm ;
by both which 1 am ditahled, that 1 cannot
ipeak with that confidence concerning some
particulars, as most ol you, the commiNsioners,
are able to do ; but in lieu th< rcof, 1 have en-
deavoured to furnish myself some other way

proofs, which may give full contentment to the
conscience of the judge. The marriage was
overt and in the face of the church, whereby
they were joined into one ; let the reason of
separation he as clear as that was, if it possibly
may be; or let it be so appmeur, that the
ch rch may well know, that there is ground to
stand upon for pronouncing of u. Nullity. Now
this is it which 1 doubt will not full out in this
case of my lord of E»sex ; there is not proof
sullicient to inform the minds of the judges that
this knot should be dissolved, and themselves
set at hhei tv the one from the other. And then

concurrent to this purpose : as by reading, by you understand what the general rule is, Quod
conferring with some whom I do tru<>t, with

pondering thereupon, so that it hath lost me
much sleep at several times, with frequent
prayer unto God, that he would direct me
aright; winch I have more begged of God in
this cause, than ever in any that was before me
ia judgment. And besides, I brine with me
animum enndiduw, a mind devoid of passion,
or any perturbation, which incliueth to no part
fer fear or for favour, for spleen or for liarred :
from which, I thank God, in pronouncing of

dulitas. ne ftcerit. And in this controversy
there seem in mv judgment many reasons of
doubting, that the separation desired ought not
to be granted. You shall hear some few of
them.

1. The first scruple which ariseth in my
mind, 15 from the uncertainty of that proceed-
ing, which we have had in this busmen. For
in the handling of it formerly, we had it pro-
pounded, that there must be a Nullity proptur
mulcfiiium versus hanc. That was it which we

847] STATE TRIALS, 1 1 JaMes I. 161 $.—Case of the Countess qf Essex, t8**

debuted, and for the which we turned our
books ; that the counsel for my lady did stitl
insist upon, not naming the words indeed, but
by a periphrusis, or circumlocution, describing
the same. And it cannot he lor got ten, how
Dr. Stuart, being tjld by one or more of the
commissioners sitting then in court, that his
whole speech did still point out mulejicivm ; he
answered, It U true, that is it which we intend.
The authorities always brought out of the
canonists were in direct terms upon jnalrficium,
the proofs intended nothing else. And we all
understand, that t-> have an iropoteucy unto n
man's own wife, and an ability unto othtr, and

' nocru vel clunculum benedictionem nuptinlem

* sioi dari procurant piopter metum malefkii :
4 Maleficium enim se vitiue posse, credere de-

* bent, hi eo pietatis aill-ctu ud conju^ium acce-
' daut, qui presenbitur in sacri* liter is, videli-
4 vet, utcuin timorc Domini, et amoietiliorum,
4 magis quatu hbidine impubi copulentur, dc-
4 vote susceptis pccniteiuia: et Eucharistia? Sa-
4 cramentis/ And the year after that, another
council in that kingdom doih speak yet more
plainly, f 4 Et quia Christiano nomine indig-
4 nus error nostro stcula inolevit, ut siunationi-
4 bus, cousignotionibus, vinculis et nexibus ma-
4 trimonia impediantur : — Hate Synod us coin-

that incurably, and that for some latent reason, ' * muuione Ecclesias interdicit omnes cos, qui
which cannot be known, is the case ofmafeji- j * bnjusmodi superstitionibus utnnttir : monet-
cium ; nnd that ib the matter alleged in the i ' que fidcles, ne hujusmodicomtnentiBfidem ha-
libel, and whereupon my lord is examined. ' ' ' ' ' ,x *•-*-•— —

And yet, now since we sit upon the second
commission, muUjicium is disclaimed. One of
my lords (my lord of Winchester) hath avowed
it, that he dislikes that maleficium ; that he hath
read Del Rio, the Jesuit, wilting upon that
argument, and doth hold him an idle and fabu-
ious fellow; that he rather suppoaeth it to be
Odd's own handy-work, than any thing from
the devil. Another of mv lords (my lord of
Ely) hath assented thereunto, and malejicium
inu.»t be gone. Now I for my part will not
absolutely deny, that witches by God's permis-
sion may haven power over men, to hurt nil, or
part in them, as by God they' shall be limited ;
but how shall it appear that this is such a thing
in the person of a man? The question is, An
factum sit, and how it shall be discovered ? 13 ut
10 make it a thing ordinary, as the Romish wri-
ters do beyond the seas, 1 take it to be a table,
acknowledging that tor truth, which a bishop
well versed in that ni^uineiu did lately write,
that tiudeuViai ion i* the \i ry g^rba^e of popery :
a thing so bast , tiiat we who have learnt Christ
aright, should despise and contemn, allowing it
uo place amongst us. Which course it were a
thame if we should not observe, since the pa-
pists themselves grow very weary of it ; and
that even in Trance, where there hath been
more udo ui'h this mnleficiatinn than in any

u'.her country; for there the common sort, at
the time of their marriages, were wont to l>e
afraid to have the words of conjunction in ma-
trimony to be spoken aloud, ' Quos Pcuscon-
' jimxir, nemo separet;' or the benediction to
be publicly given, lest some witch or sorcerer
in the same instant should tie a knot upon a
poiht, or play some other sorcering trick, where-
by th" new bridt groom, so long ns that knot
he-tod, should be di*abltd from actual copula-
tion v\:th lu r whom he had married.- And for

tiwiidiiigof that hazard, thev had therefore their I treaded out unto us. We have great reason
mat: imonies cch hrated in the night-time, and : for our doings in these h union action*, when
in sfonif priiale place, were none csiine but I we do those deeds which formerly were doue
tucli friends as they dared to tru^t. This super- ! by our prcderosors. 1 have had many worthy

s»ition grew so common, and men were sol -■ — --*— *

abused by the flight that came thereof, that the * llocfcellus in Decret. Eccles. Gallic, lib. 3.

4 beaut, sed in Deo fiduciam certain constitu-
4 ant, ncc idcirco matrimonia noctu riant, ted
4 in luce et frequentia homiiium.' If it Be rot-
ton ripe in France ; if it be ' error indignu*
4 Christiano nomine;' if men must not * fi,!em
4 habere huju?inodi com mentis;' what do we
with it here in England ? Let it be cast away as
a rotten rag of popery. And yet I do now
rind, that in the very sentence which is this day
to be given, it falletn directly upon the descrip-
tion of ' maleficium versus banc/ So that
what should I think of this case of my lord's,
which is built on such a foundation as no man
will stand to ? We are on it, and off it, and avow
it we dare not, yet fly from it we will not. This
moveth scruple in me, how I should assent to
that whereof I can learn no certainty from the
counsel of my lady, nor from you that be the
judges, who speak for this nullity: I dare not
rest my building on such a sandy foundation.

2. Another matter which troubleih my mind,
is the novelty of that which is now set on
foot ; a thing unheard of in our church, nnd
unknown in our kingdom. We have many
stories, old and new, of things done in this
land : we have registers extant in every dio-
cess ; v»e have nets and records *hich specify
those accidents which have fallen out in the
days of oar forefathers. I have caused search
in many places to be made, and so I know have
some or you, the Commissioners? and I hare
called upon yon for the same, but I can have
no precedent of any such example that hath
passed in our kingdom. No memory of man
can express unto me the name of that person,
whose marriage was annulled for im potency
towards his wife, when he found nn ability of
carnal copulation wiih any other woman. It
is this year 1013, that hath set abroad this pre-
sent imagination, for the former nges knew it
not. It is safe walking in the ways which are

prelates of France, about thirty years since, in
a council at ltheims, made this decree against
it. ♦ ' Peccare gravktr aduionetuus etw, qui

tit. A. cap. 176. anno loBG.

f idem, lib. l. tit. U. cap. 7, ex CoficilM
fiituricensi, anno 1£84.

849]

STATE TRIALS, 1 1 James I.

men, which have gone before me in the place
which I now hold, men learned, men judicious,
great discoverer? of impostures? Men that have
done great services for the nation where we
ive ; but of them never any had such a case
before them, they never gave sentence for a
nullity of marriage upon such an inability. I
enow not whether it be a happiness, or unhap-
jiness, that I must be the first to sit in a Com-
nission for determining such u 'controversy.

I know, to meet with this objection/ it is
<rhis]>ered sometimes, that there is an example,
uid that is fiury's case, which is urged as a
precedent unto this now in question. Hut, in-
Jeed, that is no pattern of this ; the dissimili-
ude is great between the one eiwe and the
jtber; lor Bury had his s — s stricken off with
in horse, that nothing but a little of one of
hem remained. 1 will read you the \ery case,
which if any man doubt of, shall be avowed
into him. Thus then it doth follow :

John Bury, esquire, was lawfully seized in his
femes nes as of fee, of, and in divers manors,
ands and tenements within the county of He-
ron. The said John Bury did, the «>Oth day of
November, in the first year of queen Mary,
narry one Willimot Gifford, and they lived to-
other three years ; and the said Bury could
not curnaltttr cognoxcerc dictum Willimot am.

Afterwards, viz. the 17th of May, 1561, the
aid Willimot called the said Bury before the
ecclesiastical judge, and charged him to be ' im-
1 potent em ad cocundum cum dicta Willimota,
'.propter vitium perpetuum, <t incurabile im-
1 pediuieiitum ad generatiouem, et ejus inhabi-
1 litaUjui,* &c. and thereupon desired to be di-
vorced. In the proceeding before the judge,
it wa* proved by divers witnesses, of which two
were physicians, tint the said Bury had but
one little s — e, and that no bigger than a bean.
It was also deposed by divers matrons, that the
laid Willimot Gilford remained a virgin, and
incorrupt ; and the said Bury confessed no
less: upon which proof, and confession of John
Bury, the ecclesiastical judge pronounced s( n-
tencc of divorce, and did thereby ?rpuratc them.

Afterward the said John Bury took to wife
one Philippa Monjov, his first wife, Willimot
(afford, being then alive; and the said Philippa
had a son in the time of their continuing toge-
ther, John Bury's first wife being alive.

Afterwards, the said Willimot being still liv-
ing, the said Monjoy, of her own accord, with-
out any sentence of divorce, forsook the s;«id
John Bury, and married one Laugeden, with
whom she continued. The said Julio Bury,
•ad Ins first wife, Willimot, died ; the said
Monjoy aud Lungeden then living, married to-
gether.

The question Is, Whether, John Bury being
divorced from Willimot Gilford for iiupmency,
the second marriage, solemnized between the
Mid John Bury and Monjoy, during which time
(he issue male was bom, be iu law a marriage
or not?

It appeareth by the process made in the
came, and luc words of the sentence grounded

TOL. J I.

1 6 1 3.— in a Caw* o/ Divorce. [550

upon the same process, that the first marriage
was pronounced to be void, ' propter defectum
1 et vitium testiculorum/ which made the said
John Bury ' hnpotentem et iueptum ad actum
' generandi, et coitum conjugalem.' And so in
all respects this second marriage with Monjoy
is void, and of no effect : for either this cause
of the dissolution uf the first matrimony is true,
which m always to he presumed, until the con-
trary do appear, and then the same cause doth
make the second mar;ai;e void also; or eke, if
it any ways appear, thi* cause of the di 'solution
of the first marriage to be false: * Et ecclesia
' erat decepta,quia satis pot ens ad genorandum,
' et quod in ipsa jjei'.eiavit.' And in that case
the first marriage i* «:<»od in law. « tt debet re-
' dire ad prima cunnubiu:' And so the secoud
marriage is utterly void.

We are of tbe opinion above laid down :
John Loyde, Henry Jones John Hone, Nicho-
las Stuait, Edwaul Croiupton, Robert Fourth,
William Farrand.*

* In the hhort rase of Mrs. Catharine Weld,
(daughter to lord Aston) and Edward Weld,
esq. her husband, printed in 17:tf, the ca*e» of
Bury and Essex are thus quoted in pp. 42, 43 :
" 'Ihe famous case of John Bury, esq. of the
county of Devon, in the reign of queen Fhza-
hcth, is a proper caution in respect to such de-
mands for annulling contracts of marriage, since
such nullities often occasion much noise and
confusion ; and instead of hurling none, as ha*
been asserted on the; other side, almost always
have stirred up implacable malice in the party
declared incapable, and the consequence-* have
not seldom brought a disreputation on the
court who pronounced it. — In order to which,
let us return a little to the history of Bury *s case.
His first wife \\ illiinot libelled him lor" insulli-
ciency us to canial encounters, and upon in-
spection it appeared he had but one little tes-
ticle, of the size of a small Ik an. The eccle-
siastical court, on this and other corroborating
evidence, gave .sentence with the libel, and, so
far as they were able, annulled the marriage. —
Willimot quickly took the advantage of this
sentence, and married again. Bury was, it
seems, not at all satisfied with this juridical sen-
timent of his incapacity, but. married also a
second wife, Hhilippa, by whom he had a son.
This afterwards drew the succession to Bury's
estate into question, on the legitimacy of this
sou The common lawyer* uere unanimously
of opinion, that the church authority exerted in
pronouncing the nullity bein^ plainly deceived
m the very ground upon which it went, that
sentence was iu itself void, and the first mar-
riage between, Bury and Willimot remained,
notwithstanding it. pood. — It is with some re-
luctance I mention the case of the earl of Essex
and lady Frances Howard, the most famous in-
stance in our l.iniidoin of a sentence of this
kind, which was given by the majority of 4
court of delegates, compost d of the greatest
bishops and men who were skilled in the civil
law; yet, notwithstanding, the solemnity of in-

3 1

Ml] STATE TRIALS, 11 James L 1613.— Case of ihtCowuas of Essex, [85*

Whether this be true or do, I appeal to Dr. I men of this land have beat down the power of
Stuart, who is here in presence, and oi" counsel
for my lad j, who, I know, will athrm it, be-
cau»e, not long since, being asked by me of it,
be confessed the same. And here is Dr. Far-
rand, now of counsel for my lord, who was used
for his advice in this rase of Bury ; and Dr.
Hone is yet living, who can testify the same.
For I will suppose, that a man cannot forget
such a famous case as that was wherein him-
self was employed : hut if all these were dead,
I know wht re records be, which still will con-
tinue. If this the'i were the matter in question
touching Bury * defect us testiculoram,' what is
this to the great controversy now depending be-
fore us? and if this he the only precedent, that
should be the inducement, that the sentence to
be given in tins chum; is not new, but the like
hath been heard of before; I am where I was:
We are now to act a novelty, a thing strange,
and unheard of in the church of England,
whereof let other men be the managers, I may
have no hand in it.

But perhaps it will be said, that in some
other countries, and especially in France, these
tiling are well known ; and the examples of
one kingdom, especially, being so near unto u«,
may be an inducement for us to do the like,
since the reason is the same. My answer there-
unto is, that 1 that live in England, am to
frame myself to those things, which I find in
the church of England, whereof I see no reason
but there should be as great esteem, as of any
church in the world. J is the days of our fore-
fathers, as our nation was held a very noble
nation, so was the church of England held a
\ery famous church. Ecclcsia Auglicaua, as
might easily be shewed out of Matthew Pari>,
und by divers things in tome later general coun-
cils, did carry a greater sway. And why should
we at this time, in any thing, yield unto any
church in the world, since it is a thing well
known, that the knowledge of divinity doth
abound here beyond all other nations ? and

tcrrogatorics, the earl of Essex's direct answer
that hill* wus a virgin lor him, the verdict of in-
*i>ecire>ses, the pomp of compurgators, and all
tue other colour;) which could be invented to
gloss their proceeding ; yet so scandalous was
this decision in the eyes of the world, thut it
lost the characters of all those judges who con-
curred in pronouncing sentence, and fastened
the nick-name of sir Nullity on one of the sons
of u hi>hop concerned in it, when he was soon
alter knighted." — And p. 47. lt Bury's case
was indeed an odd one, but it hud no effect
when quoted to the bishops and doctors in my
lady E^ex's case ; and though so many hard
censures have fallen on those who decided it
against the validity of the marriage, yet the
event did in some measure justify their opi-
nions; since the lord E*sex, though he ventured
on a second marriage, yet had not issue by the
lady."— Their Case is cited and considered in
the Duchess of Kingston's Case, a. d. 17T6,
intra.

the pope, and made evident direr* questions in
matters of theology, beyond all the parts of
Christendom .- but beyond this, I do know, that
the customs of churclies, even by the determi-
nation of the pope himself", ought to be the rule
of judgment in this nature. We have a famous
place interserted into the body of tlie law, writ-
ten by pope Alexander the 3rd. onto the bishop
of Amiens in France. It is worth your bear-
ing : * *Quod sedem Apostolicam consoluisti

* super his, qua* tibi dubia exist unt, gratnm ge-
' rimus et acceptum, et tua exinde fraternitas
' non parum comtnendanda videtur. Ex tua
' siquidem parte nobis est intimatom, quod

* quasdam mulier tui episcopatus cuidam viro

* nupserit, assereos quod ob utriusque inguinis
' rupturam, genitalia ejus abscissa tuissent, nec-
' dum ab eo cognita fuisset, qui utique factus
' leprosus, se pariter et sua domui reddidit in-
' firmorum. Mulier vero ad domuni patrisre-
' versa sicut asseris invents, alio viro nubere

* desiderat, et conjugali affectu conjungi. Unde
' licet Komana Ecclesia#non consueverit prop-
' ter talem infirmitatem, vel propter alia male-
' ficia, legitime conjunctos dividere, si tamen
' consuetudo generahs Gallicans Ecclesi* ha-
' bet, ut hujusmodi matrimoniom disaolvatur;

* nos patienter tolerabimus, si secundum ean-
' dem consuetudinem, eidem mulieri coi vo-
' luerit nubendi in Domino concesseris focal-

* tatem.' By this we do find, that the church
of Rome itself doth grant no separations in
matters of matrimony, where the church of
France doth ; and if the pope permit, in France
itself, that a divorce should be made, it is but
a toleration, ajad not this neither, but where it
is, consuetudo generalis Ecclesis Gullicame;'
which if you will npply unto this cause in ques-
tion, you must shew me, that in England it bath
been a general custom, that a nullity in mar-
riage may be pronounced ' propter impot en tiain
' versus banc ;' which if you cannot shew, as
indeed you cannot, nor give any true example
i hat ever hath been of any such separation
within this church, I may both in law and con-
science conclude, that I dare not introduce any
novelty, and so consequently pronounce for
the nullity of this marriage. Many things are
done in 1* ranee, whereof if we in England had
the examination, we should, perndventure, find
the fact different from that which they conceiv-
ed ; or if we agree in the fact, we should give
another sentence. It is not unknown how,
within the space of one year, there hath been
much ado in France about two women, Mag-
dalen and Ixmvse, pretended to be possessed
with a great mauv devils, and how \ errine, a
principal spirit in one of them, hath avowed
and maintained the mass, invocation of saints,
adoration of linage*, and a great many other
points of the grossness of popery ; and a book
hcieothath been printed and reprinted in Paris,
with the approbation of the state, and allow-

y
* De Frigidis ct Malcuciatis, cap. 2. in sup

plcmento.

§53]

STATE TRIALS, 1 1 James I. 1613.— t* a Cause qf Divorce.

once of learned mcu ; in which tlie church of
England would certainly dissent, and proclaim
the whole business to be but an iui|H>*ture ; as
tbe very like was in the days of queen Eliza-
beth, when the devils of Denhain Mere said
to possess Sarah Williams and her sister, and
some other persons ; and much ado was made
of it, and (liters fond people believing those
knacks, turucd papists thereupon ; yet the issue
of all was, that it proved no better than a
shameful delusion, and a great abusing of cre-
dulous and light-believing persons.

3. But now to proceed farther; If it shall
be said, it is not the novelty, nor the want of
custom here in England, which should prejudice
die truth ; rxileat Veritas wheresoever or when-
soever it appears : The Proofs are evident
wliereupou we do stand, and that will enforce
the sentence. My answer thereunto is, Let
that be made manifest, and clear, and perspicu-
ous unto tho conscience of an understanding
man, and I shall concur with you : But how
shall I find this in a matter of this auality ?
Because it is nothing else but truth which we
do aim at, it were fit that all probation's, if not
which arc possibly, yet at the least which rea-
sonably may be had, should be got together to
enforce a conclusion of this consequence. JVlv
books tell me, ' In valore matrimonii invest f-
' gando quxcunque probationes possibiles adbi-
' bends sunt, et potius debent esse superHuae
' quura diminuts.' It is Solomon's saying,
Prov. xxv. It is the honour of a king to find
out a thing. And wherein can judges bestow
their time better in a point of difficulty, than
to %earch and search again, by all honest and
good means, to know wluit is the bottom of
that which lieth secret, that they muy satisfy
their own conscience, and the conscience of
others, in the sentence' which they give, and
leave no kind of scruple, which may trouble
their own thoughts; Whether these tilings have
been done in this present case, I appeal to
your own consciences; whether the writers do
not mention divers things; whether the counsel
for my lord have not spoke of sundty matters ;
whether we that be the judges, have not thought
of divers courses convenient to be held; of all
which no piece or parcel hath been permitted
unto us. The proofs then which we have had,
do arise only out of tbe depositions, and if there
be not proof sufficient where shall we seek for
it : Let us then consider them. I will tell you
mv opinion of them. I find nothing in them
all, which is not in substance contained in the
Answers of my lord of Essex : A noble person-
age saith. That in the hearing of divers things,
tbe earl hath said, that he was not able to
know his lady carnally ; the earl thinking this
to be true. But this is but a relation of won-
der spoken extrajudicially; and therefore, for
the understanding of the truth therein, we are
to have recourse unto that, which by the said
earl is judicially deposed. Divers wituoses <\o
speak, that the earl and the lady have lived and
lain together for divers years ; my lord doth ac-
knowledge it iu his answer: the matrons and

[85*

mid wives do declare, that in their judgment my
lady is a virgin, and therefore, that she was
never known carnally by the earl ; himself cou-
fesseth that he did never know her. So that
now, all in substance depending upon his lord-
ships answer, it ought to he our labour to scan
that exactly, and§ to judue of it circumspect I v.
Doth not he then say, in res^omione ad quart i/w,
That though divers times, in the first year of
their cohabitation, he did attempt to know her,
(which divers times may be twice or thrice, and
no more) yet in the two hitter years he did
never attempt it? But doth he not say plainly,
tesponsionc adtertium, That since the time of
his marriage, he had not, nor hath any sickness
or impediment to hinder him, but that he might
have had, and may have, carnal knowledge
with a woman ? This is for the general, that lie
hath no impediment : But, in rcsponsione ad
auintum, doth he not descend more particu-
larly unto his own lady : that it is true that he
did never carnally know the said lady Frances?
Mark now what follow eth; but that to the
act of carnal copulation he did not find any
defect in himself. Indeed he was not able to
penetrate into her body ; but .he layeth the
fault of that upon her, as may be seen in his
answer unto the 7th article. And it may not
be forgotten, that iu the end of the answer to
the 4th article, he saith, That sometimes she
refused him. These things are evident, and
cannot be denied. The only matter which
makcth shew against this i*, that he acknow-
ledged that he hath lain by her, und hath had
no motion to have carnal knowledge of her;
but especially , that in the end of his answer
unto the 6th article, " And bclieveth he never
shall.*' These words arc the shield and buckler
of the contrary part ; but how easily do they
vanish away, or full to the ground ! For I ap-
peal unto you all, who were present at the exa-
minations, (and those were ten of us in number,
who now sit here present) whether the earl did
not openly subjoin that to his answer ; u When
I came out of France, I did love her ; but I do
not so now, neither ever shall 1." I appeal
unto the conscience of you all, except my lord
of Winton, and my lord of Rochester, who
were not then commissioners, whether this be
so or no : Here then is the matter, it is the
want of love, which rearaincth all motions of
carnal concupiscence, and not any impotency ;
it is drfectus voluntatis, and not dtfectus potes-
tatis. Let discontentment be removed, and
there will be an end of all the inability: Mar-
ried men lies' t know these things ; but out of
common reason, there can be no great longing,
where there is no great liking: utaay things
tbey say fall out between man and wife, that
for "some good space of time there is no carnal
conjunction, and yet no impotency concluded
thereby may be. The case is famous of PuU
cheria,' sUter unto the emperor Theodosius the
younger, wlu> having .vowed virginity, was not-
w ithstanding afterward, for great reason of state,
thought fit to be married unto Martianu*, who
thereupon was cbo»tn emperor ; she would not

555] STATE TRIALS, 1 1 James I. 1 6 1 S .— Case qf the Corniest qf Essex, [85G

undertake ; but the note is, that this objection
can receive no true answer. 1 know, that since
that time there hath been labour made, to give
a salve to this sure, but no man's wit can do it.
I said, and say still, that no man's loquence,
mither any man's eloquence, can \ -ersuade me,
thai * ipsi-> firmantibus juramento' is of the sin-
gular number. 1 know there hath been tumb-
ling and turning of books, to rind some shew
to meet with this objection ; but nothing can be
found which will hold out this water. The

condescend thereunto, till she bad promise
from him. that herviigihity should be preserved,
and with such a promise he did marry her ; so
that they lived together in shew as man and
wife, but indeed as a bi other and a sister.
Our -lories do make mention, that he who was
c lied saint Edward in England, I mean king
Edward the confessor, did marry ;i lady, lite
knowledge of whose bodV he never had, neither
did this wedded couple ever endeavour to break
their virginity. The writer? do declare no

other reason hereof, but th it they I. ad an | proceeding therefore doth appear to be unper-
o;»inionKthat to live in iirgiuitt was th»- m«#re j ftct and defective in that, which is mainly rt-
merirorious, according to the superstition of quired by the law, which makes me to conclude

those times. Now were it not a strange ar&u
inei.t, to conclude in this maurer, that because
iUartianus had not conjugal copulation with
Pulchcria, therefore he was a man impotent ;
or, because king Edward had not carnal know-
ledge of his wife, therefore he could not know
her? 1 know the circumstances of this present
question do differ from those, but the ground of
the argument is the same. Want of act, upon
private reason, will never enforce a want ol
power. Anil this is our case, as I understand
if, which maketh me unwilling to consent to
this nullitv.

4. There followcth now another argument,
which I shall deliver briefly. We have always
agreed, -that the chapter in the law which con-
taineth our case, is the chapter ' Litera de Fri-
' gidi* et Maleficiatis ;* for if it be not there,
it is no where to be found. When we have
-delivered many things appertaining to this
cause out of the best writers of the former ws,
or of our own time; as that my lord should t>c
inspected, or that physicians should use their
art to discern and remove impotency, if any
were to be found, or that fasting, prayer, and.
alms, should \m exercised to overcome this evil,
and divers other points of like nature ; it hath
■still been answered to us, So say the interpre-
ters, but it is not in the law ; or it is in the de-
crees which bind not, but it is not in the decre-
tals; or it is a counsel and exhortation, but it is
no mandate or injunction. I now therefore
mention something, which is in the law, and
in the very body of this law, and it is the Pope's
mandate; and ihat is, that my lord should have

in this fashion against some un perfect speech
touching my lord of Essex his affirming or de-
nying of his own inability towards my lady :
that cither he doth confess it, or deny it: If
he do acknowledge it, where is then his oath
' cum septima manu,' which the law irnposctb ?
If he do deny it, where is then your proof of
his inability, since you ground the whole sub-
stance of the nullity upon his lordship's an-
swer, That he could not know her carnally ?

L must yet crave patience to go a little
firther. One other exception which I take
unto this nullity, is the manner of the sentence,
which by us is to be given, which hath ever
been resolved should be in general, not ex-
pressing any reason particular wherefore we do
give it. To say that my lord is * inipotens in
• gen ere versus banc/ and not to tell wherein,
is to piopound a riddle to the world, which no
man underst;:ndeth. It wire a ...range thing
in learning to say, that such a creature is
animal, and not to tell whether it he n mart, or
a horse, or a fi>h,-or a bird. And althongh it
hath been said, and strongly maintained (by sir
Julius Caesar and sir Daniel Dun), ' That it is
enough in a sentence to pronounce a thing in
general, and that the judge is bound to give no
reason of it ;' yet I would be glad to know
whether, howsoever I will conceal the particu-
lar reason from the hearers or stand ers-by, yet
were it not fit, that I who am the judge, and
must tiivc the sentence, or at least consent unto
it, should know the ground whereupon I do
giu; it? (Jive me leave to speak my con-
science ; 1 think a sentence, ' propter latens

given his jurnnuntutn cum septima vianu, as ' aliquod impediment um,* which is • perpe«
well as my l.idy: for want whereof, the whole ' ' tuum et incurabile veisus hanc,' is nothing
proceeding is anuullated. This is the pope's [ but a device to serve a present turn, which we
commandment, ' Quocirca mandamus;' and it ! must deliver in such obscure words, to blind
rcquireth the n«th of both, « ipsis cum septima | posterity that comes after, and to amuse those

' propinquorum manu fir man ti bus juranunto,
' secomnvsceri cnrmiliter neqnivisse,' then * pro-
4 feratis divoitii sentcntiam inter cos.* This is
a thing so clear, that when on Thursday last,
by chance tht re fell mention of it ; the counsel
for my lady (Dr. Stuart and Dr. Bird) were so

which will enquire into it, as if we had known
something which we held not fit to utter, when
in truth we know nothing. I find the texts of
the law do still set down the reason, and give
a case particular, as frigidity, or section, or an-
fuiU'Ss of the generative: part, or some such

far from giving answer to it, that to speak plain- other matter ; but for an inability, * propter
ly, they stood as men blusted or blighted with * latens iinpedinicutom,* my dullness is such,

Ii

lightning; and knew not which way to turn
them : as was manifest not only unto us, but to
all the standers-bv; which I do not utter to do
them any wrong, for they arc worthy men, both
learned and faithful to" the cause which they

that in the whole book 1 c.mnot discover: And
it is a mvsterv that cannot enter into me, bow
a man should be potent unto other women,
and impotent to his wife, if it he not in case of
phrensy, which is uot * latens impedimentum/

S57] STATE TRIALS, 1 1 James I

and which also findeth * lucida intervalla.' It
was the assertion of him in the law, (Cap. Li-
ters) ' That he did not know his wife, but that
lie had a power to know other women.' But
what wise man doth believe him ? Or what is
there in the text which doth declare it to he
true ? I will end this point with that of our Sa-
viour in the 29th of* St. Matthew, That there
are three sorts of Eunuchs, or men unfit to
marry ; the one is of God's making, the second
is of men's making, and the third is of their
own making. The first are they th.it are past
from their mother's belly, who either are fri-
gid*, or such as have not members tit fur gene-
ration, or some apparent debility- The second
are those who are castrated by men, or by some
violence have that hind red in them, where unto
by nature they are lit in respect of procreation.
1 will not here dispute that id.e inuLjicium9 be-
cause yourselves are flow n from it. The third
hath no coherence with this nobleman. Let
me know then, in which of the former two you
do place it. Is he past from hi* mother's
womb ? Why then do you give him leave to
marry again, that he who hath deluded and
frustrated one, may also delude another ? If he
he in the second rank, why do you not tell us
what the violence is which he had sustained
from men, or from any other creature ? Let us
have, I pray you, some kind of satisfaction,
and let not this amigma in general blind us,
lest the world should say, that wilfully we shut
our eyes against the truth.

6. One reason 1 have more, why I yield not
to this nullity, and then I have done. It is
drawn from the inconveniences which will fol-
low thereupon, if we dissolve the matrimony in
wch case as is now desired. I look first on the
detriment and h:\nn which will fallow, if the
marriage do continue in force and in vigour,
and I do find, that all the inconvenience doth
redound hut to one person Between a lady
and In r husband there is some discontentment,
which time and God's grace may easily remove :
There is then an cud of that controversy. Or,
if the di*agi cement shall never be appeased, it
h no more but one lady doth want that solace
which marital conjunction would afford unto
her ; which many a good woman is enforced to
endure, and yet commits no sin, neither labours
to violate the laws of the church : For suppose
the husband be sirk of some long disease, or
languishing weakness, must not the wife sustain
it with patience and quietness ? Suppose the
husband he captive in some foreign nation, or
prisoner in his own country, whereby occasion
of marital connexion is taken from the wife, no
divine will pronounce, that a separation is in
this case to be sought. I^t a -woman do that
in modesty, which others arc enforced to do
oat of necessity ; and let her expect God's lei-
sure, in fasting and in prayer, and in other hu-
miliation. 1 his is all the inconvenience which
trtseth to one person, if she have not the per-
formance of conjugal duty.

But look on the other side, what are the in-
congruities, or other absurdities, which will

1 6 1 3. — in a Cause of Divorce.

[858

easily follow, if such dissolutions of marriages
be permitted. 1 will name only two. lhe
first is the hazard of violating and annulling of
marriage by an ordinary practice ; for if the
gap be open, who will not run in ? And the
judge mu^t dispense the law indifferently to all,
if the proofs be accordingly; for we may not
say, that it is for noble personages, and great
peers in the state, and not for others of inferior
rank. Whatsoever couple therefore have no
children, and live discontented, come presently
to take part of this general jubilee : And albeit
they know in their consciences, that it which
they attempt is unlawful ; yet, to satisfy their
fancy, they wi 1 collude the one with the other,
and enter a prosecution secretly agreed upon,
howsoever in oju n shew they seem to differ the
one from the other : And who can doubt, but
for money or favour, they may procure wit-
nesses, and others who are to be used by the
formality of the law, to testify mid depose so
much as serves the turn ? By which means we
are at a fair pass, when not only the marriage-
bed shall be defiled, and adulteries made fre-
quent, which is against the second table of the
law, but perjury shall be committed, and God's
name taken in vain, which is repugnant unto
the first table.

A second inconvenience is the danger, Ie«t
both parties w hich are freed from their matri-
mony, should divers vcars after be returned to
it ag<iin, when perhaps the husband by a second
wife hath children, and the wife by a second
husband hath store of issue also; for there is
no doubt in the law, hut if a man supposed to
be frigidns, and therefore divorced, shall after-
wards many, and by begetting of children shew
himself not to be impotent, but apt for genera-
tion, this man is to be taken from his second
woman, and returned to his first wife; and the
woman for whose marriage u nullity was pro-
nounced in respect of the insufficiency of her
mate, must br now tnken from her second com-
panion, and returned to the first. Of this the
reason is apparent, quia deccjta at eccksin ;
they adjudged him to be impotent upon wrong
information, whom experience and truth hath
declared to he potent. And what man ran
foretel, how variety of times may produce other
judgment-*? There may be question of land or
inherirance, of legitimation or illegitimation ;
and a wi«e man would be unwilling to biing it
on the sM£C when he ie. dead and gone, ami to
make it the fable of the world, whether his chil-
dren be born lawfully, or to be reputed in the
rank of bastards. The world is subject to much
mutahiiitv, mid judges of future times may pcr-
adventure be led with the power of some great
persons, nnd perhnps may think upon other
considerations, that it is but a conceit, that a
man should be potent unto another woman, nnd
impotent to his wife ; or that the common law
doth not know any maleficium ; or that thev
do not believe, that there may he * latens impe-
1 dimrmum, perpetuum et incurahile versus
' hanc,' when thev see that the husband is, in
shew of the world, a lusty able man, and hath

859] STATE TRIALS, 1 1 James I. 1 61 3.— Case of the Countess of Essex. [860

no ground of conscience, and therefore tint it
is the hand of God upon thein, who giveth not
a blessing unto that which was unduly sought.
You have thus at large heard my opinion
against the annullution of this marriage. Now,
if you ask me, What would you then hare
done concerning this couple of noble per-
sonages ? My answer is, That I would have a
reconciliation by ail means to be laboured;
and although that be ditlicult to bring about,
Yet it is the more honour when it is effected.
Charity will forgive and forget the highest
offences. It is St. Augustine's judgment,
u That in the greatest breaches between man
and wife, reconciliation is the best ; and the
worthiest pains that can be bestowed, is to
bring that about." There wanteth only one or
more good mediators, and then great things
will be compassed. The disagreement was in-
conceivable between God and man, yet Christ,
that great mediator, did take it away. The
breach was very bitter between England and
Spain, yet our most blessed sovereign, as a
gracious intercessor, did give an end unto it
Let divines be used now, as much as lawyers
have been used heretofore. Take the godly
counsel of the one, which will be given freely,
as you have taken the advice of the other with
much ex pence of money. This I wish for, this
I pray for ; and if my counsel had been used,
before things grew to this height, I would
have used my best means to have wrought an
atonement. But because there is no hope
thereof, and this doth expect a legal decision,
proceed you that please unto this separation.
Give your sentance in script is as you have
declared your opinion in verbis. Five might
have served the turn by the word* of the Com-
mission, if seven had dissented ; but you have
seven suffrages, and therefore proceed ; only
this I crave of the register, that he do make
his act, that this sentence is given, Joanne Epis-
copo London.; I). Joanne Bennet milite; D.
Francisco J nines; D. Thomas Edwards; ditsen-
tientibus, potissituum vero Georgio Archiepiv
copo Cantauriensi renitente.

well proved his potency, by begetting three, or
five, or seven, or ten children upon another
woman. Tliese are pretty things, if a man do
well consider them, and will serve to make dis-
traction between kinsman and kinsman, and
make work for the lawyers, and keep the courts
at Westminster that they shall not be idle ;
which if we could not learn otherwise, vet BuiVs
case before remembered doth teach us, who was
divorced from bis wife in the third or fourth
year of queen Elizabeth ; and when his brother
Lad enjoyed his land until the fortieth year of
the siud queen, then was he thrust out of it,
and the questioned sou, or his heir, was put into
possession of it by trial of law ; a great deal of
money being spent in that contention, and both
civilians and common lawyers in great numbers
were entertained of both sides ; and yet the
controversy was not so appeased, but that of
my certain knowledge, within these three years
it had been raised again, and a strong device
was laid how to bring this about again ; only
myself withstood it, and would not give way
unto it, when I was divers times consulted
thereabout ; conceiving very well that it would
not be long before some piohibition would come
out of some of the king's courts, because the
common law disliked, that men's inheritance,
especially after judgments, should be disturbed,
when the parties whom most of all it concerned,
are dead long before, and cannot answer for
themselves; whereas, peradventure, if them-
selves had been living, they could have answer-
ed that for themselves which otlier men knew
not. And there ought to be a settled course in
all things appertaining to inheritance.

By this time, 1 hope you see, that it is not
out of wilfulness, or prejudicate conceit, that I
have impugned this nullity, but out of ground
of reason, and out of scruple of conscience,
which is it that must accuse me, or excuse me
before the ever-living God. I know you have
heard what other men have said,;md they have
answered for themselves. Upon all which
grounds I make this conclusion, That howso-
ever this matter of separation with great ear-
nestness hath been pursued, yet it is the surer
and the safer way to leave it as we find it, and
in no case to dissolve it. 1 oft remember that
saying, which is frequent among the canonists,
' Tolerahilius est aliquos contra statu La homi-
4 nuin dimittere copulatos, quum conjunctos
4 legitime contra statuta Domini separare.'
That concerneth us who be the judges ; and for
the parties themselves, who perhaps can be
content to be severed, and to marry elsewhere,
let them know this from me, that they may best
expect a blessing from God when they live in
that state where fewest scruples shall ari-e in
their mind : From which whether they shall be
frtc in leaving (heir old conjunction, and be-
taking themselves unto a new, I refer to their
wiser thoughts, when in all probability, if any
cross or thwart shall arise in their new-intended
matrimony, this perplexity and anguish will still
follow their souls, that they have done that
whereof in their truest meditations thev bare

This is the substance of that matter which
the Archbishop of Canterbury, out of certain
Notes which he had drawn up, was ready to
have uttered, and no one material point U
added thereuuto, as appeareth unto me, the
writer hereof, comparing it with the Notes at
such time as I ended the writing of this, which
was on the 28th Sept. 1613, three days after
the time when it should have been spoken.

The Kino's Lfitkr to the Archbishop of

CaNIKRBI'RT."

My Lord ; After I hud received, and read
your papers, which the bishop of Litcltliald
brought me, 1 fouud it very necessary that I ~
should make answer thereunto at my first lei- \
sure : for whereas before, at my la&t meeting V
with you, ye seemed to me to be only as yet
unresolved what sentence to git e in this busi-

661 ] STATE TRIALS, 1 1 James I. 1 G 1 3 .—The Earl of Northampton's Case: [S62

ne»y till you had heard it thoroughly disputed,
that by that means ye might be tuily informed
of the state of the cause ; it appears now by
these papers, that you have, after your last day s
consultation, put on a negative resolution,
grounded upon fundaments of divinity and con-
science, as you think, which hath moved me to
send you herewith my judgment upon your ar-
guments, in regard that I did ever hold it ne-
cessary, that in a matter of this weight all my
commissioners should be ns near of one mind,
as might be ; and therefore I would be sorry
that your private conceits should so blind your
judgment, as to make you and your followers
draw the catluurows (perplex or torment)
•gainst your yoke-fellows ; for that I may now
Open plainly my heart unto you, at my first
reading of your papers from the bishop, I
chanced to cast mine eye first upon the paper
of your argument*, before I had looked upon
your letter, and lighting upon your first words,
* Inasmuch as we do firmly believe, &c.' I
protest I thought it had been some strange
confession of faith, that you had intercepted
amongst some of the sectaries ; but when I
had read out the rest of that first article, God
is my judge, I thought that paper had been
some pasquil made against this divorce, which
coming to your hands ye had sent me, and
therefore without reading any farther therein, I
looked upon your letter, which resolved me of
all these doubts ; but after that I had fully
perused, and rightly considered of all your
papers, I found your principles so strange, and
your doubts so far sought, that I thought it ne-
cessary, as I have already said, to set down
onto you my observations upon them, 6ut to
conclude my letter with that plainness that be-
cometh one of my quality, I miht freely con-
fess, that I find the grounds of your opposition
so weak, as I have reason to apprehend, that
the prejudice you have of the persons is the
greatest motive of breeding these doubts into
yon; which prejudice is the most dangerous
thing that can fall in a judge for misleading of
his mind. And the reason moving me to this
apprehension, is partly grounded upon your

last words to me at your parting from Windsor,
and partly upon a line scraped out in your
paper of doubts : for I am sure you think me
not so blunt a secretary, but that I can read a
line so scraped out. In yonr last speeches with
me, you remember you told me what assurance
you had of the earl's ability out of his own
mouth, which you said you could not but trust,
because he was so religious a nobleman. But
when I told you of the other party's contrary
affirmation, you remember how you used the
word of iniquity ; and how fur your interlined
line seems to have a harmony with this word,
yourself can best judge. Now then, if I would
ask you what proof you have of the one's reli-
gion more than the other's, you must answer
me, by judging upon the exterior; and how
deceivable that guess is, daily experience
teaches us — But with a holy protestation that
I never knew any thing but good in the youug
earl. Was not this the ground of master Ro-
bert Bruse's incredulity, because he knew the
earl of Gowry to be truly religious; and did
not beg a register. See Both well in his preface
of his book ' De viris illustrious/ Ana as for
your judgment of die other party, Christ's pre-
cept is the best answer unto you, * Nolitejudi-
cure.' But if the question were to judge of the
earl's inclination, whether is it likely that you
or I could best judge of it ; I, he having been
bred with my late son, and served him so long;
or you, that never spoke with him but once or
twice in your life, and never knew either good
or evil of him but out of his own mouth ? 1 will
conclude, therefore, with inverting the argu-
ment ; that if a judge should have a prejudice
in respect of persons, it should become you
rather to have a kind of faith implicit in my
judgment, as well in respect of some skill I
have in divinity, as also that I hope no honest
mnn doubts of the uprightness of my consci-
ence ; and the best thankfulness that you that
are so* for my creature, can use towards me, is,
to reverence and follow my judgment, and not
to contradict it, except where you may demon-
strate unto me that I am mistaken, or wrong
informed; and so farewel. James K.

97. The Earl of Northampton's Case: Mich. iO James I. a. d.

1613. [Coke's Reports, 132.]

T HE Attorney general informed against Tho.
Gooderick, gent, sir Richard Cox, kt. Hen.
Vernon, gent. Henry Minors, serjeant of the
waggons, Tho. Lake, gent, mid James Ingram,
merchant, ore tenia in the Star-chamber; the
last day of the Star-chamber, and charged
Gooderick that he had spoken and published of
the earl of Northampton, one of the grandees
tod peers of the realm, one of the king's Privy
Council, lord Privy Seal, and lord guardian of
the Cinque-ports, divers false and horrible scan-
dals, teu. that more Jesuits, Papists, &c. have
come into England, since the earl of Northamp-

ton was guardian of the Cinque-ports, than
before.

i>. That the said carl had writ a book openly
against Garnet, &c. but secretly he had writ a
letter to Bellarmine, intimating that he writ
the said book * ad plucandum regem, sive ad
' faciendum [placendumj populum,' and re-
quested that nis hook mipht not be answered ;
and that the archbishop of Canterbury had cer-
tified it to the king, and that the said Goode-
rick did relate it to one Dewsbury, a bachelor
in divinity, who had acquainted the said earl
with it. Gooderick being examined, confessed

663] STATE TRIALS, II Jam es I. 161 3.— The Earl qf Northampton'* Que. [864

other, or of any the great officers of the realm'
ut 2 It. 2, c. 5, and the king is contained with-
in the act of West. 1. cap. 34, as appears in
Dyer 5. Mar. 155.

3. As to the third point it was resolved, that
if one hear such false and horrible rumours,
either of the king, or of any of the said grandees,
it is not lawful for hun to relate to others, that
he hath heard J. S. to say such false and horri-
ble words; for if it should be lawful, by this
means they may be published generally, &c.
And this doth appear by the said statute, viz
that the party shall be imprisoned until lie find
out the party who spoke thcm^ which prom
that it was an offence, or otheiwise he should
not be punished for it by fine (for tliis is implied)
and imprisonment.

4. It was also resolved, that the offenders at
bar, if against them the proceedings had been
by indictment upou these statutes, no judgment
could be had against them that they should be
imprisoned until they found their aathor : for,
for example, Gooderick did not relate to Dews-
bury that he heard from sir Richard Cox, but
he related the same words as of himself: and
for this no judgment can be given against him,
that he shall be imprisoned until he find his au-
thor ; for this that he ought to be indicted for
the words which he himself did speak, and then,
' de non apparentibus ft nonexisteutibus eadem
' est ratio.' When the indictment is general
without any relation to a certain author, the
judgment, which always ought to be given of
mutter apparent within the record, cannot be
that he snail be imprisoned, until he hatb found
his author.

And it was resolved, that if A. say to B.
" did you not heap, that C. is guilty of treason,"
&c. this is tantamount to a scandalous publica-
tion : and in a private action for slander of a
common person, if J. S. publish that he hath
heard J. N. say, that J. G. was. a traitor or
thief; in an action of the case, if the truth be
such, he may justify.

But if J. S. puliish ihat he hath heard gene-
rally without a certain author, that J. G. \va*
a traitor or thief, there an action tur It case
lieth against J. 8. fortius, that he hath not
given to the party grieved any cause of action
against nny, but against himself who published
the words, although that in truth he might hear
them ; for otherwise this might tend to a great
slander of an innocent : for if one who ^ath
lasam phuntasiaiu, or who is a drunkard, or of
no estimation, speak scandalous word*, if it
should be lawful for a man of credit to report
thetn generally, that he had heard scandalous
words, without mentioning of his author, that
would give greater colour and probability that
the words were true in respect of the credit of
the reporter, than if the author himself should
be mentioned, for the reputation and good name
of every man is. dear and precious to him : and
a record was vouched in Mich. 33 and 3*4 Ed.
and in the 30 Ass. pi. 10, and in the exchequer,
Mich. 18 E. 1, rot. 4.

Note, that all the Commissions of Oyer and

the words spoken ; but to extenuate his of-
fence said that he was not the first founder:
and he vouched the said sir liichard Cox, who
confessed that he related to Gooderick the
matter concerning the book of the carl, and his
letter to Bellarmine, but not the words con-
cerning the Cinque-ports; and Unit the arch-
bishop of Canterbury had informed the king of
it, to the intent that the earl of Northampton
should not be lord treasurer, and to extenuate
his otfence, he vouched the said Vernon, who
upon examination confessed that which Richard
Cox had published, but that he was not. the
first author, but he cited the said Lake, who
did likewise confers what Vernon had said, but
that he heard it from Serjeant Nichols, who be-
ing examined confessed it; and with all, that
one Speaket related it to him, and that he had
heard it from one James Ingrain, and James
Ingram being examined, confessed the words
concerning the said book of the earl, and of the
lettter to Bellarmine ; and that in t|ie month
of October he heard the said words of two Eng-
lish fugitives ut Leghorn, and never did publish
them until the death of the carl of Salisbury,
treasurer, who died in May last : and all the
said defendants confessed at the bar, all that
with which they were charged, and at the hear-
ing of this case were eleven judges of law,
Fleming justice being absent propter agritudi-
nem.

And so it was resolved, that the publishing
of fairs rumors, either concerning the king, or
of the high grandees of the realm, was in some
cases punished by the common law : but of this
wera divers opinions. Yet it was resolved in
general :

1. Touching the matter and quality of the
words. 2. Touching the persons of whom they
are spoke. 3. The manner of contrivance, or
publishing of them. 4. Touching the punish-
ment, for which cause divers acts have made
declaration, and have put things in certainty.

And first of all, as to the words or rumours
themselves.

1. They ought to be false and horrible. 2. Of
which discord or slander may arise betwixt the
king and his people, or the grandees of the
realm, West. 2. cap. 24, or between the lords
and commons, 2 it. 2, c. 53, by which «;reat
peril and mischief may come to all the realm.
lb. The subversion and destruction of the realm,
ibidem. And for this the said act of 2 R. 2,
against rumours, fal-e and horrible messages
(mesoignes) i. e. lies.*

2. As to persons, they arc declared to be
prelates, dukes, earls, barons, and other nobles
and grandees of the realm, and also of the
chancellor, treasurer, clerk of the privy seal,
steward of the houshold of our sovereign lord
the king, justice of the one bench and of the

* Note, these statutes were occasioned by
reason of some scandalous reflections, that had
been raised by William Wickham, and the
clergy, against John of Gaunr, &c. et c con-
tra.

RC5] STATE TRIALS, 12 James I. IG\ 1.— Proceedings against (he Up. of Lincoln. [866

Terminer give authority to enquire, ' de illici-
• tis verborum propulmiunibus.' Vide le stat.
5 R. 2, cup. G, and 17 li. tf, cap. 8, concerning
rumours, und in 3 Ed. *l, in the exchequer,
Henry liray spoke of John Fo\lee buron of the
exchequer: il was rebuked, that the judgment
in an indictment upon the said statutes, when
the words are spoken generally, without relation
to a certain author, is, that the offender shall
Le fined and imprisoned, for th s is implied und
included in the said statute*, us an incident to
die offence, although that it is nut expressed.
Also the party grieved may h wc an action
' de scandalo uvaguatum,' and recover his da-
mages. Also the party grieved, and the kind's
attorney, if the offenders deny it, may exhibit a
bill in the Star-chamber against the offender, in

which the king th;dl have a fine, and the party
shall be •aiprisoned, and the c.iurt of Star-cham-
ber may inllict corporal p!inis)itneut,as to stand
upon the pillory, and to ha\c papers ab<jut his
head.

Ami if the offenders confess it, then to pro-
ceed ore tenus upon thtir own confession ; and
for the publication of the said words, all the
defendant b were punished by all the presence,
' una voce niillo contradiceute,' bw fines and
imprisonments; and Good crick aTid Ingram
were lined the most, for that Gooderkk had no
authority for the words concerning the Cinque-
ports, nor could Irgrnni find any author for to
vouch, that, he heard by persons unknown at
Leghorn in foreign parts; und therefore it was
taken as a fiction ot his own.

98. Proceedings against Dr. Richard Neile, lji&hop of Lincoln,
for Words spoken in the House df Lords: 1'2 James, a. d.
1G14.* [1 Cobb. Pari. Hist. 1259-]

* had taken the said oaths might not enter,

* safely, into conference of the said nia«:er.

* Aliinning further, That it did strike, not at a
' branch, but at the root of the prerogative of
' the imperial crown ; and that he doubted

* lest in such a Conference, os was desired,
' there would, from some of the committees of
' that house, proceed 8or,ie umiutilul and scdi-
' ticjiis speeches, unlit lor their lordships to
' h< ar, tending to a dangerous rent and distrac-

* tion of both houses, and to make an alienation
' between the king and his subjects.' That of
such scandal their house is m> sensible, that
thev have sent those mesieniiL-rs to bi<*nify
their pricf, and that they held the Lords so ho-
nonrable, tint they c.miwt bat also take nrti n
thereof. \\ lu*retorc, that huu?e did doi;e.
that their louMiips will join \»ith them in some
toursc to trive them satisfaction for v> great a
wrung done to the Commons ; which thty li.no
taken so to heart, tint they have diV: mined
to forbear all parliament matter, until they may

parliament?' ' The bishop of Duihain u .id lv
answered, 'God forbid, sir, but you *>'. ii!i:
you arc the brcaih of our nostril.' Where-
upon the kin«j turned an 1 :>aid to the Li&linp
of Wim-ivstcr, * Wed. i.iv 1 inl, what ewv von ?'

* .Sir, replied the bishop,4 I have no ^k : i 1 ro
judtre of pailiair.r:»uarv ca-is/ '1 lit k:i".- an-
swered, ' No put-u'!':, my bird ; au^-.ur me
urgently/ * '! i »•:), Sir,' ^\\\ )\i\ * I u i.d„ il is
Inwfcl f«u" yon to u*\? my hniitn-r N:\iUA 1110-
iiey ; fnv he nftVr* i:.' Air. W. :!!.::• said, t]:e
company was pleaded -\iiii tht* miMwr, Hud the
wit of i* seemed to :i'lic! t\..> kin;: ; fir a cer-
tain lord cnmmv in vwn after, his majesty
cried out. i Oh, i;iv lord, th« y sav you lig with

my lady .' 'No, ^lr,* s^yi his lordship in

contusion ; c but I like h«T "onipany, because mic
has ko much wit.* ' >\ hv then,' says the kins.

f^do you not ii^ with my lord of Wmchtstor
tlicrc r'

3 K

ON May- 23, 1014, a Message from the
House of Commons was sent up to the Lords,
by sir Edw. Hobby and others, in these words :
*• That at such time as the knights, citizens,
and burgesses of the Commons House of Par-
liament sent up to the Lords a Message, pray-
ing a Conference with their lordships about
Impositions: they hoped that, neither out of
the words nor matter of the Message, it had
been possible to have framed any sinister or
unworthy construction. Tlwt notwithstanding,
by public and constant fame, they had heard,
to their hearts grief, that one in this place
and within these walls, naimly, the lord bishop
of Lincoln (Hie hard Neile), in order to dissuade
tbe Lords from a Conference s-> desired, a*
aforesaid, did use wurdi tu the effect following,
or the «amc word*, \i*/. 'That the matter,
'whereof conference was by that house desired,
' is a noli me tangcrc ; in conferring, also,
' that the taking the oaths of allegiance and
* supremacy w an impediment; so, as whofo

* The following story, printed in the account
of Waller the poet's Life, 1712, ami repented
by Harris in his Life of James 1, and also by
Hume in his History, and Johnson in his Life
of Waller, throws some lLdit on this bishop's

ft * * ' A

Character. " Waller In-fjueuted the Court of
James 1, «*hcrc he heard a very remarkable
cocier&ntion, which the writer oi'thc Life pre-
fixed to 1uj» Works, who seems to have been well
{OJbniied of facts, though he mav sometimes err
in chronology, has delivered as indubitably cer-
tain : He found Dr. Andrews, bishop of Win-
chester, and J)r. Neale, bishop of Durham,
Handing behind his majesty's chair; and there
happened something extraordinary, con ti fines
this writer, in the conversation those prelates
lad with the king, on which Mr. Waller did
often reflect. His majesty asked the bislmps,
1 My lords, cannot I take my subjects' money.
When 1 want it, without all thi* formality of

VOL. II.

£G7] STATL TRIALS, 12J.oitsI. !ol4.— l*roc«din»t against tlxBp.if Lincoln. [SG»

receive Answer from the Lords ; w herein they |
doubt not hut their lordships will <Val nobly :
wiih them, and they desire it may be speedily." j

Nr Edward Hobby being a eked by the lurd ■
chancellor, Whether he had in writing the
Mt-range so delivered, as aforoaid ? Answered,
lie hud not. l'he lords tneri returned Answer,
" 1 hat they had taken notice of the Message,
and will take the same into further considera-
tion, as the weight thereof required*: wherein
they will have respect both to their honours
and the honour ot the other house; and will
send them further Answer." After this, a short
Memorandum is entered on the Journals, inti-
mating, That before the Answer, above speci-
fied, was agreed on, the Serjeant of the Lower
House came to the gentleman usher of the
Lords, to learn, Whether their lordships would
send Answer to the Message on that day, or
not ? To which the gentleman usher, with the
privity of the Lord**, answered, as from himself,
That he knew not.

May 30. The Lord Chancellor moved the
house to consider and resolve of an Answer to
be sent to the Message or Complaint, which
they lately received from the other house,
touching the bisliop of Lincoln. And, by or-
der, the archbishop of Canterbury produced a
copy of one ready drawn, for that purpose,
which being read, was to this effect : " That the
Lord?, having received from 'the Commons a
Complaint against the bishop of Lincoln, have
seriously entered into consideration of it, and
do now return this Answer, That their lord-
ships woold take very tenderly that any un-
worthy aspersion should be laid on that body,
which they so much respect ; and with whom
they desire to hold all good correspondence
and agreement. But forasmuch as the Com-
plaint scemeth to be grounded, not upon di-
rect or certain proof, but only upon common
public fame ; their lordships do not think that
Common Fame only is a sufficient ground,
whereon they may proceed as in this cause is
required. Nevertheless, their lordships are so
respective of any thing that may concern that
house, that when they shall be more certainly
informed, in direct and express terms, what
the words * ere wherein the lord bishop of Lin-
coln is to be charged, and how the same are to
be proved, they will proceed therein so cllectu-
ally, according to honour and justice, as it
• shall thereby well appear how careful they are
to gire to that house all good satisfaction in
this business thnt may be, and to omit nothing
that can be justly or lawfully done in that be-
half." This Answer was approved on by tlie
whole house, and sent in writing to the Com-
mons, by nic»MMigers of their own; with this in-
stiuclion, Thai if they, of the Lower House,
should require to have the Paper* then the mes-
sengers were authorized to deliver the same,
which they did accordingly.

May 'oUt. Another Message from the
commons, brought by sir Roger Owen and
others; who, having first repeated the sub-
stance of their lordships Answer of yesterday,

acquainted this house : " That though the com-
mons did not take common and public Fame
to be a suriicient ground or proof, by a le^al
and ordinary course of justice, in proceeding
again»t any man ; yet they held it enough to
induce the lords of that house to take the
matter into consideration. And albeit they
did not set down the words, in particular ; yet
was the matter, as they conceive, sufficiently
laid down when in effect they said, " That the
lord bishop of Lincoln, in this house to dissuade
the lords from a Conference with them touch-
ing Impositions, termed the prerogative, \c. a
noli me tungrre ; insinuating that the tak-
ing of the Oath of Supremacy and Allegiance
did restrain a man from treating of that busi-
ness : also he doubted but in the Conference
would be used, or spoken, some un dutiful and
seditious words, not fit for their lonUhips to
hear, or words to the like or worse effect.
That now the Commons do desire the Lords,
if these words were not spoken, so to signify
it to the house ; otherwise, if they were used,
then they hope their lordships will do as they
have promised. lastly, from the Commons,
he said further, That they knew not what
other course they coujd have taken ur bring
this matter to examination, or otherwise have
any undutiful speech which may be moved in
either house, called in question."

After sir Roger Owen had delivered hit
Message, the lord chancellor asked him, If lie
had it in writing? To which he answered in the
negative. The lord chancellor, then acquainted
him. That the house would take his message
into consideration, and tend Answer, if they
could, before they rise : otherwise, will let
them know as much. Accordingly, the same
day, the lords sent to acquaint the other house,
" That they had considered of their last Mes-
sage, and, in debating thereupon, the lord bishop
of Lincoln had humbly intreated that he might
be heard to explain himself; which being
granted unto him, he had made a solemn pro-
testation, on his salvation, that he did not
speak any thing with any evil intention to the
House of Commons, which he doth with all
hearty duty und respect highly esteem. Ex-
pressing, with many tears, his sorrow that his
words were s<» misconceived and strained far-
ther than he ever intended them ; and that his
speech should occasion so much trouble to
their h»rd»hips, or that the iower house should
take offence at it. Which submissive and in*
cenuous behaviour of hi?, had given this satis-
faction to their lordships, that, howsoever the
words might sound, his intention was not as it
hath been taken. And their lordships do as-
sure the Commons. That if they had conceiv-
ed tlie said bishop's words to have been spoken
or me;mt to have cast any aspersion of sedition,
or undulifulness unto their house, (us it seems,
report has carried it to them) their lordships
would forthwith have proceeded to the censur-
ing aud punishing thereof with all severity.
Nevertheless, though their lordships have
thought tit to signify their carefulness at thii

869] STATE TRIALS, 12 James I. 1615.— 77* Case qf Edmund Veacham. £870

retain all good correspondence with them ; yet
their lordships nre of opinion, That hereafter
no inemher of their house Ought to be called
in question, when there is no other ground for
it, but public and common fame."*

time to give them contentment, for the better
expediting his majesty's great business, and to

• On this transaction Hume's observations
are, " So little fixed at this time were the rules
of parliament, that the commons complained
to the peers of a speech made in the upper
bouse by the bishop of Lincoln ; which it be-
longed only to that house to censure, and which
the other could nut regularly be supposed to be
acquainted with. These at least are the rules
established since the parliament became a real
seat of power, and scene of business. - Neither
the king mu^t tuke notice of what passes in
either bouse, nor either house of what passes in
the other, till regularly informed of it. The

commons, in their famous protestation 1621,
fixed this rule with regard to the king, though
at present they would not bind themselves l>y
it. But as liberty was yet new, those maxims
which guard und regulate it were unknown and
unpractised'' — Concerning the sufficiency of
Common Fame as a ground for parliamentary
proceedings,* see the Debates in the House of
Commons in 1626 concerning the duke ojf
Buckingham : 2 Cobb. Pari. Hist. 52 et seq.

99. The Case of Edmund Peacham, for Treason : 12 James I.*
a.d. 1615. [Croke Car. 125. Bacon s Works.]

THE Report of this Case is so extremely you to have preached them ? if by treatise, to
nty, that it would not be inserted as a whom did you inteud to dedicate, or exhibite,

or deliver such treatise?

5. What was the reason, and to what end
did you first set down in scattered papers, and
after knit up, in form of a treatise yr sermon,
such a muss of treasonable slanders against
the king, his posterity, and the whole state ?

6. What moved you to write, ihe king might
be striken with death on the sudden, or within
eight days, as Ananias or Nabal; do you
know of any conspiracy or danger to his per-
son, or have you heard of any such attempt ?

7. You have confessed that these things were
applied to the king; and that, after the ex-
ample of preachers and chronicles, kings infir-
mities are to be laid open : this sheweth plainly
your use must be to publish them, shew to
whom and in what manner.

8. What was the true time when you wrote the
said writings, or any part of them ? and what
was the last time you looked upon them, or pe-
rused them before (hey were found or taken?

9. What moved you to make doubt whether
the people will rise agakist the king for taxes
aud oppressions ? Do you know, or have you
heard, of any likelihood or purpose of any
tumults or commotion ?

10. What moved you to write, that getting
of the crown-land again would cost blood, and
bring men to say, This is the heir, let us kill
him ? Do you know, or have you heard of any
conspiracy or danger to the prince, for doubt
of calling hack the crown land.

11. What moved you to prove, that all the
king's officers ought to be put to the sword ?
Do you know, or have you heard if any peti-
tion is intended to be made against the king's
council and officers, or any rising of people
against them ?

12. What moved you to say iu your writing,
that our king, before his coming to the king-
dom, promised mercy and judgment, but we
find neither? What promise do you mean of9 and
wherein hath the king broke the same promise?

as a

distinct article but for the important matters
which arose out of the Case, aud are here in-
serted after the Report; which is merely this:

" Edmund Peacham was indicted of Treason
for divers treasonable passages in a Sermon
which was never preached, nor intended to be
preached, but only set down in writings, and
wand in his study: he was tried and found
guilty, but not executed. — Note, That many
of the Judges were of opinion, that it was not
Treason."

The following passages relating to this Case
are extracted from Birch's edition of Bacon's
Works, and are all taken from lord llailes's
Memorials, &c. and Rawley's Resuscitatio :

IsTTEftitoGATOBiES whereupon Peacham is to

be examined.

Questions in general.

1. Who procured you, moved you, or advised
yoa, to put in writing these traiterous slanders
which you have set down against his majesty's
person and government, or any of them?

2. Who gave you any advertisement or in-
telligence touching those particulars which are
contained in your writings ; as touching the
sale of the crown lands, the deceit of the king's
officers, the greatness of the king's gifts, his
keeping divided courts, and the rest ; and who
hath conferred with you, or discoursed with
you, concerning those points ?

3. Whom have you made privy and ac-
quainted with the said writings, or any part of
them ? and who hath been your helpers or
confederates therein ?

4. What use mean you to make of the said
writings ? was it by preaching them in sermon,
or by publishing them iu treatise ? if in ser-
mon, at what time, and in what place meant

■

• Sec Foster's Crown. Law, p. 199^ oqo,
and 1 Hawk. ch. 17, s. 32. Carih. 405. 4 Bl.
Com. 80.

, Peacham this

■lure ; notwitli-

n from liiin, lis

:c and insensible

971] STATE TRIALS, 12 Jambs I. 161 J— The Cate qf Edmund Feodum, [919

wtih jug Lice Houghton; and Mr. Sol ititor with
justice Dodderidge. This done, I took my
tallows aside, and advised that they should
presently spciik with the three judges, before I
could speak with my lord Coke, for doubt of
infusion ; and that they should not in any case
make any doubt to iho judges, as if they mis-
trusted they would not deliver any opinion apart,
hut speak resolutely to- them, and only make
tlteir coming to be, to know what time they
would appiimt to be attended with the papers.
This sorted not an>isa ; for Mr. Solicitor came
to me this evening, and related to mo that he
had found judge Dodderidge very ready to give
opinion in secret; and tell upon the same
reason which upon jour majesty's first letter I
had used to my lord Coke at (lie council- table;
which was, tint every judge was bound ex-
pressly by his oath, to give your majesty coun-
sel when lie win called ; and whether he should
do it jointly or severally, that rested in your
majesty's good pleasure, as you would returns
it, And though the ordinary course was to
assemble them, yet there might intervene cases,
wherein the other course vttij more convenient.
The like answer made justice Crook. Justice
Houghton, who is a soil man, seemed desirous
first to coaler; alledgiug that the other three
judges bad all served the crown before they
were judges, but that lie had not been much
acquainted with business of this nature.

We purpose therefore foithwith, they shall
be made acquainted with the papers ; and if
that could be done as suddenly as this was, I
should make sm ill doubt of their opinions i
and howsoever, I hope, force of law and prece-
dent will bind (hem to the truth: neither am I
wholly out of hope, that my lord Coke himself,
when I have In some dor!: manner put biro in
doubt that be shall be left alone, will not continue
singular. Your majesty's mast humble and
devoted subject and servant, Fa. Bacos. Jan.
87, 1814. lp.S.j

To the King, touching Peachara's Business, &c.
It may please your excellent majesty ; I re-
ceived this morning, by Mr. Murray, a message
from your majesty, of some warrant arid con-
fidence that 1 shr.uld advertise your majesty of
your business, wherein I bad part : wherein I
am first humbly to thank your majesty for your
good acceptation of my endeavours and ser-
vice, which I am not uhlc t» furnish with any
other quality, save faith and diligence. Foe
Peeclmm's case, I have, since my last letter,
been with my lord (Joke twice; once before
Mr. Secretary's going down to your majesty,
and once since, which was yesterday : at the
former of which times I delivered him Peach-
am's papers : and at this litter the precedents,
which I had with care gathered and selected i
for these degrees and order the business re-
quired. At die firmer I told him that he knew
my errand, which stood upon two points ; the
one to inform him of the particular case of
Fcacham's treasons, for I never gave it other
word to him, the other, to receive tin opinion

There follows in the hand-writing of secre-
tary Win wood,

" Upon these Intcrrogatoi
day was examined before t
between torture, and after
Standing, no tiling Could be di
i:li!l |icT-i:>tiriJ in his obstilu
denials, and former answers. Raphe Wi
Jul. Caisar, Fr. Bacon, II. Mountngue, Ger-
vase Helwysse, Ran. Crewe, Henry Velverton,
Fr. Cottington. Jan. the 19th 1614." [O. S.j

To the King, concerning Peach tun's Cause.

It may please your excellent majesty ; It
grieved! me exceedingly that your majesty
should be so much troubled with this matter
of Peachum, whose raging devil see-net h to
be turned into ft dumb devil. Rut although we
arc driven to niako our way through questions,
which I wish were otherwise, yet, 1 hope well,
the end will be good. Hut then every man
must put to his helping hand; fur else I must
say to Your majesty, in this atid the like cases,
as St. Paul said to the centurion, when some of
the mariners had an eye to the cock-boat, ' Ex-
cept these stay in the ship ve cannot be safe.'
I hnd in my lords great una worthy care of the
business: and for my part, I hold my opinion
and am strengthened in it by some records that
I have found. God preserve your majesty.
Your majesty's most humble and devoted sub-
ject and servant, In. Bacon. Jan. 31, 1614.

to.s.]

To die King, touching Peacham's Cause-
It may please your excellent majesty ; This
day in the afternoon was read your majesty's
letters of direction touching Penchant • which
fcrcanJe it wnwmcth properly the duty of my
place, I thought it fit for me to give your ma-
jesty both n speedy a ml u private account thereof ;
that your majesty, knowing things clearly bow
they pass, may have die true 1'ruft of your own
wisdom and dear-seeing judgment in govern-
First, for the regularity which your majesty,
as a ma star in business of estate, doth pru-
dently prescribe in examining and taking exn-
niiniiliiuii, 1 subscribe to it ; only I will say for
myself, that I was not at this time die- principal

I'or the course your majesty directed] and

ro[uui;in(letli for die feeling* of the judges of
the King's Bench, their several opinions, by

di.'fi'-utmg vii «Ihi and rm c •tif'cvj .

we diil lint find nn encounter in the opinion of
my Icnl Coke, who seemed in affirm, that such
pniticul.vr aud, as he called it, auricular taking
nt' ij|>itii(ius was inn according to the custom of
this realm; and seemed to divine, that his
brethren would never do it. But whtn I re-
I'lieil, that it was our duty to pursue jourtno-
jenty's directions, and it wero nut amlsj.lor his
lordship to leave his brethren to their owo an-
swers; it was so concluded; and bit lordship
did desire that I might confer with himseli ;
ami Mr. Serjeant Montague was named to
tucnk with justice Cr»ok ; Mr. scrjeant Crew

»S]

STATE TRIALS, 12 James I. ]6l5.-/or High Treason.

[874

to myself, and in secret, according to my com-
mission from your majesty. At the former
time be fell open the same allegation wluch he
had begun at the council-table ; that judges
were not to give opinion by fractions, but en-
tirely according tu the vote whereupon they
should settle upon conference : nnd that this
auricular taking of opinions, single and apart,
was new and dangerous ; and other words
more vehement than I repeat. I replied in
chril and plain, terms, that I wished his lord-
ship, in my love to him, to think better of it :
for that this, tliat his lordslup was pleased to
put into great words, seemed to me and my
fellows, when we spake of it amongst ourselves,
a reasonable and familiar matter, lor u king to
consult with his judges, either assembled or
selected, or one by one. And then to give
him a little out-let to save his first opinion,
wherewith he is most commonly in love, I
added, that judges sometimes might make a
suit to be spared for their opinion, till they had
spoken with their brethren ; but if the king
upon his own princely judgment, for reason of
estate, should think it fit to have it otherwise,
and should so demand it, there was no de-
clining.* nay, that it touched upon a violation
of their oath, which was to counsel the king,
without distinction whether it were jointly or
severally. Thereupon, 1 put him the cas>e of
the privy counsel, as if your majesty should he
pleased to command any of them to deliver
their opinion apart and in private ; whether it
were a good answer to deny it, otherwise than
if it were propounded at the table. To this he
laid, that the cases were hot alike, because this
concerned lite. To which I replied, that ques-
tions of estate might concern thousands of lives,
and many things more precious than the life of
a particular: as war and peace, and the like.
To conclude, his lordship tanquam cxitum que-
rent, desired me for the time to leave with liim
the papers, without pressing him to consent to
deliver a private opinion till he had perused
them. I said I would ; and the more willingly,
because I thought his lordship, upon due con-
sideration of the papers, would find the case to
be so dear a case of treason, as he would make
no difficulty to deliver his opinion in private ;
tad so I was persuaded of the rest of the
judges of the king's bench, who likewise, as I
partly understood, inude no scruple to deliver
their own opinion in private; whereunto he
•aid, which I noted well, that his brethren were
was men, and that they might make a shew as
if they would give an opinion, as was required;
but the end would be that it would come to
tail: they would say, they doubted of ir, and
w pray advice with the rest. But to this I an-
•wered, that I was sorry to hear him say so
j*acb, lest, if it came so to pass, some that
loved him not might make a construction, that
that which he had foretold, he had wrought.
Tbus your majesty sees, that as Solomon saitb,
grtsws nolentis tanquam in sepi spina rum/ it
catcheth upon every thing. The latter meet-
Uf is yet of more importance ; for then, com-

ing armed with divers precedents, I thought to
set in with the best strength I could, and said
that before I descended to the record, I would
break the case to him thus : that it was true we
were to proceed upon the ancient statute of
king Edward the- 3rd, because other temporary
statutes were gone ; and therefore it must be
said in the indictment, * Imagiuatus est et
' compassavit mortem et final cm deitructionem
' domini regis:7 then must the particular trea-
sons follow in this manner, namely, * et quod

* ad pcriinplendum nefandum proposituih suum,
1 composuit et consciipsit quendam detestabi-
' 1cm et venenosum libelluin, sive scriptum, in

* quo, inter alia proditorin, continetur, &c.'
And then the principal passages of treuson,
taken forth of the papers, are to be entered in
hac verba ; and with a conclusion in the end,
' Ad intentionem quod ligeus populus et veri
( subditi domini regis cordialem suum ainorem
' a domino rege retraherent, et ipsum dominum
' regem relinquerent, et guerram et insurrectio-
' nem contra euin levarent et focerent, &c/ I
have in this form followed the ancient stile of
the indictments for brevity sake, though when
we come to the business itself, we shall enlarge
it according to the use of the latter times. This
I represented to him, being a thing he is well
acquainted with, that he might perceive the,
platform of that was intended, without any
mistaking or obscurity. But then 1 fell to the
matter itself, to lock him in as much as I could,
namely, That there he four means or manner*,
whereby the death of the king is compassed
and imagined. The hist by some particular
fact or plot. The second, by disabling his
title ; as by affirming, that he is not lawful
king; or that another ought to be king; or
th'.tt he is an usurper ; or a bastard ; or the
like. The third, by .tdijcctiug his title to the
pope ; ;Mid thereby making him of an absolute
kin?: a conditional king. The fourth, by dis-
abling his rcgimenr, and making him appear to
be incapable or iudign to reign. These tilings
I relate to your majesty in sum, as is fit :
which, when I opened t<> my lord. I did insist
a little more upon, with more etlicacy and edge,
and authority of law and record, than I can
now express. Then I placed Penchant's trea-
son within the last division, agreeable to divers
precedents, whereof I had the records ready ;
and concluded, that your majesty's safety and
life and authority was thus by law insconsed
and quartered ; nnd that it wa-> in vain to for-
tify on three of the sides, and so leave you
open on the fourth.

It is true, he heard me in a grave fashion
more than accustomed, and took a pen and
took notes of my divisions ; and when he read
the precedents ana" records, would say, this yon
mean falleth within your first, or your second,
division. In the cud I expressly demanded his
opinion, as that whereto both he and 1 wore
enjoined. But he desired me to leave the pre-
cedents with him, that ho might advice upon
them. I told him the re*t of my fellows would
dispatch their p:>.rt, and I should be h< hind

875 J STATE TRIALS, 12 James I. 1615.— The Case qf Edmund Peacham, [676

with mine; which I persuaded myself your ma-
jesty would impute rather to bib backwardness
than my negligence. He said, as soon as 1
should understand that the rest were ready, he
would not be long after with his opinion. Your
majesty's most humble and devoted subject and
servant, Fr. Bacon. Jan. SI, 1614. [O. S.]
" For Peacham, the rest of my fellows are
ready to make their report to your majesty
at such time, and in such manner, as your ma-
jesty shall require it. Myself yesterday took
my lord Coke aside, after the rest were gone,
and told him all the rest were ready, and 1 was
now to require his lordship's opinion, according
to my commission. He said, I should have it;
and repeated that twice or thrice, as thinking
he had gone too far in that kind of negative, to
deliver any opinion apart, before ; and said, he
would tell it me within a very short time,
though he were not that instaut ready. I have
tossed this business in omncs partes, whereof 1
will give your majesty knowledge when time
serveth. God preserve your majesty. Your
majesty's most humble and devoted subject and
servant, Fr. Bacon. Feb. 11, 1614. [O. S.]

To the King, about a Certificate of lord chief

justice Coke.

It may please your excellent majesty ; I
send your majesty inclosed my lord Coke's
answers ; I will not call them rescripts, much
Jess oracles. Tbey are of his own hand, and
offered to me as they arc in writing; though 1
am glad of it for mine own discharge. 1 thought
it my duty, as soon as I received them, instantly
to send them to your majesty ; and forbear,
for the present, to speak farther of them. J,
for my part, though this Muscovia weather be
a little too hard for. my constitution, was ready
to have waited upon your majesty this day, all
respects set aside ; but my lord treasurer, in
respect of the season and much other business,
was willipg to save me. I will only conclude
touching these papers with a text, divided I
cannot say, ' Oportet isthsec fieri ;' but 1 may
say, ' Finis autem nondum.' God preserve
your majesty. Your majesty's most humble
and devoted subject and servant, Fa. Bacon.
14 Feb. 1614. [O. S.]

Sir Francis Bacon, to King James.

It may please your excellent majesty ; I
perceive by the bishop of Bath and Wells, that
although it seemeth he hath dealt in an effec-
tual manner with Peacham, yet he prevaileth
little hitherto ; for he hath gotten of him no
new names, neither doth Peacham alter in his
tale touching sir John Sydenham.

Peacham standeth off in two material points
dc novo.

The one, he will not yet discover into whose
hands he did put his papers touching the con-
sistory villainies. They were not found with
the other bundles upon the search ; neither
did lie ever say that lie had burned or defaced
them. Therefore it is like they are in some
persons hands ; and it is like again, that that

Eerson that he hath trusted with those papers,
e likewise trusted with these others of tbc
treasons, I mean with the sight of them.

The other, that he taketh time to answer,
when he is asked, whether he heard not from
Mr. Paulet some such words, as he saith, he
heard from sir John Sydenham, or in some
lighter manner.

I hold it fit, that myself and my fellows, go
to the Tower, and so 1 purpose to examine
him upon these points, and some others ; at
the least, that the world may take notice tliat
the business is followed as heretofore, and that
the stay of the trial is upon farther discovery,,
according to that we give out.

I think also it were not amiss to make a
false fire, as if all things were ready for his
going down to his trial, and that he were upou
the very point of being carried down, to see
what that will work with hiin.

Lastly I do think it most necessary, and a
point principally to be regarded, that because
we live in an age wherein no counsel is kept,
and that it is true there is some bruit abroad,
that the judges of the King's Bench do doubt
of the case, that it should not be treason ; that
it be given out constantly, and yet as it were
a secret, and so a fame to slide, that the doubt
was only upon the publication, in that it was
never published, for that (if your majesty mark-
eth it) taketh away, or least qualifies the dan-
ger of the example; for that will be no man's
case.

This is all I can do to thridd your majesty's
business with a continual and- settled care,
turning and returning, not with any thing in
the world, save only the occasions themselves,
and your majesty's good pleasure. God preserve
your majesty. Your majesty's most humble
and devoted subject and servant, Fr. Bacok.
Feb. 28, 1(314. [O. S.]

Sir Francis Bacon to King James.

May it please your majesty ; I send your
majesty inclosed a copy of our last examination
of Peacham, taken the 10th of this present,
whereby your majesty may perceive, tnat this
miscreant wretch goeth back from all, and de-
nieth his hand and all. No doubt, being fully
of belief that he shall go presently down to his
trial, he meant now to repeat his part which he
purposed to play in the country, which was to
deny all. But your majesty, in your wisdom,
perceiveth, that this denial of his hand, being
not possible to "be counterfeited, and sworn to
by Adams, and so oft by himself formally con-
fessed and admitted, could not mend his case
before any jury in the world, but rather aagra-
vateth it by his notorious impudence and raise*
hood, and will make him more odious. Ife
never deceived me; for when others had hope*
of discovery, and thought time well spent that
way, I told your majesty, < pereuntious mill*
figura/ and that he did but now turn himself
into divers shapes, to save or delay his punish*
ment. And therefore submitting myself to
your majesty's high wisdom, I think myself

10t ~ messenger do confess; nay, mniselt contesseth,

skc'd, with what gentlemen, or others lhat he wroLte ihxem al the desire of another

i, when he was here last, he had con- n\an> " *> w,hom be sbou,Id bave ?hown t,ieru

id speech withal ? he saith he had when the7 had *?*n P*rfecte<1, and who craved

877] STATE TRIALS, 1 2 James I. 10 1 5.— for High Tnason. [ S75

bound, in conscience, to put your majesty in | of Edward the Third, that he compared and
remembrance, whether sir John Sydenham imagined the king's death; the indictment then
•hull be detained upon this man's impeaching, is according to the law, and justly founded.
in whom tlierc is no truth. Notwithstanding But how is it verified? First, then, I gather thi*
that further inquiry be made of this other conclusion, that since the indict roeut is made
person, and thut information and light be according to the prescription of law, the pro-
taken from Mr. Paulet and his servants, I liold cess is formal, the law is fulfilled, and the judge
it, as things are, necessary. God preserve your and jury are only to hearken to the verification
majesty. Your majesty's most humble and de- of the hypothesis, and whether the minor be
voted, &c. Fa. Bacon. March 12, 1614. [U.S.] well proved or not.

The Examination of Edmund Peacham at , T.haf his 7ritin? of this libel is an overt act,

the Tower, March 10, 1614. the judges themselves do confess ; that it was

Being asked, when he was last at London, lnade *} ioF puWwntion, the form of it bewrays

and where he lodged when he was there ; he the sclf| tbat be keI* uot ***** PiXP.m m a s^

saith he was last at London after the end of f ret Knd s;l|? facon, (manner) but in an open

the last parliament, but where he lodged, he hou,e and ',d'«s cask, both himself and the

knoweth not. messenger do confess; na^r, himself confesseth.

Being asked,
in London, wh

ferenee and spec*. „ .„._ - i ■ . • i • . . •

speech only with sir Maurice Berkeley, and that ?n a<*ount for them, which though it be denied

about the'petitions only, which had been be- 7 , 0tbtT P*rty'. W0I*eth 9,uftlcieat,y *&m*

fore sent up to him by the people of the coun- !hc ideP®nie,r himself. IS ay, he confesses, that

trv, touclung the apparitors and the grievances m tbe **{l}\e ,mfam? to P,reach *'> and tl}ou^>
©fcred the people by the court of the ojncials. for dmimishiiig <* his faulx, he alledges, that he
Being asked, touching ope Peacham, of his ««***&«* to have taken all the bitterness out
name, what knowledge he had of him, and ?^t, that excuse is altogether absurd, for there
whether he was not the person that did put ,s no olbef »Ul!r,n> or through it all but bttter-
intohis mind divers of those traiterous pas- "«% ^hidi bemg taken out, itmustbeaouint-
saees which are both in his loose and con- e>se«iceof an alchimy spirit without a body, or
tested papers ? he saith this Pcacluun, of his pop^n accidents without a substance; and then
name, was a divine, a scholar, and a traveller ; t0 what end 1woll,d ie lmve P«W»ued_such a
and that he came to him some years past, the PhTt' or1sliadowI "^l01" ^stance, cm bono ;
certainty of the time he cannot remember, and and t0 what end d,d he *\™"» <««*) «t tirst
lay at this examinate's house a quarter of a ^th venom, only to scrape it out a-ain ; but it
year, and took so much upon him, as he had nad ^een Jiard making that sermon to have
scarce the command of his own house or study; lasted- well, that was once so spiced, quo temel
but that he would be writing, sometimes in the ?s< }mbu*a rfceni, &c. But yet this very excuse
church, sometimes in the steeple, sometimes in » bv. »"***" overthrown a-am, confessing,
this exumiuate'sbtudv; and now saith farther, th^he ^^ t0 rctam some of "ie most
that those papers, as well loose as contested, craft? ™«cious parts in it, as, &c. [So the
which he had formerly confessed to be of his manuscript.]
own h
Peach
them

as well before his majesty's learned council, as whlc\ lV™* he dld by «'■* ri'*>™ i ,J*d "<-•

l«furc my lord of Canterbury, and other the conXIed a1se"noJ! ufi°,n an>' °!,,LT &rouud» or

lords ancf others of his majesty's privv-iouncil, il"fted the bulk of ll w,th a,|y ot,-er matter, and

was wholly out of fear, and to avoid torture, onI3r pondered it here an J there, with some

and not otherwise. passages of reprehension o! the kmtr ; or had

Being required 'to descril>e what Dinner of h*,ieT*r so>"tl,r,y railfd a2ji,isl ll* kInS ''»d

mtn the said IWliam thut lay at his house upbraided him of any two or throi-.thoiii-h mon-

wsi; he saith that he was tall of stature, and strans J!ces» li n,1?,lt >'et ,Mne bec" >,J"nt* WW

can make no other description of him, but «c,wa,»w J «r >fl ll«d hp *Puod ,ortlj il!l thc

•aith, as he taketh it, he dwelleth sometime^ vrnom lhat ,s In rh,s ,,U1 °* lns» in a ril,,in5

«4!onslow as a minister; for he hath seen hi* 8P«*». e,lhtir ,n drunkennos or r.pmi theoo

feters of orders and licence under the hand of ?asion C)f any suddpn p^««» '" discontentment,

Hr. D. ChatUTton, sometime bishop of Lin- ll ll,!2ht "kvinsc have been excised insjnie

«0n. He den^eth to set his hand to this exa- 90Tl' bllt UPWI the on'* Part- t0 hcnP UP ftl1 Tiie

ttmation. Exaiuinat' per Fk. Bacox, Ger. ,njurics that tho hearts oi men, or malice ot the

IUlwysse, Ran. Ceewe, H. Yelverton. ' J?* >!•*«« m^'nt »2ainst tlic king, to di^uhle

Tk» ,^c..*A „c »u i\ .• i .i n i mm "ttvrlv, not to he a kin?, not to be a Chri«-

Ike true State i of the Question, whether Peach- ti 1|||t |;> bc a mn or a ^mm.xhUs creallire

ainsCasebe Treason or not. notiwiuv of hreath he.e, nor salvation here'

In the hand-writing of king James. : after ; and, upon the other parr, not to do this

The Indictment is grounded upon the statute j hastily or rashly, but after lung premeditation,

679]

STATE TRIALS, 1 J James I. 1615.— The Case qfJoJui Owen,

[980

first having made collections in scattered pa-
pers, and then reduced it to a method, in a for-
mal treatise, a text chosen for the purpose, a
prayer premitteri, applying all his wits to bring
out of that text what he could, in malum par-
tem, against the king.

This, I say, is a plain proof that he intended
to compass or imagine, by this means, the Ling's
destruction. For, will ye look upon the per-
son or quality of the man, it was the far like-
liest means he could use to bring his wicked in-
tention to pass ; his person an old, unable and
unwieldy man ; his quality a minister, a preach-
er; and that in so remote a part of the coun-
try, as he had no more means of access to the
king's person than he had ability of body, or re-
solution of spirit, to act such a desperate at-
tempt with his own hands upon him ; and there-
fore, as every creature is ablest, in their own
element, either to defend themselves, or annoy
their adversaries, as birds in the air, fishes in
the water, and so forth, what so ready and na-
tural mean* had he whereby to annoy the king
as by publishing such a seditious libel? and so,
under the specious pretext of conscience, to in-
flame the hearts of the people against him.
Now, here is no illation nor inference made
upon the statute, it stands in puris naturaiibiis,
but only a just inference and probation of the
guilty intention of this party. So the only
thing the judges can doubt of, is of the delin-
quent's intention ; and then the question will
he, whether if these reasons be stronger to en-
force the guiltiness of his intention, or his bare
denial to clear him, since nature teaches every
roan to defend his life as long as he may ; and
whether, in case there were a doubt herein, the
judges should not rather incline to that side
wherein all probability lies: but if judges will
needs trust better the bare negative of an infa-

mous delinquent, without expressing what other
end he could probably have, than all the pro-
babilities, or rather infallible consequences upoa
the other part, caring more for the safety of
such a monster, than the preservation of a
crown, iii all ages following, whereupon depend
the lives of many millions; happy then are all
desperate and seditious knaves, but the fortune
of this crown is more than miserable. Quod
Dots aver tat.

Upon the subject of consulting the Judges in
Crown Causes before band, lord Coke, 3 Inst.
29, SO, thus expresses himself on a case in the
Year Book, 1 H. 7, 26. " Hussey, chief jus-
tice, besought king Henrr the 7 th, that he
would not desire to know their opinions before*
hand for Uumfrey Stafford, for xhey thougbt
it should come before them in the kings bench
judicially, and then they would do that which
of right they ought: and the king accepted
of it. And therefore the judges ought not to
deliver their opinions before-hand upon a cat*
put, and proofs urged of one side in absence
of the party accused; especially in cases of
high nature, and which deserve so fatal and
extreme punishment. For how can they bt
indifferent, who have delivered their opinions
before- hand without hearing of the party, when
a small addition, or substruction may alter tiie
case : And how doth it stand with their oatb,
who arc sworn, that they should well and law-
fully serve our lord the king and his people in
the office of a justice? and they should do
equal law, and execution of right to all his sub-
jects, &c." — This passage is cited in Mr. In-
dent's Chapter " On the Station and Character
of the Judges in the 16th and 17th centuries,''
the whole of which is well worth perusal.

100. The Case of John Owen, otherwise Collins, for Treason :
H. R. Easier, 13 James I. a. d. 1615.* [1 Rolle's Rep. 185.]

JOHN Owen otherwise Collins, of Godstowe

in the county of Oxford, was indicted, for that 1 ' the execution of the law." Upon this In-

he intending the death of the king, falsely and
maliciously said these words of the king, " The
* king, being excommunicate by the pope, may
he lawfully deposed, and killed by any what-
soever, which killing is not murder : and be-
ing demanded by II . White, how he durst
imcr such a bloody and fearful conclusion,
answered, the matter is not so heinous as you
suppose ; for the king, beiug the less, is con-
cluded by the pope, being the greater: and
it is all one as a malefactor, being convicted
by a temporal judge, is delivered to execu-
tion : so the king, being convicted by the
pope, may be lawfully slaughtered by any
whatsoever : for this is the execution of the

♦ Vide 1 Hale's H. P. C. 116.

' supreme sentence of the pope, as the other is

dictincnt of Treason, the defendant pleads Not
Guilty. Mount, [qu. Mountague?] king's Ser-
jeant, opens the Indictment, and Bacon the
king's Attorney then made a speed i and pro-
duces the Evidence. And Note, that the Solici-
tor being there does not speak in the matter,
and it seems that it is not his business* for

* The preaudience of pleaders in courts of
justice is stated by Blackstonc, Comm. b. 3,
c. 3. in a note, " Preaudience in the courts is
reckoned of so much consequence, that it may
not be amiss to subjoin a short table of the
precedence which usually obtains among the
practisers. 1 . The king's premier serieant, (so
constituted by special patent.) 2. The king's
antient Serjeant, or the eldest amoug (he king's

881]

STATE TRIALS, 13 James I. 1615.—; for High Treason.

[863

the crrer in the beginning charges the jury to
hear the evidence that should he given by the
king's Serjeants and the attorney. The Attor-
ney in his speech said, that io compass the I
king's death u the highest treason that can he, j
and this appears by l25 Kd. 3, which is hut a
declaration of the common law, where this is
named first : and by the law of nations, if an
embassador * compass and intend death to
the person of the king in whose land he is, he
may be condemned and executed for treason ;
but if he commit any other treason than this,
it is otherwise : then he should be sent to his
own country. And in this case, though the
words are in the future tense, still it is treason

before the time or the act done. One

aid, that if Henry Rth would nit take hack
queen Margaret f as his wile, he should not

Serjeants. 3. The king's advocate general. 4
The king's attorney general. 5. The king's so-
licitor general, (j The king's scrjeanu. 7.
The kind's counsel, with the queen's attorney
and solicitor, 8. Serjeants at law. 9. The
recorder of London. 10. Advocates of the
civil law. 11. Barristers. In the court of ex-
chequer two of the most experienced barristers,
called the post-man and the tub-man, (from
the places in which they sit) have also a prece-
dence in motions." — Hut as to this matter, a
passage in BuUtrode seems to shew that for-
merly the king's Attorney had no pre-audience
for liunsclf, but only in respect of the king's bu-
siness:

Buhtrodt's Reports, part 3, page 32, Termino
Paschte, 13wo J a col i primi.

Brownlow, Plaintiff, against Cox and Michil,

Defendants.

At the end of the report of this Case in the
court of KingVBcnch is the following note :
" Nota, That sir Francis Bacon, attorney, be-
ing to move, a Serjeant at law having a short mo-
tion, offered to move before him ; at which he
was much moved, saying, 'lhat he marvelled
he would offer this to him. — Upon this Coke,
chief justice. No serj«-ant ought to lemov-j
before the kind's attorney, w ln-ii he moves for
the king : but for other motions any serjeunt
at law is to move before hiin. Aud, when I
was the king's attorney, 1 never offered to move
before a serjeanr, unless it was for the king " —
See also as to pre-audience, Burr. 57, aud '25SG.

• As to the liability to punishment of em-
bassadors coinmorant or resident in foreign na-
tions, see 1 Hale'* Hist. 1'. C. O't ft scq. : Fos-
ter's 1st Discourse, 187, 1«H» : Ward's Inquiry
into the Principles and History of the Law of
Nations in Europe, chap. 17. and Kasi's chap-
ter of persons capable of committing crime*,
referred to in his Picas of the Crown, chap. 2,
1.4.

t This witliout doubt should be Catha-
rine. The case 1 suppose was that of Khz.
Barton, the holy maid or nun of Kent. Bacon
Mates the words to he " die the death of a dog."
(3 Birch's Bacon'* Work*, 6 j.) He cites the case

VOL. II.

be king, but should die as , and this was

held treason. So the duke of Huckingham
said, that if the king should arrest him for trea-
son, he Mould bt;ib him * aud this was an
immediate treason. And one Stanley said
that if he knew that l^erkin Warbcck was the
son of Edward 4th, he woald take part with
him against £. 6\ t n"d this was an immedi-
ate treason, notwithstanding the word* are spo-
ken with the word * if.' And it seems that
these words J are treason by the common
law. — >.oir, that upon the evidence it appiur-
ed, that the defendant held that it was not law-
ful to murder tlie king, because it was not
lawful to murder any man, but he .lit Id that it
was lawful to kill the king being excommuni-
cate by the p>pf, for this he hi Id lawful, and
so thought to e-c.ipe the former question, Whe-
ther it were lawful to murder the king. — After
the Indictment had been fully proved, the de-
fendant was foi-nd uuilty by the jury, and Coke
said that he and nllhisbn threu were agreed that
this is treason, and he said that he agreed in all
that had been said bv the Attorney, and said
inorei.\cr that by these words the defendant
gives nut only power to the pope to dispone of the
king's re.dm, but he made the king to hold that
and his crown only at the will of the pope. And
tlie defendant said that it was lawful to kill the
king being excommunicate, ami the king had
been long excommunicate by the pope, and
from thence he concludes that it was lawful to
kill the king at this time. And he cites some
hooks where it is said that the pope every Man u-
day Thursday excommunicates all Calvinisms,
heretics, schismatics, and all those who have
withdrawn their obedience from the pope, aud

iu his charge against Talbot supra, 778. Carte,
vol. 3, p. 123, says, " the death of a villain." .See
more of her in lord Herbert ('2 Kenn. Compl.
Hist. 1G9, 171, 170.) 1 Cobb. Pail. U\n. 021.
She and her accomplices were attainted by a
special act of parliament, l2b H. 8, c. 12 ; aud
lord Coke, 1\ C. 14, says they could not have
been attainted of tienson within '25 E. 3.

* See his case, vol. 1, p. l2i>7 of tins col-
lection. The words are stated more fully in
p. 29:t of that vol. The case is also in the
Year- Book 13 It. H, 11, h. 1*2, a. from whence
it is cited* in 1 Hale's Hist. 1\ C. 117. It iu
scarcely necessary to mc-n'ion here, that the
words about stabbing by no menus constituted
the whole of the offence charged upon the
duke. For this and the motives of the pr< 'se-
dition of the duke, see hi* Ca»-e in tlie preced-
ing volume. See alio that admirHble historian
Miukrspeur, iu his play ol Henry Ulh.

t Thii should doubtless he Henry 7th.
The case ap;<".reutly was that of sir William
Stanley, Lord Chaiubt rl.iiu to Henry 7. See
I llnle\ li. l». C. Hit. The word* are stated
somewhat diMeienllv iu Intense, which is <>iwii
at p. '277 of vol. 1. tif this collet tion.

t Concerning the treason uf words, spr
the case of Williams infra, a. d. 1(>19; mil
the cam's und other uuthoriiivs there nieu turned

3 L

SSJJ STATE TRIALS, 13 James I. lblj.—Proctedhtgi again* John Oplrie, [9M

land, but the king disdains to amwer this. But
ihe nobles and commons wrote a letter to the
pope, iu which they write that I hey had lead
his letter, in which were inauditatt o^urvada,
but we say that the king ought not to be called
before you fur his crown or antient possession*,
but thi» is against the laws of England; and if
Uie king he willing, stili we will not suffer it,
eveu to death. And we will not sutler any am-
bassador to be sent to you. Register. 61, b ad
jura regia recurritur when any one impugns
the common law : And it is now necessary to
extirpate such locusts as the defendant is, for
thtiic are twenty colleges which are popish for
Englishmen beyond sea in one country and
another. The judgment upon a traitor is, that
he shall be drawn to execution, forasmuch as bt

the Ling conies within these ; ergo, lie is excom-
municate. And Faux, who was condemned for
the Gunpowder Treason, said that it was law-
ful to k. II the king hein*; excommunicate. And
being asked, when the king was excommuni-
cato t, answered, That he had been excounmu-
niiM'.ed on th* last Maunday Thursday as afore-
said. 1 he la* by which the defendant is to be
condemned is the old common law of England.
Aiw I iuia U in '2o £. l\f which is hut a declara-
tion of the coniainn law. And this law is de-
rived o.igi°:.ii)j>' from the crown, and not from
any oiher toreLn power, of which I will repeat
some example; 16 R. 2, cap. 5, says, That the
crown of England had not been subject to ai.y
no/ ;s it s>ul.;cct to the pope or to any other.
40 E. 3, Rt. i'aii lament. Numb. 7. Kino John

being tij.saken of God and man, to have relief is not worthy to walk upon the earth: 2. His

privy members cut off: 3. His boweb burned,

fioui the p »nc did homage to the pope, and ac-
Liitmlt-ri^ed to hold his crown by (payment of)
m.'i * tu--oftiuj»l i;yk sex year. And afterwards
K. 1. was cited to Uome to perform his homage
auil to pay the thousand mark.*, which never
wcie pai [. And two questions were proposed
in parliament : 1. Whether king John could
b:ih;cr.'t (he crown to the pope ? '2. Whether he
oM.i.t to l.e cited to appear at Home before
ti.fr eye * A nd the* while parliament um>wered
tli. t Line Jehu did not subject, and could not
sulfj^jct hit crown to the pope: and if the pope
caps hiui, they would defend him with their
blond. '2V K. 1. Exchequer 12 Feb. Rot. 1200.
The pope writes to the king to submit to him
the contiaversy Concerning the crown of Scot-

be cause in them he hatched the treason : 4.
Beheaded : 5. Dismembered. And in tbisjude-
meat are included five puni-bments : 1. All he
goods are forfeited : 2. Life and limb : S. His
honours : 4 His members cut off, which shews
that his issue is disinherited with corruption of
blood : 5. The dower of his wife is forfeited :
1. Because he is a traitor to God. 3. To the
king who is God's vicegerent upon earth. 3.
To the king and realm. 4. To the law; and
5, to his o.vn allegiance. And Judgment was
given against the defendant to be drawn aod
quartered, &c. by Coke, with the assent of the
whole court.

10i. Proceedings against John* Ogilvie, for High Treason, on
Tuesday the 2Sth Day of February, at Glascow, in Scotland:
13 James I. a. d. 1615.

JOHN Ogilvie, alias Watson, came into Scot- i bi>hop of Argyle.thc lords FlemiiiL. Boyde,aiu
land, in 1613; and making hi* residence for the Kilsyth, the provo»t of the city of (_ila*cow, &i
mos« part of that winter in the north parts of i Waiter Steward, and sir George Elphingston,
•Sr"tSand ; took hi? journey to England u little ! knights, he <<

and
sir

before Easter. Where, giving out to some of
Jbis countrymen, that he had a supplication ior
tome wrongs to present to his majesty* he at-
tended the court some two months ; and fulling
iu acquaintance with a gentleman of the West-
country, after his pretended business was done,
or the occasion disappointed, he returned into
Scotland with the said gentleman in the begin-
ning of June thereafter. Upon litis familiarity,
.and other intelligence tit en him, In1 came to
Glascow in August following; and finding a
under receipt by certain persons in that city,
v/bo have since been justly condemned) he
aaade soma haunt and resort thither at sundry
****€% £U at last he wns detected, and by the
of the. archbishop of Glascow, who at
aajkept hi* residence within the city, np-

mfisscd hi* true name to be John
Ogilvie, that l.c was* burn in the north of Scot-
land, and had been forth of the country twenty-
one years; that he lived at Unit/, in a college
of Uie Jesuits, ' and was received in their order:

* that he returned into Scotland by the com-
' mnnd of his superior, and was to >tay there
' until he was recalled, if no utlier impediment
' should offer.' Heine required to ^i\ e his oath,
that he should declare nothing but truth in
such things as he should be demanded ; he an-
swered, ' That he would take his oath, but with

* some exceptions, namely, if he were demanded

* any thing that touched his estate and life, or

* that might endanger these or any of them, he
' would not answer ; likewise if the same tended

4 to the prejudice of other*..' And when it was

replied, that his exceptions being admitted, his

MMiwd committed to prison on the 4th I oath was as good as no oath, seeing any ques-

ofeer. \ units that could be proposed would concern

jlai Examination, which was the nexfc_\ some of these ; he was induced nt la>t to give s

tMbcc the archbiahop of Glascow, tbmzAunwte oath, which he did upon his knees; and

«5]

STATE TRIALS, 13 James I. 1015.—; for High Treason.

rising up from the ground, said, • I will neither
' lye nor equivocate, but what I *:iy shall be

* truth; and what I am asked, if I find itimper-
' tinent for me to answer, I will say nothing,

* or declare plainly I will not tell/

Then being enquired of his coining into Scot-
land, the rime and business he came to do, an-
swered, his business wits to save souls. Touch-
ing die time when he came into Scotland, an-
swered in the June before: where he was up-
Krehended to equivocate, notwithstanding of
is protestation ; for he meaned of his last com-
ing, and wu* asked concerning the first. But
the time at that examination was not under-
stood. Being enquired of the places where he
had been received, denied to tell; and if he
had said mass in any place, he answered, ' he
' would not say any thing that tniiiht work pre-
judice to himself or others :* and because he
hud professed, that he would not lye, the reply
he commonly made to such question was, * 1

* will not tell vou.'

The lords finding him thus obstinate, returned
him to a chamber in the castle, which was pre-
pared for him.

The 12th of December, ho was presented at
Edinburgh, before the lords commissioners, ap-
pointed by his majesty's missive for his exami-
nation and trial: namely) The lord of Binning,
secretary, the lord of Kilsyth, sir Gideon
Murray, the thesaurcr deputy, and sir William
Oliphant, his majesty's uttornty-general : to
whom he answered in all that was proponed, as
of before at Glasgow. There the letters inter-
cepted with him were presented, which he ac-
knowledged to be his : vet being demanded
touching certain particulars contained in them,
he denied to give their lordships any satisfaction.
So as their lordships perceiving nothing but a
pertinacious refusing in him to answer to points
most icasonable, and withal apprehending his
stay at court in the last summer, to have been
for some worse service than he could speed in,
determined, according to the power given them,
to extort by torments another confession ;
which being intimated to him, and he replying
that he was ready to suffer what they pleased,
it was thought fit to prove him with the easiest
form of trial that could be used.

It pleused his majesty in this time, while he
was remaining at Glascow, to send a com-
mission to the archbishop of Glascow, the
lord bishop of Argyle, the lord Fleming,
sir George Klphingston, and James Hamilton
provost of the city of Glascow, for trying the
said Ogilvic.

LI is opinion touching his highness's royal
power, and the pope's claimed jurisdiction,
maintained by Bellarmine, Sunrez and others
of that sort: The questions were these. — 1.
u Whether the poj»e >>e judge, and have power
in tpiritualibus over his majesty, and whether
thai power will reach over his majesty, even in
temporalibui, if it be ' in ordine ad spirit ualia,'
as Bellarmine athrmeth? — *i. Whether the
pope huvepower to excommunicate king*,(espo-
rjailv such as are not of hi> church as his ma-

jesty ? — 3. Whether die pope have power tu
depose kin^s, bv him excommunicated : and in,
particular, whether he have power to depose
the king hi* majesty ? — 4. W he' her' it be no
murder to slay his majestv, being so excommu-
nicated and deposed by trie pope ?- .r». Whe-
ther the po^e have power t> uiooil Mil.ji cr<j from
the oath oi' the ir horn and natural ulit fiance u>
his majesty ?"

Upon the 18th of Jan. the foresaid mte-tious
heiiiLr read distinctly unto him, and lie i-'|i.iited
to declare his opinion thereauent%an»w«.eJ us
follow el h :

*• To the fust, that he thought the pope of
Rome judge to his innji*fy, and to have power
over hi:n in sptritualtbus, if the king be a.
christian : and where it is naked, if that power
will reach over his majesty in tcmporalihus, he
says, he is not. obliged to dcclar" his opinion
therein, except to him that is judge in contro-
versies of religion, which he acknowledges to be
the pope, or some one having authority from
hiin. — To the second he answered, That the
pope hath power to excommunicate his ma-
jesty : and where it is said, that the king is nor
of the pope's church ; he saith, that all who are
baptized arc under the pope's power. — To the
third, whexe it is asked, if the pope have power
to depose his majesty, being excommunicated ;
answered, that he will not declare his mind, ex-
cept to him that is judge in contro\oies(if re-
lation.— To the fourth, whether it le lawful to
slay his majesty, being excommunicated and
deposed by the pope: answered ut supra. — To
the fifth, whether the pope hath power to assoil
subjects from their born and natural allegiance
to his majestv ? answered, ut supra."

In all these articles lie was particularly
reasoned with, by the archbishop of Gla«cow,
Mr. Robert Boyvie principal of tiic college, (a
man of rare erudition) and Mr. Kobert Scot,
one of the ministers of the city ; where it was
also signified unto him, that it concerned him
in no less than his life, what answer he should
make; if he should stand obstinate in these he
hud given, he might know what favour was to
be expected for his other crimes. Not the less
ratifying all that formerly was said, lie added
this further, " that he condemned the oaths of
supremacy and allegiance proponed to be swurn
in England," and would needs have the writer
to insert those words, to all which he put his
| hand, subscribing thus, " JouannlsOgilvevs,
I Societatis Jew."

Theie Answers being sent to his majesty,
undufflhe testification of the foresaid commis-
sioners, his highness gave orders to the lords of
the privy-council for his trial, which was ap-
pointed to be atvGlascow, the la^t oi' February.
Immediately after, the archbishop of Glascow
directed the provost and bailiffs of the city unto
| him, to signify, that Tuesday following was ap-
I pointed for arraignment, and that " he would
; not be accused for. mass-saying, or any thing
else that concerned his profession, but for the
Answers that he luai made to the demands pr..-
po?ed to him by his majesty*'* comintesionvr*.-"

S67 J STATE TRI A US, 1 3 J am es I. 1 0 1 5 — Proceedings against John Ogilvie, [tt6

Thty declared al«o, that if he should upon
better resolution recal those Answ er>, and apply
himself to give his majesty satisfaction in othtr
points, which of duty lie was obliged unto, the '
said archbishop would use his credit with his
highness, and the lords or* the privy- council lor

his safety. His answer was, " that he thanked
his lordship, for the good will and kinriue*s
offered, but he was so little minded to recal
any thing he had said, as when lie came to the
place he would make a comnu utary upon his

answ ei s.

The Arraignment of John Ogilvie, Jesuit, on Tuesday the 28th of February, in the
Town-house of Glascow, before James Hamilton, IVovost of Glascow, James Bell,
Colin Campbell, and James Brad wood, J Jail ills of the City, Justices appointed
by spociul Commission for that iiusincss, by the Lords of the Privy -Council.

The foresaid Judges being assisted by the
honourable lord* there picm-iit :

John, archhi-diop of Glasco.v ; James mar-
quis of Hamilton ; Koberr, cm I of lothiuu;
Wiiiinm, lord ,Sanquh»r; John lord Fleming;
Uohcrt, lord IJovde ; And sir Walter Stewart,
bails -deputy of the regality of Glascow.

(in Tuesday the last oi' February, a little after
«h veil of the clock in tin; fun-noon, the court
being set, Mr. William U;i v, of IJaro, commis-
sary of Glascow, deputed by tptrid commis-
sion froro sir William Oliphant of Newton, his
majesty's Attorney Central, produced the In-
dictment following; together with the citation
used against tho^e who were to pass upon the
Jury, and the roll of their particular names,
subjoined with his hand, according to the
custom observed in those cast s.

The Ikdicimfkt of John Otitic, .Fe-r.it, after
the form of the law of Scotland.

11 John Ogilvie, by your subscription, a
priest of the late execrable order of Jesuits, von
are indicted and accused, That for as much as
God, the author of all righteous government,
having established kings and magistrates his
lieutenants upon earth, for reprc>*.ng of vio-
lence, oppres>ion, and \ice, and the promoting
of piety and justice, hath Jii his paiticnhir grace
and favour, blessed this country with a more
ancient, just and permanent descent of lawful
kings than nny other nation of the world, and
extended our felicity beyond the happiness of
our ancestors, by the justice, wUdum and
clemency of Ins majesty's prosperous reijn;
and hath not only rewarded hi-, maje-ty's zeal
and rightcouHiess with wealth and peace, hut
also honoured and strengthened him with the
acces>ion of the most mighty and llou.-ishiui;
kingdoms of England, France, and Ireland.
Which visible favours proceeding directly from
God's most bountiful hand, tnuved the whole
estates of this kingdom assembled in the parlia-
ment holdcn at Perth, the <Jih of July, 1600,
to acknowledge his majesty's sovereign autho-
rity, princely power, royal prerogative, and pri-
vilege of his crown over all c»tuie% persons and
causes whatsoever, within the kingdom : and
all in one voice f.iithfully to promise, maintain,
-defend, obey and advance the life, safety,
honour, dignity, sovereign authority and pre-
rogative royal of his sacred majesty, and privi-
leges of his crown : and to witb-iand all persous
powers, and estates, who Mio'dd presume, prejs,

or intend any ways to impugn, hurt, or impair
the ssiine; As also his majesty, with advice of
the whole estates of ih's kingdom, in (he parlia-
ment holdcn at Kdiubur&h, the 2'2d of May,
anno lab**, ratified, approved, and perpetually
confirmed, his majesty's royal power and autho-
rity over all estates, as well spiritual as temporal,
within tins realm ; and statu ted and ordained,
that his highness, his heiisand successors, by
themselves and their counsellors, w<re, and in
all times coming should he, judges, competent
to all pei sons his highnev>'s subjects, of what-
soever estate, d« grce, function, or condition
that ever they be of, spiritual or temporal,
in all matters wherein they or any of tliew
should lie apprehended, summoned, or charged
to answer., unto such things as should be in-
quired of them by our said so\eregn K>rd and
his ei)uncil ; and that none of them who should
he apprehended, called or summoned, to the
eifect aforesaid, should [resume or take in
hand to di cliuc the judgment of his highness,
his heirs and successors, or their comicil in the
premises, under the pain of treason. And
likewise, by the '18th act of Ling James 1, his
parliament, and divers other parliaments there-
after, it i-> ordained that all the king's lieges live
and be governed under the king** Ian* and
statutes, and under no laws of other countrie*
ami realm*, under the pain oi treason, and
other, particularly expiessed in the nets before*
uientioned, and o'her laws of this kingdom.
Notwithstanding whereof, it is of truth and
vcrilv, that you having renounced your natural
nllci'iauce and duty to your native and righteous
king, and csist oil' all reverence, respect, and
obedience to his sovereign autliority and laws,
and dedicated your mmd and actions to the
unlawful obedience of foreign powers, adver-
saries to his majesty ; and resolving, so far as
in you lieth, to seduce his majesty's subjects
from the faith and allegiance due to hi* ma-
jesty, repaired to this country in the month of
June last pust, or thereabout. And by your
conferences, inticements, auricular confessions,
mass-sayings and other subtle and crafty means,
endeavoured yourself not only to corrupt many
of his majesty's lieges in relit ion ; but also to
pervert them from their dutiful obedience due
to his majesty, till you were discovered and
apprehended by the archbishop of Glascow,
wJ<>, with divers his majesty's counsellors and
oiheis his good subjects, used all christian and
charitable means to bring you to die sense of

&9]

STATE TRIALS, 13 James I. \6l5.-for High Treason.

[690

your heinous otTences, ami desire of amendment
thereat': but they luting ull ihcir well nut uded
labours, were (in respect of your perverse ob-
stinacy) commanded by hi* mnjesly to enter to
your examination, and the trial of your heii.oiis
crimes and tr.uisgrtssinus. And ts) ecially the
said archbishop of Ghiscow, and many others
of good rank and qiudily adjoined to him, by
his majesty, for \our examination, having upon
the lblh of January last, culled you hi tore
them, 10 examine you upon some particular
interrogatories, prcscri)>ed by hi* mnje>tv to be
demanded of you ; as directly concerning his
majesty's must sacred person, life, crown, and
estate : And chieliy you being demanded by
them, whether (he pope h.ith power to depose
kings, being excommunicated? and in pailicu-
lar, if he have power to depose the jiing's ma-
jesty, our sovereign, being excommnuicated by
him? You answered treasonably, that you would
not declare your uiiud, except to hnn thai is
judge in the controversies of religion, whom
(by your answer made to the latter part of the
tirst in terr oratory, demanded of vou (hat dav)
you declared to be the pope, or any ha\in

But that it may be known that \onx treason
proceeded of forethought of felony, and obsti-
nate resolution, you freely and unrevjuiredly did
udd to your tore-said answers thin damnable
conclusion, that you condemned the oaths of
supremacy and allegiance given to his majesty
by his subjects in his dominions: whereby ic is
apparent, that your errand to this country, hath
been to infect his liigluurss's subjects with the
poison of your pestilent and treasonable opinion
foresaid, to the Mib\er>ion of religion, overthrow
of his majesty's authority and crown, and de-
struction of his m< .*t sacred per.iou. And al-
beit the course of ull his majesty's iiieaud reign
hath iiiaiiiic-sied how unwilling be hath ever
been to use the *everny of hi<i laws against
those who have said and heard mass, and other-
wise contravened the acts of parliament made
agniu.it idolatrous pupistry, and practise rs there-
of within this kingdom, desiring rather to re-
claim thim by instruction, fiom their errors, to
the knowledge and profession of the truth: and
when he found them obd urate, and of desperate
resolution, relieving the cointry of the dange-
rous progress of their courses, by their imprison-'
authority from hi in: albeit by the acts of pai- \ incut and banishment, whereof you had such
liaiueut and laws of this realm, made in the | experience in the persons of your own accom-
yeais of God lOoO and 1567, it is Mat u ted and j plices, condemned for their manifest crimes, as
ordained, that the hi>hop of Home (called the might very probably have made you to haveex-
popc) shall have no jurisdiction nor authority ! pec ted the like, if any memory of your native
witlun this realm, in any time coining: and I duty and born allegiance had possessed your
thereby not only declining treasonably his ma- mind: but you being altouethiT destitute there-
jesty's jurisdiction, allowing of the pope's juiis- ■ ot, by the three last articles of your depositions
diction, which is d schurgid by acts of purlin? ! above written, you hate so plainly discovered,
ment, as said is; but hath committed most ! that you priAt-scdly approve the means, and
damnable and high- 1 reason, in not acknow- j wish the elfect of the overt hi ow of his majesty's
Jedging that the pope hath no power to dej>ose I estate, the destruction of his highness'* person,
his inaje>tv, who holding his ciowu and autlio- . and seduction of his native subjects from their
rity ubsoluuly, sovereignly, and inmicdinteryi subjection and dutiful ol edirncc : that the; cliv,
of God, may m>t be eh po?cd by any earthly ! mul by every one of \oi:r foresaid an>wei*, you
person, ji"Wfr, or uuth>i:ty. And thereafter | h:i\e committed most heinous, dcu>labit , ami

you beiiig demanded if ii be lawful to slay hi*
majesty, hcini; excoimuuiiirsiU'd atul deposed
by the pope ? Vou answered '* uL iupra:" which
wa*, that you would not declaie your mind till
you were before the pope, or others having
authority from h'ln ; thereby not only declining
treasonably Ins majesty's jurisdiction and autho-
rity royal, but by your not answering clearly,
that it is altogether unlawful, damnable, and
diabolical, once to think that it is lawful to
slay hit 1110*1 sicn d majesty, you have com-

uiipanionablc trensnu. and deservedly ii.curred
I he most rigorous p.iins thereof to be executed
upon your body, luuds, and goods, with all cx-
t remit v, to the terror of others.*'

The Indictment he-ins rend, Mr. William Hav,
substitute for his majesty's Attorney, opened
the v.nnc, to the ctlect following :

Albeit the Indictment of itself be clear
enough, and re; -resent rth suthcientlv to my
lords justices, their honourable lordships here
mired most hcinou*, pernicious, and uupardon- ! assisting, and to youi>elf John Ogilvu*, who
able treason. And lastly, being demanded, if stands there accused, ihc weight and gravity of
the pope had power to as-nil his majesty's horn ' the crime by you committed, yet I shall resume
subjects from their natural allegiance? Vou an- it to you in few word**, that your ausweis iu;»y
swered, " ut supra :" and thereby both declined be the moie distinct, and without mistaking,
treasonably his hi^hness's jurisdiction and an- Vou ric not accused of saying mags, nor
thorny-royal, in refusing to answer before hi- of seeluciuu his majesty's subjects to a con-
majestv's coumeltors and commissioners mini- ' traiv u hgioii, nor of any point touching you
said, in one matter inertly concerning his royal in conscience properly; but for declining
tKmer o%er his people, and their subjection to ' his majesty's authority, a£ninst the laws and
bis majesty; and also committed wilful and ■ statutes of the land, and for mtialaining
detestable treason, in not acknowledging pro- Lic-asuimhle opinions : such as we of this
fessedly nmi presently, that none 00 curth had realm have not heaid by any uvowed. The
power to assoil his majesty's suljects from statutes meaii-iued in your Indictment, make
fheir natural subjection und allegiance 1/ l.im. ' it treusuu ii'jt lo ui»*wt r the king's u.ojesty, or

$9i] STATE TRIALS, IT James I. \ti\5.— Proceeding* against John Otfvit, [GM

"his council in any matter which shall be de-
manded ; you beiug examined by my lord arch-
bishop of Glascow, und other honourable per-
sous adjoined to liiui by lii* majesty's special
commission, refused to answer to divers inter-
rogatories proponed to you by their lordships,
mod at the same time professedly avouched the
pope of Home his jurisdiction, which by the
taws of the country is many years siuce plainly
discharged : therefore have you incurred the
penalty continued in the statutes, and the same
ought mid should be executed upon you.

treason in all places, and in :ill kingdoms ; but
that, saith be, is known not to he so. As for
your acts of parliament, they arc made by a
number of partial men, the best of the land
not agreeing with them, and of matters not
subject to their forum, or judicatory, for which
I will not give a rotten fig.

Where I am thought an enemy to the king's
majesty's uuthority, I know no other authority
he hutn, but that which he rec erred from his

Bredecessors, who acknowledged the pope of
lorn eV jurisdiction. If the king, saidi he, will

It is further laid unto your charge, tha£ you be to ine as his predecessors were to mine, f
being demanded in the particulars, namely, i will obey and acknowledge him for my king;
Whether the pope hath power to depose the j but if he do otherwise, and play the runnngnte

king's majesty, our sovereign? 2ndly, Whether
it be law ml to slay his majesty, being deposed
by the pope? 3rd1y, Whether the pope hath
power to assoil his majesty's subjects, from
their natural allegiance, or not? You denied to
give any answer, touching tiny of these points,
except ye' were enquired thereof by the pope,
or others having authority from him : -und so
pot acknowledging, that his majesty's crown
und authority is held immediately and sovc-.
reignly of God, the author o( all government ;
that it is detestable once to think, llwt his sa-
cred majesty may be lawfully killed, and that
no man has power to ussoil his majesty's sub-
jects from their natural allegiance to his high-
ness : you have in these points, and erery one
of them, committed most heinous treason ; for
the which what you say in your own defence 1
sec not. And vet further that it may be seen,
how desperate your resolution is in all these
points, although you were not required concern-
ing the oath* of supremacy and allegiance given
to his maje>ty, by his subjects, ye freely, and
out of your own motives, condemned these
oaths as impious and unlawful; thereby hath
it appeared what a wicked and treasonable
mind you foster against has mujesty, our sove-
reign. If you should deny it, here arc your
answers sultscribed with your own hand, which
ve cannot but acknowledge; them 1 desire to
be read, us likewise the several statutes of par-
liament, which you are a Hedged to have trans-
gressed, and thereafter, since his majesty is
pleased, that the ordinary course of trial be
kept unto you ; you shall have liberty to say
for yourself, either .igiiinst the relevancy of the
Indictment, or verification produced, what you
think best.

Then were rend the statutes of parliament men-
tioned in the Indictment, und the said John
Ogilvie's Answers to the Demands propon-
ed unto him, which he acknowledged for his
own, and the subscription thereto subjoin-
ed ; after which, having license of the court
to say what he could for himself, he spake-
to this effect :

from 0:kj, as he and you all do, I will not ac-
knowledge him more than this old hat.

Here the archbishop of Glascow interrupted
his speech, desiring him to deliver his mind ia
a greater calm and with more reverend speeches
of his majesty (for he uttered those things in a
vehement paction, and as one transported with
fury). He remembered him, that he was ac-
cused upon his life, bclnre judges that were au-
thorized hv his majesty's commission ; to de-
cline the judgment, or rail against his inajestt*s
authority, wns bootless, and in a man of his

firofession, beiug an ecclesiastic, very scanda-
ous. Fie should rather take another course,
to amend what he had offended in, and recal
his former answer* ; if they had not proceeded
from a deliberate purpose, or if he were reso-
lute to maintain I hem, to do it with reason, and
in a moderate sort; that thU were his best,
either for justifying himsdf, and tht- opinions
he held,, or for moving the judges, and their
lordships that were assisting, to commiserate
his case. He advertised him withal to be more
temperate in his speeches concerning his ma-
jesty, otherwise he would not be licensed thus
to offend.

To this Ogilrie made some little answer,
That ho would take the advertisement, and
speak more coolly ; howbeit, he would never
acknowledge the judgment, nor think they had
power to>it on his life ; but snid, And for the
reverence 1 do you, to stand bare-headed before
you, 1 let you know it is, * Ad redemptionem
' vexutioui», et non ad agnitionem judicii.'

The Advocate here insisred, that seeing all
his answers tended to decline the judgment,
and that he brought no reason why the indict-
ment should not go to a triul, thut tlie jury
should )>c rhosen and sworn at the bur, accord-
ing to the custom.

The Names of the Jury : Mr George El-
phin^'ton, of Blythswood ; sir 'I homas Boyd,
of BonpbliMw ; -ir James F.dme>ton, of I)un-
traith, elder; Janus Murhcad, of I^ichop ;
James Holier! n, of Krnock ; Hush C.'ruwfura.

of J'-rdan-hl., John Curst bore, of that ilk;

| Hugh Ki'imtilv, p. ivos-t of Aire ; William Ma-

Fin st under protestation, that I do no way • karel «f Uill-bomr ; James Rlaire, bailie of

acknowledge this judgment, nor rccci\e yon,
th*t have that commission ther? produced, fir
luT judges, I deny any point laid ugninst me id
brt treason : for if it were treusm, it would be i John Cunningham, of K:i*ei.

i

Aire; J«n.<-> Dm;lupf of Pomnilne ; John
Steward, burgess of Auv ; John Dumbar, bur-
ners there: James Johnston, burgess there;

I 1 1 1 "I A.' Ik _

SD3]

STATE TRIALS, 13 James I. UilS.—Jbr High Treason.

[894

It was allowed the prisoner to challenge any
of the tore-named persons, and to oppose uiko
their admission : who said,

lie had but one exception for them . all :
they were cither enemies to his cause, or
friends : it' enemies, tbey could not be admitted
upon his trial ; and if they were his friends,
they should stand prisoners at the bar with
him.

The Jury were instantly sworn and admitted.

Then was the Indictment read again in the
hearing of the Jury, and the evidences shewed
them tor verification thereof, which of before
were produced. And the prisoner being of
new remembered to say what he would for
himself) for the better information of the Jury,
spake these things following :

I with these gcutlemen to consider well
what they do. I cannot be tried nor judged
by them ; and whatever I suffer here, it is by
way of injury, and not of judgment. Injuria
c*ty non judicium* I am accused of treason,
but have done nooe offence, neither will I beg
mercy.

Arckbuhop. This is stranec, you have done
none offence, and yet you ure come in his ma-
jesty * kingdom, and have laboured to pervert
his highncss's subjects; both of these are
against the lnw : In this have ye not offended?

Ogihie. I came by commandment, and if
I were even now forth of the kingdom, I should
return : neither do I repent anv thing, but that
I have not been so busy as 1 slioutd, in that
which ye call perverting. I hope to come td
Glascow again, and to do more good in it. If
all the hairs of mine head were priests, they
should all come into the kingdom.

ArchbUhcp. And do you not esteem it a
fault to go against the king's commandment,
especially in tins point of dKcluurging you bis
kingdom ? If a king have any power within his
kingdom, it seems he may rid himself and hit
country of those with whom he is offended ;
mod it savours of great rebellion to say other-
wise.

Ogihie. I am a subject as free as the king
is a king ; he ennnot discharge me if I be not
•a offender, which I nm nor.

And being atked for what offences he might
lie discharged by the king ? answered, in the
cases of theft and murder.

Archbishop. You come not to answer any
thing to the points of your indictment. Why
did you decline his majesty's authority, and re-
fused to shew your opinion anent the pop*, his
power in deposing kings, and loosing Mjhjects
from their oath of allegiance ? And when it was
asked you, if it were lawful to shiv the king,
being deposed, und excommunicated bv the
pope, which any loyal- hearted subject wilt ub-
nur to think of, why did you not simply con*
demn it as unlawful ? For in that you do not
condemn it, you shew yourself of the opinion
of the rest of your sect, who in their books
maintain, that it is both lawful and commenda-
ble to slay kings, if the pojie's commission go
fiatth once for it.

Ogihie. For the declining of the kind's au-
thority, I will do it still in matters of religion ;
for with such matters he hath nothing to do :
neither have I done any other thing, but that
which the ministers did at Dundee ; they would
not acknowledge his majesty's authority in apt-
ritual matters more flian I : and tlie nest mi-
nisters of the land are still of that mind, and if
tliey be wise, will continue so.

The Archbishop replied, That he was mis-
taken, both in the place and matter ; for it waa
not at Dundee, but Aberdeen, where eight mi-
nisters meeting in a general assembly, con-
tended not against the king's authority, but
that the assembly called to that place and time
could not be discharged by his majesty's com-
mtaaioner : neither should the fact or a few,
take it at the wont, be esteemed the deed of
the whole. These have been punished for
their offences, and some of them have confess-
ed their error, and been graciously pardoned by
his majesty. All good ministers profess other*
wise, and our religion teaches us to acknow-
ledge his majesty our only supreruejudgeiaall
causes. The king is keeper of both table*,
and his place bears him not only to the ruling
of his subjects in justice, and preserving equity
amongst them, bat even to main tain religion
and God's pure worship, of which he should
have principal care. Your lord the pope hath
not only denied this authority to kings, which
God give tli them, but usurpeth to biinsolf a
power of deposing and killing when he is dis-
pleased ; and it were the less to he regarded,
if this his usurpation had gone no further than
your pern : but you have entered, by this pre*
tended right, the throats of the gteatest kings,
as your practice upon the two last Henrys ot
Trance bears witness. You are not abie to
lay such imputation upon us, nor our profes-
sion, which teaches, that next unto God Al*
mighty, all men are bound to fear, serve, and
honour their kings. But what answer you
touching these demands? Hath the pope
power to depose the king ? or is it not murder
to kill him, being deposed by the pope ?

Ogilvie. I refused before to answer such
questions, because in nnswerine, I should ac-
knowledge you judges in controversies of reli-
gion, which I do not. I will not cast holy
things to dogs.

Archbishop. Is it a point of faith, that the
pope may depose his majesty ? or do you think
it a controversy in religion, whether his nm*
jesty (whom God save) may be lawfully killed,
or not ?

Ogilvie. It is a question amongst the doc-
tors of the church, and many hold the anirma-
tive not improbably. A council huth not yet
determined the point : and if it shall be con-
cluded by the church, that the pope hath such
power, I w ill give my life in defence of it ; and
if I had a thousand lives, I would bestow them
thiit way, if they will make an article of faith
of it.

Iking urged bv the court to declare hi* own
opinion, especially in that point, whether it

895] STATL TUIALS, 13 James I. lfi

were murder1 to kill hi* majesty, being deposed
by the pope ?

. Ogitvie, I would not say it were unlawful,
though 1 should save my lite by it. That if the
king offended against the catholic church, the
pope might punish him as wilt us a shepherd,
or the poorest Jellow in the country. That in
abrogating the pope's authority, the estate* of
parliament had gone beyond their limits, and
that the king in usurping the pope's right, had
lost his own. ' Num qui rap it jus alienum,
4 perdit jus ad suum.'

Being asked touching the oath of allegiance,
Why he did condemn it ? and the same being
read unto him ; lie suid, lr was a damnable
oath against God and his truth, und that it was
treason to swear it, because it brought the
king's person and state in danger. Since this
kingdom, said he, was Christian, the pope's su-
preme power was always acknowledged : this
being cast off (as we see in the act of your par-
liament) against tdl reason and conscience, und
subjects forced to swear to a matter so unlaw-
ful, what marvel that attempts aud dangerous
courses be taken against him. * Juttissima lex
* est, ut qua; agit aliquis, talia piuiutur.' But
would the king leuve otf his usurping upon the
pope, he might live without rear, as well as the
Ling of Spain, or any other Chribtian prince.
Neither bishop, nor minister, nor all the bishops
and ministers in his majesty's kingdoms had
done, nor could do the like.

Tlte Archbishop uf Ghiscnw did close all to the
jury, to this effect :

Gentlemen, aud others, who are named upon
this assize, though 1 minded to have said no-
thing, but sitteu here a witness of the proceed-
ing, 1 have been forced by his proud and impu-
dent speeches, somewhat to reply, und must,
with your patience, say a little more. It is this
same day, two- mid- twenty weeks past, that this

{Prisoner fell into mine h inds ; since that time
io hath had leisure to think enough what course
was fittest for himself to take, for satisfying hi*
majesty whom he hud oll'ended ; neither hath
he lacked counsel and advice, the best that we
could give him : besides he hath found on our
part nothing but courteous dealing, and better
entertainment, than, I must now .say it, he hath
deserved. Mine own hopes were, that he would
have followed another course than I sec he hut.li
taken, and not stand to the answers which he
made to those demands which were moved
unto him by his majesty's commissioners, and
you have seen : but it his answers ut the first
were treasonable, they are now so little better-
ed, as in all your hearing, he hath uttered
speeches most detestable, made a commentary
worse than the text was ami shewed himself
to carry the mind of an air.iut and desperate
traitor. You perciive he ob-cures not hit* af-
fection towards the kind's majesty, our sove-
reign, in till his speeches prefi rring the pope to
his majesty : and which is more intolerable,
arfirmeth the kind's majesty to ha\c lost the
right of his kingdom by usurping upon the pope.
lie will not say, it is unlawful to kill his muje*-

1 5. —Proceedings against John Ogilvic, [690

ry; he saith, it is treason for subjects to swear
the oath of allegiance ; and meaneth so much
in his last words,- as the king's majesty V life and
estate cannot be assured, except he renders
himself the pope's vassal.

Thus hath he left you little to do, except
that his majesty's pleasure is, the ordinary form
be kept with him, you should never need once
to remove : all his speeches have been so stuffed
with treason, that I am sure the patience of
the noblemen, and others here present, hath
been much provoked.

In ail that lie hath said, I can mark but two
things allcdged by him for the pope's authority
over kings; the words of our Sationr to St.
Peter, ' Paste oves ineas,' feetl my sheep : and
the subjection of kings, especially of our kiop,
since the kingdom became Christian, to the
pope. For the words of our Saviour, how little
they serve hit purpose, 1 have no need to tel)
you. To (ted the >hi-cp of Christ, is not, 1
hope, to depose kings from thvir estates, nor to
en flu me the hearts of subjects againat princes,
much le*s to kill aud dispatch them : we are
belter taught than to be deceived with such
glosses. Saint Peter made never that sense of
those words, and tea diet h us a fur other doc-
trine, in his first epistle, 5th chapter, and se-
cond and third verses.

I will not spend time with such purpose;
only this 1 must say, that whatsoever was St.
Peter's prerogative, the pope o( Rome liatb
nothing to do with it: for he am not be St.
Peters successor that hath forsaken his doctrine,
and gone against his practice directly, both in
that and other points of Christian faith. And
for the antiquity of his usurped power, 1 may
justly say, that Mr. Oeilvie is not well seen in
antiquity, or then speak eth against his know-
ledge, when he saith, that this power of the
pope was ever acknowledged by Christian kings:
the bishops of Rome for many years made no
such claim, neither did emperors or kin^t ever
dreum of such subjection: lout; it w:is tre the
pope «if Koine came to the height of command-
ing kinps, und not till he had oppressed the
church, under the pretext of St. Peter's* keys,
hearing down :.ll the bishops within Christen'
(loin ; which having done, then he made his in-
vasion upon princes, and that by degrees. The
histories of all n^vs make this plain, and the
resisting he found by kings in their kingdoms,
testified that they never acknowledged Irs su-
periority. Of our own, howbeit us we lie tar
troni his seat, j-o had we less business and fewer
occasions of contradiction; vet 1 can make it
seen in diteis particulars, when any question
tell out aneut the provision of bishops and arch*
bishops io their places, the hulls of Rome were
so little respected, as the king's predecessors*
have al wins preferred and borne out their
own choice; and the interdictions made upon
the realm, by these occasions, not without
some imputation of weakness to the see uposto-
lick, ha\ e been recalled. The superstitions otf"
Home were amongst us last embraced, and* with
the first, by the mercies of God, shaken o£

S97]

STATE TRIALS, IS Jambs I. 1015.— for High Treason.

[69S

Whatsoever you brag of your antiquity, it is ; ers of heretics I will not have.— And so the

false both in this and in nil the points of your Court arose.

profession else, which J could elf ar, if this lime I

or place were fitting. But to jou of this jury, ^ true Relation of such things as passed at the

1 nave this only more to say, you are to enquire j Execution of John Ogilvie, upon the last

upon the verity of the indictment, whetlier day of February, anno 1615.

such and such things r.s arc nlledgcil to be com-

mitted by him, have been so or not : you have
his subscription, which lie ackuowlcdgrth ; you
hear liitnsulf, and how he h.ith most treason-
ably disavowed his majesty's authority : if con-

After judgment was given, by the space of
some three hours, he remained in the place
where he was convicted, having leisure grunted
him to prepare himself for death. He conti-

cerne you only to pronounce as you shall find ■ "ued a while upon his kntcs at prayer, with a
verified by the speeches tint vou have heard, ; cold devotion ; and when the hour of execu-
and the testimonies produced. For the rest, ! tion approached, his hands being tied by the ex-
the justices know sufficiently what to do, and ! ecutioniT, his spirits were perceived much to fail
will serve God and his huijcsty, according to i 'him. In going towards the scaffold, the throng

the commission given them.

of people was great, and he seemed much amaz-

Master William Hay, Advocate for his ma- *d; and when he'uas up, Mr. Robert Scott, and
jesty, asked instruments upon the prisoner's ' Mr. William Struthers, ministers, very gravely

treasonable speeches, uttered in the hearing of
the jury, and his ratification of the former an-
swer* made to his majetty's commissioners :
likewise, for the further clearing of the indict-
ment, repeated the acts of parliament mentioned
in the said indictment, with the act of privy-
council, made anent his majesty's supremacy
and the oath of allegiance. And desired the
jury deeply to weigh and consider the perverse
and devilish disposition of the party accused;
to the effect they might without scruple proceed
is his conviction. And according to his place,
protested for wilful error, if they should acquit
aim of any point contained in the said indict-
ment.

The persons named upon the jury, removed
to the higher house, which was prepared for
tbem; and having elected sir George Klphing-
iton, chancellor, all in one voice found the pri-
soner Guilty of the whole treasonable crimes
contained in the indictment.

Which being reported by the said sir George
Elphingston, and confirmed by the whole jurv,
ten returned into the court, judgment was
given by direction of the justices, That the
•aid John Ogilvie,' for the treasons by him com-
mitted, should be hanged and quartered.

The Archbishop of Glascow demanded if
Ogilvie would lay any thing else?

Ogihrie answered, No, my lord. But I give
jour lordship thanks for your kindness, and will
desire your hand.

The Archbishop said, If you shall acknow-
ledge your fault done to his majesty, and crave
vod tnd his highness's pardon, I will nive you
•oth hand and heart; for I wish you to die a
good Christian.

Then Ogilvie asked, If he should be licensed
10 Weak unto the people ?

uie Archbishop answered, If you will de-
flare, that you suffer according to the luw,
J*dy for your offence, and crave his majesty's
Pwdon fir your treasonable speeches, you shall
* licensed to say what you please ; otherwise
J** ought not to"be permitted.

Then said be, God have mercy upon me ?
Ami cried aloud, If there be here any hidden
Cwhoiica, let them prav for me; but the pray-
roi. n.

and christianly exhorted him to an humble ac-
knowledgment of his offence, and if any tiling
troubled his mind, to disburihen his conscience.
In matters of religion, they said, they would
not then enter, but prayed him to resolve and
settle his mind, and seek mercy and grace from
God, through Jesus Christ, in whom only sal-
vation is to be found.

Ogilvie answered, That he was prepared and
resolved. Once he said, that he died for reli-
gion ; but uttered this so weakly, as scarce he was
heard by ihcm that stood by upon the scaffold.
Then addressing himself to execution, lie kneeled
at the ladder-fout, and prayed ; Mr. Hobert Scott
in that while declaring to the people that his
suffering was not for any mutter of religion, but
for heinous (reason against his imjesry, which
he prayed God to forgive him. Ogilvie hear-
ing this, said, he doth me wrong. One, called
John Abircrumie, a man of little wit, replied,
No matter, John, the more wrongs the better.
This man was seen to attend him carefully,
and was ever heard asking of Ogilvie some to-
ken before his death ; for which und other bu-
siness he made with him, he was put off the
scaffold.

Ogilvie ending his prayer, arose to go up the
ladder, but strength and courage, to the admi-
ration of those who had seen him before, did
quite forsake him : he trembled and shaked,
saying, ' he would fall/ and could hardly be
helped up on the top of the ladder. He kissed
the hangman, and said, ' Maria, mater gratia*,
' ora pro me ; omnes Angeli, orate pro me ;
' omnes Sancti Sanctaque, orate pro me :' but
with so low a voice, that they which stood at
! the ladder foot had some difficulty to hear

him.

The executioner willed him to commend his
soul to God, pronouncing these wordi unto
him, 'Say John, Lord, have mercy on me,
* Lord, receive my soul :' which he did with
such feebleness of Voice, that scarcely he could
be heard. Then w.is he turned off, (his left
foot for a space taking hold of the ladder, as a
man unwilling to die; and hung till he was
dead. His quartering, according to the judg-
ment given, wus, for some respects, not used ;

3 M

S99] STATE TIM AI A 13 James I. TO 15— Case qf Mr. Oliver St. John, [WO

and his body buried in a place that is kept for
malefactois.

Wc have understood, by some persons who
visited him at times during his imprisonment,
that amongst other his speeches with them, he
said this, That if he had escaped his apprehen-
sion at this time, and lived till Whitsunday

next, he should have done that which all tb»
bishops and ministers both in England and
Scotland, should never have helped. And if ht
might have lived at liberty unto that time, ba
would willingly ha\c been drawn in pieces with
horses, and have given his body to have been
tormented.

10<2. The Case of Mr. Oliver St. John, on an Information ore
terms, in the Star-Chamber, 15th April, for writing and pub-
lishing a Paper against a Benevolence collected under Letters
of the5 Privy-Council : 13 James I. a.d. 1615.

[" All that we have in print of die proceedings
on this Case is lord Bacon's Speech as at-
torney-general and prosecutor. See 2 Bacon's
works, last 4to edit. 58:*. The paper which
was the ground of the prosecution is in the
Cabala. See page 332, of 2d part, 3d. edit.
The Judgment of the court wa«., that Mr.
St. John should pay a fine of 5000/. and be
imprisoned during the king's pleasure. See
the note in 3 Bacon, last 4 to edit. 267, and
the Introduc. to Bac. Lett, by Stevens, p.
xxiii. The case appears to have been pro-
secuted with great anxiety; for, according
to a letter from, lord Bacon to the king,, lord
chancellor Egerton, who from the infirmities
of age, was then on the point of resigning the
great seal, expressed* a wish to attend the
hearing, and so make it the conclusion of his
services. 3 Bac, 264. The grand argument
of lord Bacon in favour of the Benevolence
was tnat it was "iihout compulsion. If in
the representation of the conduct of a rival
and enemy, lord Bacon can he trusted, lord
Coke, then chief justice of the KingVhcuch,
at first gave it as hi* opinion, that the king
could not so much as move any of his sub-
jects for a Benevolence, but afterwards re-
tracted in the Star-Chamber, and there de-
livered the law in favour of it stronglv. Ibid.
483. 274.
" Inourintroductory note to the Case of Impo-
sitions, Benevolences were enumerated as
one of the devices of extra-parliamentary
taxation. Ante, page 37 1. As such the sta-
tute of 1 R. 3, c. v, stiles them an unlawful
invention, nod annuis them for ever.' But
the Benevolences, mentioned in this statute,
are described to have been so in name only,
and to have been taken by coercion. Still
therefore it was insisted, that gifts to the
crown out of parliament, if really voluntary,
were lawful. So lord Bacon argued in the
following case; so in the same sense lord
Coke is stated to have declared the law; so
lord Coke himself gives his opinion in his
notes on Benevolences in the 12th Report ;
and so according to him all the judges re-
solved in the 40th of Elizabeth, 12 Co. 119.
Lord Coke lays a stress on the statute of
10 Hen. 7, c. 10, which, after reciting that
tii any of die king's subjects had severally

granted to him diverse sums of money of
their free wills and benevolence, and that
some of these were in arrear, provides a re-
medy for compelling the payment. See Rat-
tail's edit, of the Statutes. This statute, it
must be confessed, seems to give a legislative
sanction to such Benevolences as were really
free offerings. But there is a later statute,
with, words strongly importing, that Bene-
volences to the crown, though voluntary,
cannot regularly be made out of parliament.
The statute we mean is the 13 Cha. 2, c. 4,
which authorises the king to issue commis-
sions under the great sca^> *°r receiving vo-
luntary subscriptions for the supply of his
occasions; but limits commoners to 200/.
and peers to 100/. u- piece, and also the time
for subscribing, and concludes with declaring,
that no commissions or aids of this nature
can be issued out or levied but by authority
of parliament. This in effect concurs with
lord Coke's first opinion in Mr. St. John's
case, as represented by lord Bacon ; the aim
of the statute beinft to condemn Benevolences
hv the solicitation of commissions from the
crown, and so to supply the defect of the
statute of Richard the Third and of the Pe-
tition of Ri^ht, both of which point at com-
pulsive Benex olences. The inducement to
such a declaration of the law probably wsi
an idea, that a formal solicitation from the
crown must necessarily operate, on the minds
of those to whom it was addressee!, with en
influence itlnmst equal to compulsion. — Tbu*
at length it seems to be settled by the legis-
lature, not only that compulsive Benevolence*
are unlawful, but that all commissions from
the crown to solicit and receive voluntas"!
gifts are also unconstitutional/' Hargrove •}

' Letter from Mr. Oliver St. John to the May**
of Marlborough, which was the subject **
the Prosecution; taken from the Cab*-I J
3d edition, part 2, page 332.

As I think, this kind of benevolence is agaix9 !
law, reason and leligion :

1. The law is in the statute called Mag^*
Charta, 9 Hen. 3, cap. 29, that no free-nvs^
be any way destroyed, hot by laws of the lane* **
Secondly, besides that the said statute of Magsc^J
Charta is by all princes since established m**c

96 1]

STATE TRIALS, 13 James I. li>\5.—upon an Information.

[90i

confirmed, it is, in the special case of voluntary
or free grants, enacted and decreed 25 E. 1,
cap. 5, that no such be drawn into custom :
and cap. 6, that henceforth be taken no such
aids, tasks, free grants, or prizes, but by assent
of all the realm, and tor the good of the same.
And in priino It. 3, cap. 2, that the subjects'
and commons in this realm, from henceforth
shall in no wise be charged by any charge or
imposition called a Benevolence, or any such
like charge ; and that such exactions, culled a
Benevolence, shall be damned and annulled for
ever.

First, it is not oiily without, but against rea-
son, that the commons, in their several and
particulars, should be relievers or suppliers of
his majesty's wants, who neither know his
wants, nor the sums that may be raised to sup-
ply the same.

Secondly, it is against reason, that the par-
ticular and several commons, distracted, should
oppose their judgment and discretion to the
judgment and discretion of the wisdom of their

land assembled in parliament, who have there , go about it by word or deed, openly or pri-

denied any such aid.

It argueth in us want of love and due respect
of our sovereign lord and king, which ought to
be in every of us towards each other, which is,
to stay every, one which we see falling, and re-
duce the current. What prosperity can be ex-
pected to beial either our king or nation, when
the king shall, haply out of ignorance, or ('tis
I hope; out of forget fulness or head in ess, com-
mit so great a sin against his God,. a* is the
violating of his great and solemn oath taken at
his coronation, for the maintaining of his laws,
liberties and customs of this noble realm; and
his subjects, fome for fear, some in pride, some
to please others, shall join hands to forward so
unhappy an achievement? Can he any way
more highly offend the divine majesty (whom
he then invocated ?) As also, can he then give
unto another Hen. 4, (if such a one should rise
up, which God forbid) a greater advantage?
Let those articles put up against R. 2, be looked
on, it will appear, that the breach of laws, in-
fringing the liberties, and failing in this oath,
were the main blemishes wherewith he could
di stain and spot the honour of that good and
gentle prince; who indeed was rather by others
abused, than of himself mischievously any way
disposed.

2. As very irreligiously and uncharitably,
we help forward the Ling's majesty in that
grievous sin of perjury ; so into what an hellish
danger we plunge ourselves, even so many of
us as contribute, is to be learned out of the
several curses and sentences of excommunica-
tion given out against all such givers, and,
namely, the two following, viz. the great curse
given out, (he f>G Hen. 3, against all breakers
of the liberties and customs of the realm of
England, with tlu.ir abettor*, counsellors and
executioners; wherein, by the sentence of Bo-
niface archbishop of Canterbury, and the chief
part of all the bishops of this, land, are ipsofucto
fxcommunicutcd. And that of 2kEdw. 1,

denounced immediately upon the acts made
against such benevolence, (ree grants and im-
positions, had, and taken without common
assent ; which, because it is not so large as
that former, I will set down as our books de-
liver the same.

" In the name of the Father, Son, and Holy
Ghost, Amen. Whereas our sovereign lord
the king, to the honour of God, and of the holy
church, and for the common profit of the realm,
hath granted, for him and his heirs for ever,
these articles above written : Robert archbishop
of Canterbury, primate of all Euglaud, admo-
nished all his province, once, twice, and thrice,
because that shortness will not sutler so much
delay, as to give knowledge to all the people
of England of these presents in writing. We,
therefore, enjoin all persons, of « hat estate so-
ever they he, that they, and every of them, as
much as in them is, shall uphold and maintain
those articles granted Ly our sovereign lord the
king in all points ; and all those that, in any
point, do resist, or break those ordinances, or

vately, by any manner of pretence or colour.
We thercfoie, the said archbishop, by our au-
thority in writing expressed, do cx« otmnunicate
and ac curse, and from the body of our Lord
Jesus Christ, and from all the company of
Heaven, and from all the sacraments ot the
holy church, do sequester aud exclude."

Sir, hearing that to-morrow the justices will
he here about this busy work of Benevolence,
wherein you have both sent unto, and talked
with me, and thinking that it may be, you
uould deliver up the names of the non-
givers: forasmuch as, I think, I shall scarcely
be at home to make my further answer, if I
should be called for, I pray you, both hereby
to understand my jnind yourself, and if cause
so require, to let the justices perceive as much.
So leaving others to their own consciences,
whereby in that last and dreadful day they shall
stand or fall before him who will reward e\ery
man according to his deeds, I commend you
to the grace of the Almighty, and rest your
loving neighbour and friend,

Oliver St. Jouk.

Speech of Sir Francis Bacon as Attorney-
General, addressed to the Court of Star-
Charuber, fnm his Works, vol. ii. p. 533.

My Lords ; I shall inform you ore tcnut9
against this gentleman Mr. I. S. a gentleman,
us it seem*, of an ancient house and name ; but,
for the present, I can think of birn by no other
name, tnan the name of a great offender. The
nature and quality of his offence, in sum, is
Uii*. This gentleman hath, upon advice, not
suddenly by his pen, nor by the slip of his
tongue ; not privately, or in a corner, but pub-
licly, as it were, to the face of the king's mi-
nisters aud justices, slandered and traduced
the kini; our sovereign, the law of the land, the
parliament, and infinite particulars of his ma-
jesty's worthy and loving subjects. Nay, the
slander is of that nature, that it may seem to

903] STATE TRIALS, 13 James I. 1015 'flu Case qfMr. Oliocf Si. Jofm, [90*

interest the people in grief and discontent | me favour and attention to set forth and ob-

against the state : w lie nee might have ensued
matter of murmur and sedition. So that it is
not a simple slander, but a seditious slander,
like to that the poet speuketh of, * calamosque
* armare veneuo.' A venomous dart that hath
both iron and poison. — To open to your lord-
ships the true state of this offence, 1 will set be-
fore you, first, the occasion whereupon Mr. I.
S. wrought : then the offence itself in his own
words : and lastly, the points of his charge.—
My lords, you may remember that there was
the la^t parliament an expectation to have had
the king supplied with treasure, although the
event failed. Herein it is not fit for me to give
opinion of an house of parliament, but I will
give testimony of truth in all pi ares. I served
in the lower house, and I observed somewhat.
This I do aihrm, that I never could perceive
but that there was in that hou-e a genera! dis-
position to give, and to give largely. The
clock* in the house perchance ruidit differ ;
some went too fast, some went too slow ; but
the disposition to give was general : s:> that 1
think 1 may truly say, i solo tempore lapsus
4 ninor.' — This accident happening thus besides
expectation, it stirred up and aw, iked in riivere
of his majesty's woithy servants and subjects
or the clergy, the nobility, the court, and others
here near at hand, an affection loving and
chearful, to present the king, some with plate,
•ome with money, as free-will offerings, a thin;;
that God Almighty loves, a chearful giver:
what an evil eye doth I know not. And, my
lords, let me speak it plainly unto you : God
forbid any body should be so wretched as to
think that the obligation of love and dutv, from
thesu>j'ct to the king, should be joint and
not several. No, my lords, it is both. The
subject petitioneth to the king in parliament.
He petitioned! likewise out of parliament. The
king on the other side gives graces to the sub-
ject in parliament : he gives them likewise,
and poureth them upon his people out of par-
liament : and so no doubt the subject may give
to the king in parliament, and out of parlia-
ment, it is true the parliament is intcrcursut
mafinui, the great intercourse and main current
of graces and donatives from the king to the
people, from the people to the king : but par-
liaments are held but at certain times ; whereas
the passages are always open fir particulars ;
even as you see great rivers have their tides, but
particular springs and fountains run continually.
To proceed therefore : as the occasion, which
was the failing of supply by ; arliamenr, did
awake the love and benevolence of those that
were at hand to give ; so it was apprehended
and thought fit by my lords of the council to
make a proof whether the occasion and exam-
ple both, would not awake tho-c in the coun-
try of the better sort lo follow. Whereupon,
•heir lordships devised and directed letters unto
the sheriffs and justices, which declared \ihat
was done here above, and wished that tie
country might be moved, especially men of
value.— Now, my lords, I beseech you give

serve unto you five points. I will number
them, because other men may note them ; ami
I will but touch them, because they shall not
be drowned or lost in discourse, which I hold
worthy the observation, for the honour of the
state and confusion of slanderer* ; whereby it
will appear most evidently what care was ta-
ken, that that which was then done might not
have the effect, no nor the shew, no nor so
much as the shadow of a tax ; and that it was
so far from breeding or bringing in any ill piv*
cedent or example, as contrariwise it is a cor-
rective that doth correct and allay the harsh-
ness and danger of former examples. — The
first is, that what was done was done immedi-
ately after such a parliament, as made general
profession to give, and was interrupted by ac-
cident : so as you may truly and justly esteem
it, ' tamjuam posrhuina proles parliament],' as
an after-child of the parliament, and in pursuit,
in some small measure, of the firm intent of a
parliament past. You may take it also, if you
will, as an advance or provisional help until a
futute parliament ; or as a gratification simply
without any relation to a parliament ; you can
no ways take it amiss. — The second is, that it
wrought upon example, as a thing not devised
or projected, or re* mired ; no nor so much as
recommended, until many, that were never
moved nor dealt with, ex nu-ro tnotu, Imd freely
and frankly sent in their presents. So that
the letters were rather like letters of news,
what was done at London, then otherwise:
and we know * exoinpla ducunt,non trahunt;*
examples they do but lead, they do not draw
nor drive.- -The* third is, that it was not done
, by commission under the great seal ; a thine
warranted by a multitude of precedents, both
ancient, and of late time, as you shall hear
.311011, and no doubt warranted bv law : so that
the commissions be of that stile and tenour, as
that they be to* move and not to levy: but this
was doue by letters of the council, and no
hi <: her hand or form. — The fourth is, that these
letters had no manner of shew of any binding
act of state : for they contain not any special
, frame or direction how the business should be
managed ; but were written as upon trust,
leaving the matter wholly to the industry and
confidence of those in the country ; so that it
was an absque cowpoto ; such a form of letters
as no man could fitly be called to account
upon. — The fifth and last point is, that the
whole carriage of the business had no circum-
stance compulsory.' There was no proportion
or rate 4ct down, not so much as by way of a
wish ; there was no menace of any that should
deiiv; Holeproof of :;ny that did deny; no
ccr:ifvi:'ir of tin- names of anv that had denied.
Iml< ed, if men could not content themselves to
deny, hut that they tntist cc ns«.re and invrish.
nor to e*cu*p themselves, but tin y must accuse
the state, that is another case. Hut I s:»y, for
denying, no man was apprehended, no nor not-
ed. So that 1 verily think, that there is none
so subtle • disputcr in the controversy of Uht-

XU]

STATE TRIALS, IS James I. 1015. — fipon an Information.

[MO

mrbitrhtm, that can with all hit distinc-
tions fasten or carp upon the act, but that there
was free-will in it. — 1 conclude therefore, my
lords, that this was a true and pure benevo-
lence ; not an imposition called a henevoler.ee,
fthieh the statute speaks of; as you shall hear
by one of my fellows. There is a great diffe-
rence, I tell you, though Pilate would not see
it, between ( rex Judxorum,' and * so dicens
1 ragem Judaeorum.' And there is a great
difference between a benevolence and an ex-
action called a benevolence, which the duke of
Buckingham speaks of in his oration to the
city ; and defineth it to be not what the sub-
ject of his good- will would give, but what the
king ot his good-will would take. But this, I
say, was a benevolence wherein every man had
a prince's prerogative, a negative voice ; and
thn word, excuu moy, was a plen peremptory.
And therefore I do wonder how Mr. I. S. could
soul or trouble so clear a fountain. Certainly
it was but his own bitterness and unsound hu-
moars.^Novr to the particular charge. Amongst
other countries, riiese letters of the lords came
to the justices of 1) — shire, who sign i lied the
contents thereof, and gave directions and ap-
pointments for meetings concerning the busi-
ness, to several towns and places within that
county : and amongst the rest, notice was given
unto the town of A. The mayor of A. con-
ceiving that this Mr. I. S. being a principal
person, and a dweller in that town, was a man
likely to give both money and good example,
dealt with him to know his mind. He intend-
ing, as it seems, to play prizes, would give no
answer to the mayor in private, but would take
time. The next day then being un appoint-
ment of the justices to meet, he takes occa-
sion, or pretends occasion to be absent, )>e-
causc he would bring his papers upon the
stage : and thereupon takes pen in hand, and
instead of excusing hiui!*lf, sir* down and con-
triveth a seditious and libellous accusation
•gainst the king mid state, which your lord-
imps shall now hear, and sends it to tlie
mayor : and withal, because the feather of his
quill might fly abroad, he gives authority to the
mayor to impart it to the justices, if he so
thought good. Ami now, my lords, because I
will not mistake or mis-repeat, you shall hear
the Sediiious Libel in the proper terms and
*ords there if. — [I fere the papers were read.]—
My lords, 1 know this paper offends your ears
mock, and the ears of nny i;nod subject ; and
tarry 1 ntn that the times should produce offen-
cts of this nature : but since they do, 1 would
be more sorry they should be passed without
severe punishment -. * unn trudilc factum,* as
*he verse says, altered a little, * ant si traclsilis,

* farti qiio»jiu> traditepo'iiain.' If any man have

• mind to duwour-e of the f.tri, let him like-
*>•€ discourse of the punishment of the fact. —
—Id this writing, my Ion Is »hi re appears a
booster with four liru'ds, of the progeny of him
'Oat is the rather of lyes, and takes his name
fom slander . The first is a wicked and sedi-
&*s slander: or, if I stall use the scripture

phrase, a blaspheming of the king himself;
setting him forth for a prince perjured in the
great and solemn oath of his coronation, wliich
ik as it were the knot of the diadem; a prince
that should be a violator and infringer of the
liberties, laws, and customs of the kingdom ; a
mark for an Henry the 4th ; a match for a
Richard the 3d. The second is a slander and
falsification, and wresting of the law of the
land gross and palpable : it is truly said by a
civilian, tortura tegum pessima, the torture of
laws is more than the torture of men. The
third is a slander nnd false charge of the
parliament, that they had denied to give to
the king; a point ol notorious untruth. And
the last is a slander and taunting of an infinite
number of the king's loving subjects, that have
given towards this benevolence and free con-
tribution; charging them as accessary and co-
adjutors to the king's perjury. Nay you leave
us not there, but you take upon you a pontifical
habit, and couple your slander" with a curse ;
but thanks be to God we have learned suffici-
ently out of the scripture, that as the bird flies
away, so the causeless curse shall not come.
For the fust of these, which concerns the king,
I have taken to myself the opening and ag-
gravation thereof; the other three I have dis-
tributed to my fellows. My lorils, I cannot
but enter into this part with some wonder and
astonishment, how it should come into the
licart of a subject of England to vapour forth
such a wicked and venomous slander against
the king, whose goodness and grace is compara-
ble, if not incomparable, unto any of the kings
his progenitors. This tlierefore gives me a just
and necessary occasion to do two things: the
one, to make some representation of his ma-
jesty; such as truly he is fuund to be in his go-
vernment, which Mr. I. S. chargcth with viola-
tion of laws and liberties : the other, to search
uiid open the depth of Mr. I. S. hi-, offence.
Both which I will do briefly ; because the one,
1 cannot expres KUtlickntlv ; and the other, I
will not pre** too far. My lord>, I mi un to
make no panegyric or laud.sfve; tin* kin;; de-
lights nut in it, neither am I fit fur it: but if it
were hut a counsellor or noMeuKni, whose name
had sutftrid, and wen- to icccivc s-ume kind of
reparation in this hie.ii court, I would do him
that duty as not to p;;r* t is merits and just
attributes, especially snrh as aie lin.i'cd with
the present case, in sihncc: for it j» lit to l.tirh
incense where evil odours have been cast and
raised.' Is it m> that king James *>hall be suid
to be a violator of the hln rtii-s. !;»*>>, and
customs of his kingdoms r Or i- he not i at her a
noble and constant protect* r :.ud conservator
of them all? I eoiicviv this con^'tih in
maintaining religion and the tine chinch ; in
maintaining (lie law*, of ih» Li^d. m, which is
; the subject's hinh-rnJii; in ten- pr rate use of
I the prerogative ; in due ;:ud fit-c administration
| of justice, and o-i>ei\ ation ol the peace of the
| land. For religion, we uiu-t ever nc knowledge
I in the fiist place, that we have u king thatis
the principal conservator of true religion throagb

D07] STATE TRIALS, 13 James I. 161

the christian world. He hath maintained it
not only with sceptre and sword, but likewise
by his pen; wherein also he is potent. He
hath awaked and re-autliorized the whole
party of the reformed religion throughout Eu-
rope; which through the insoleucy and divers
artifices and inchantments of the adverse part,
was grown a little dull and dejected : he hath
summoned the fraternity of kings to enfranchise
themselves from the usurpation of the see of
J tome : he luith made himself a mark of con-
tradiction for it. Neither can I omit, when I
speak of religion, to remember that excellent
act of his majesty, which though it were done
in a foreign country, yet the church of God is
one, and the contagion of these things will soon
pass seas and lands : I uaeuii, in his constant
and holy proceeding against the heretic Yorstius,
whom, being ready to enter into the chair and
there to have authorised one of the most pesti-
lent and heathenish heresies that ever was
begun, his majesty by his constant opposition
dismounted and pulled down. And I am per-
suaded there sits in this court one whom (rod
doth the rather bless for being his majesty's
instrument in that service. 1 cannot remember
religion and the church, but I must think of
the seed-iilots of the ».une, which are the univer-
sities. Hir> majesty, as for learning amongst
kings he is incomparable in his. person; so
likewise hath he been in his government a
benign or benevolent planet towards learning :
by nhose inlluence those nurseries and gardens
of learning, the universities, were never more
in flower nor fruit. For the maintaining of the
laws, which is the hedge and fence about the
liberty of the subject, 1 may truly affirm it was
never in better repair. He doth concur with
the votes of the nobles, * nolurn us leges Amtlia*
' mutarc.' He is an enemy of innovation.
Neither doth the universality of his own know-
ledge carry him to neglect or pass over the
very forms of the laws of the land. Neither
was there ever king, 1 am persuaded, that did
consult so oft with his judges, as my lords that
sit here know well. The judges are a kind of
council of the king's by oath and ancient insti-
tution ; but he useth them so indeed ; he con-
fers regularly with them upon their returns
from their visitations and circuits : he gives
them liberty both to inform him. and to debate
matters with him ; and in the fall and conclu-
sion commonly relies on their opinions. As
for the use of the prerogative, it runs within
the ancient channels and banks. Some things
that were conceived to he in some proclama-
tions, commissions, and patents, as overflows,
have been by his wisdom and cure reduced;
whereby, no doubt, the main channel of his
prerogative is so much the stronger. Forever-
more overflows do hurt the channel. As for
administration of justice between party and
party, 1 pray observe these points. There is
no news of great seal or siguet tluuiiies u broad
for countenance or delay of causes ; protections
rarely granted, and only upon great ground,
or by consent. My lords here of the council

5.— The Case o/3/r. Olkcr St. John, [90b

and the king himself meddle not, as ljaih been
used in former times, with matters of mtuwt
and tuumf except they have apparent mixture
with matters of estate, but leave tliem to the
king's courts of law or equity. And for mercy
and grace, without which there is no standing
before justice, we see, the king now hath reign-
ed twelve years in his white robe, without
almost any aspersion of the crimson dye of
blood. There sits my lord iiobart, that served
attorney seven years. I served with bim. We
were so happy, as there passed not through our
hands any one arraignment for treason ; and
but one for any capital offence, which was that
of the lord Sanquhar; the noblest piece of
justice, one of them, that ever came forth in
any king's time. As for penal laws, which lie
as snares upon the subjects, and which were
as a nemo scit to king Henry 7 ; it yields a re-
venue that will scarce pay for the parchment
of the king's records at Westminster. And
lastly for police, we see manifestly his majesty
bears some resemblance of that great name,
a prince of peace : he hath preserved his sub-
jects during his reign in peace, both within and
without. . For the peace with states abroad,
we have it usque ad sat ie tat cm : aud for peace
in the lawyers phrase, which count trespasses,
and forces, and riots, to be contra pacem ; lei
me give your lordships this token or taste, that
this court, where they should appear, had never
less to do. And certainly tlicre is no better sign
of omnia bene, than when this court is in a still.
But, my lords, this is a sea of matter ; and
therefore I must give it over, and conclude,
that there was never king reigned in this nation
that did better keep covenant in preserving the
liberties and procuring the good of his people:
so that I must needs say for the subjects of
England,

' () fortunatos nimium sua si bonanorint;'
as no doubt they do both know and acknow-
ledge it ; w hatdocver a few turbulent discourses
may, through the lenity of the time, take bold-
ness to speak. And as for this particular, touch-
ing the Benevolence, wherein Mr. I. S. doth
assign this breach of covenant, I leave it to
others to tell you what the kiug may do, or
what other kiii^s have done ; but I have told
you what our king and mv lords have done:
which, I say and say again, is so far from intro-
ducing a new precedent, as it doth rather cor-
rect, and mollifv. and qualify former precedents.
Now, Mr. J. S. let me tell you your fault in few
words: for that I am persuaded you see it al-
ready, though 1 woo no man's repentance; but
J shall, as much as in me is, cherish it where I
find it. Your oiTcnce hath three parts knit to-
gether : your slander, your menace, and your
comparison. For your t hinder, it is no less
than that the kins >-> perjused in his coronation
oath. No greater olfence than perjury; no
greater oath than that of a coronation. 1 leave
it ; it is too great to aggravate. Your menace,
that if there were a Bullinghroke, or I cannot
tell what, there were matter tor him, is a very
seditious passage. You know well! that bow*

909]

STATE TRIALS, IS James I. \6 15. —upon an Information.

[910

soever Henry 4*s act, by a secret providence of
God, prevailed, yet it was but au usurpation ;
and it it were possible fur such a one to be this
day, wherewith it seems your dreams are trou-
bled, I do not doubt, his end would be upon
tbe block ; and thai he would sooner have the
ravens sit upon his head at London-bridge, than
the crown at Westminster. And it is not your
interlacing of your ' God forbid/ that will salve
these seditious sj>eeches : neither could it be a
forewarning, because the matter was past and
not revocable, but a very stirring up and in-
censing of the people. If I should say to you,
for example, * if these times were like some for-

* mer times, of king Henry 8, or some other

* times which God forbiJ, Mr. I. S. it would

* cost you your life ;' I am sure you would not
think this to be a gende warning, but rather
that I incensed the court against you. And for
your comparison with Richard 2, 1 see, you
follow the example of them that brought him
upon the stage, and into print, in queen Eliza-
beth's time, a most prudent anu admirable
queen. But let me in treat you, that when you
will speak of queen Elizabeth or king James,
vou would compare them to king Henry 7, or
king Edward l,or some other parallels, to which
they are alike. And this I would wish both
you and all to take heed of, how you speak se-
ditious matter in parables, or by tropes or ex-
amples. There is a tiling in an indictmeut
called an inuendo ; you must beware how you
beckon or make signs upon the king in a dan-
gerous sense. But I will contain my so If and
pre** this no farther. I may hold you for turr
buleut or presumptuous ; but I hope you are
not disloyal : you are graciously and mercifully
dealt with. And therefore ha\ingnow opened
to my lords, and, as 1 think, to your own heart
and conscience, the principal part of your
offence, which concerns the king, 1 leave the
rest, which concerns the luw, parliament, and
the subjects that have given, to Mr. Serjeant
and Mr. Solicitor.

The following passages relating to this case
are extracted from lord Bacon's works, Birch's
edition.

To tbe King, reporting the state of lord chan-
cellor Ellesmere's health.
I found him [the lord Chancellor J in be (J, but
his spirits fresh and good, speaking stoutly, and
without being spent or weary ; and both will-
ing and beginning of himself to speak, but
wholly of your majesty's business : wherein I
cannot forget to relate this particular ; that he
wished that hit sentencing of (>. S. at the day
appointed mmht be his lust work, to conclude
his service*, and express his affection towards
your majesty, i told him, 1 knew your ma-
jesty would be very desirous of his presence
that day, so it might be without prejudice : but
otherwise your ' majesty esteemed a servant
more than a service, especially such a servunt.
Jan. 29, 1614. Old Style.

To the King touching Peucham's business, &c.
For Mr. St. John, your majesty knoweth, tbe

day draweth on ; and my lord chancellor's re-
covery, the season, nnd "his age, promising not
to he too hasty. J spake with him on Sunday
at what time 1 found him in bed, but hi* spi-
rits strong, and u>t spent or wenried, and
<>p:ikc wholly of your business, lending me
from one matter to another; and wished and
seemed to hope, that he might attend the day
for O. S. and it were, as he said, to be his last
work to conclude his services, and express his
ulfcciiou towards your majesty. 1 presumed
to s:iv to him, that 1 knew vonr uiajcstv would
be exceeding desirous of his being prcseut that
dav, so as thai it midit be without prejudice to
hi* continuance ; but that otherwise your ma-
jesty e&teemed a servant more than a service,
especially such a servant. Surely in mine opi-
nio!! your majes'y were better put oil* the day
than want his presence, considering the cause
of the putting off is so notorious ; and then the
capital and the criminal may come together the
next term. Fn. Bacon. Jan. 31, 1011. O. S.

To the King, touching my Lord Chancellor's
amendment, &c.

He [the I»rd Chancellor] had sent also to my
lord treasurer, to desire him to come to him
about that time. His lordship came ; and, not
to trouble your majesty with circumstances,
both their lordships concluded, myself present
and concurring, that it could be no" prejudice to
your majesty's service to put off the day for
Mr. St. John till the next term : the rather,
because there arc? seven of your privy-council,
which are at least Humerus mid part of the
court, which are by infirmity like to be absent;
that is, my lord chancellor, my lord admiral,
my lord of Shrewsbury, my lord of Exeter, my
lordZouch, my lord .Stanhope, and Mr. chan-
cellor of the dutchy ; whcieibre they agreed to
hold a council to-morrow in the afternoon for
that pm-pose. It is tiue, that I w;ts always of
opinion that it was no time h»t; and \ do
think so the rather, because 1 could be content,
that the matter of Peachnm were iin*t settled
and put ton jvomf. 1 or there he perchance
that uould make the example upon Air. St.
John to stand for all. l'n. Balon. Feb. 7,
1614. O. S.

To the Kinjr.

It may plense your excellent majesty ; Mr.
St. John Ins dav is past, and well prist. I hold
it to be Jiuih* bi( rims ; it hath a good aspect
to that which i» past, and to the Ititure, nnd
doth b«»th satisfy and prepare. All did well :
my lord chief insiiee delivered the 1 iw for the
Bern voh nee st rouidy ; 1 would he had done it
timely. Mr. chancellor of the exchequer
spake finely, somruhnt after the manner of my
late lord privy s^al ; nor all out so sharply, but
as elegantly. Sir Thomas I,akc, who is also
new in that court, did very well, familiarly and
counsellor-like. Mv lord of Pembroke, who is
likewise a si rani:' r there, did extraordinary
wvil, and became liim-elt well, and had an evi-
dent applause. 1 meant well also ; and be-
cause my inJbrujaliou was the ground ; having

91 1 J STATE TRIALS, 1 3 James I. 1 6 \$.—Triak <f the Mvrdcrtn.

[912

spoken out of a few beads which I had ga-
thered, for I seldom do more, I set down as
soon us I came home, cursorily, a frame of that
I hud said ; though 1 persuade my.self I spake
it with more life. I buve sent it to Mr. Mur-

ray, sealed : if your majesty have so much idle
time to look upon it, it may give some light of
the day's work : but I roost humbly pray your
majesty (o pardon the errors. God preserve
you ever. Fr. Bacon. April 89th, 1615.

103. The Trial of Richard Weston,* at the Guild-hall of London,
for the Murder of Sir Thomas Overbury,f )9 Oct. 1 3 James I.
a.d. 1615.

1 HE Commissioners were, the Lord Mayor,
Haves ; the Lord Chief Justice of England,
Coke ; Justice Crook ; Justice Doderidge ;
Justice Haugbton ; Serjeant Crew ; and sir
Henry Montague, Recorder.

Tlie Court being set, and the king's special
commission read, the Lord Chief Justice gave
the Charge ; the effect whereof was,

First, To express the king's pious inclina-
tions and command unto just proceedings
against all such us should be any way proved
to be guilty of the murdering and poisoning % of sir
T. Overbury, his majesty's prisoner in the Tower.

Secondly, To aggravate the manner and
quality of the murdering, in shewing the base-
ness of poisoning above all other kinds of mur-
der, declaring the vengeance of God, and his
justness in punishing offenders : He alledged
9 Gen. 6. * Quicunque eifuderit human um
* sanguinem, effundetur sanguis illius ; ad ima-
' ginem Dei quippe factus esr homo.1 He also
took the example of Uriah by David ; he there-
in observed how adultery is most often the be-
getter of that sin.

Then he declared, That of all felonies, mur-
der is the mo«>t horrible ; of all murders, poi-
soning the most detectable ; and of all poison-
ing, the lingering poisoning.

He shewed how that by an act of parlia-
ment, 22 H. 8, cap. 9, it was made treason,
mid that wilful poisoners should be boiled to

* lie had been an apothecary's man, but
was now made under-keeper to the new lieu-
tenant of the Tower, s»r Jervis Elwes.

f lie was son to sir Nicholas Overbury of
Burton-upon-the-hill in Gloucestershire, edu-
cated at Queen's-College in Oxford, and at the
Middle-Temple, of which his father was a
bencher. See a full relation of the manner of
his death, Bacon's Works, vol. 1. p. 77, 79,
and its discovery, ibid. p. 80.

X " Frankly n and Wesron came into Over-
bury *s chamber, and found him in infinite tor-
ment, with contention between th»? strength of
nature, and the working of the poison, and it
being very like nature had gotten the better in
that contention, by the thrusting out of boils,
blotches, and Mains : they fearing it might come
to light upon the judgment of physicians that
foul play had been offered him, consented to
stifle him with the bed-cloaths, which accord- 1 liini of his lift?
inglv was performed, and so ended his misera-
ble life, with the assurance of the conspirators
that he died by poison, none thinking otherwise

death ; rehearsing the example of one Richard
Rowse, that had poisoned a man and woman,
and was therefore scalded to death.

Then he laid open to the jury the baseness
and cowardliness of poisoners, who attempt
that secretly, against which there is no means
of preservation or defence for a man's life ; and
how rare it was to liear of poisoning in Eng-
land, so detestable it was to our nation : But
that since the devil had taught divers to be
cunning in it, so that they can poison in what
distance of space they please, by consuming
the nntivwn calkhtm or humidim rmdkmle in
one month, two, or three or more, as they list ;
which they four manner of ways do execute,
1. gustUy 2. haustu, 3. odort, 4. cmtactu.

He finished his charge with serious exhorta-
tions to the jury to do justice in presenting the
truth, notwithstanding the greatness of any that
upon their evidence should appear to be guiHy
of the same offence : comforting both judges
and jury with the scripture, Psal. 5, v. ultimo,
* For thou, Lord, wilt bless the righteous ; with
' favour wilt thou compass them as with a shield.'

The charge being ended, the jury, consisting
of 14 persons, did for the space of an hour, de-
part the court into a private room, where they
received their evidence from Mr. Fenshaw, hrs
majesty's Coroner, and his highness's counsel
prepared and instructed for that purpose, with
the examinations and confessions as well of the
prisoner himself, as of divers other witnesses,
before that time taken by the lord chief justice
u( England, and others the lords of his majes-
ty's council.

In the meau time, Mr, William Goare, she-
riff of Loudon, was commanded to fetch his
prisoner, remaining at his house, to be ready in

court for his arraignment.

So a certain space after, the Grand Jury re-
turned to the bar, and delivered in their bill of
indictment, signed Billa Vera. Whereupon the
prisoner was set up to the bar, and the Indict-
ment read by Mr. Feushaw, which contained in
effect as folio weth :

That Richard Weston, being about the age
of sixty y carts "<>t hating the fear of God be-
fore his eyes, but instigated anil seduced by the
devil, devised and contrived not only to bring
upon the l>ody of sir Thomas Overbury, knight,
«reat sickness and diseases, but also to deprive

and to bring the some to pfcss»

but these two murtherers." Weldon's Court
and Character of king James, 75.

918] STATE TRIALS, 13 James I. 1615.— 4/* &> Thomas Overbuy. [914

9 Maii 1013, 11 Jacobi, &c. at die Tower of
London, in the parish of Alhallows Barking,
did obtain and get into his hand certain poison
of green and yellow colour, called Rosalgar,
(knowing the sume to be deadly poison) and the
•ame did maliciously and feloniously mingle and
compound in a kind of broth poured out into
a certain dish; and the same broth so infected
and poisoned, did give and deliver to the said
air Thomas Overbury as wholesome and good
broth, to the intent therewith to kill and poi-
son the said sir Thomas, which broth he took
and did eat.

Alio the said Weston upon the first of July,
11 Jacobi, as aforesaid, did in like manner get
another poison or poisons compounded, called
White Arsenick, and (knowing the same to be
deadly poison) did give unto the said sir Tho-
mas Overbury, as good and wholesome to eat,
who cook and did eat.

Also that Weston, upon the said 19th of July
following, did get another poison called Mer-
cury Sublimate, (knowing the same to be mor-
tal poison) and put and mingled the same in
tarts and jellies, and gave the same unto sir
Thomas Overbury, as good and wholesome to
cat, which he in like manner took and did eat.

Also the said Weston, and another man be-
ing an apothecary, afterwards, upon the 14th of
September, feloniously did get a poison, called
Mercury .Sublimate, (knowing tbc same to be
deadly poison) and put the same into a clyster
mingled with the said poison : and the said
clyster the said apothecary, for the reward of
20/. promised unto him, did put and minister
(at good and wholesome) into the guts of said
airT. ; and that Weston was present and aid-
ins to the said apothecary in ministering and
infilling the said clyster ; and that immediately
after, at well the taking of the said poisoned
meats, and ministering the said clyster, the said
air T. did languish, and fell into diseases and
distempers; and from the afpresaid times of
Caking and eating the said poisoned meats, and
rainiftcering the said clyster, he died : and so
the jury gave their verdict, That Weston in this
manner had killed, poisoned, aud murdered the
•aid sir T. against tlie king's peace and dignity.

Which Indictment being read, he was de-
manded if he were guilty of the felony, murder-
ing, and poisoning, as aforesaid, \ea or no. To
which be answered, doubling his speech, * Lord

* have mercy upon me ! Lord have mercy upon

* me !' But beiug again demanded, he answered,
Not Guilty. And being then demanded how
lie would be tried, he answered, he referred
himself to God, and would be tried by God ;
refuting to put himself and his cause upon the
jury or country, according to the law or custom.

Hereupon the lord chief justice, and all other
in their order, spent the space of an hour in
persuading him to put himself upon ihe trial of
the law ; declaring unto hitn the danger and
mischief he ran into by resisting his ordinary
course of trial, being die means ordained by
God for hit deliverance, if he were innocent ;
mod how by this means he would make himself

VOL. if.

the author of his own death, even as if he should
with a knife or dagger kill or stab himself, ex-
horting him very earnestly either with repent-
ance to confers his mult, or else with humility
and duty to submit himself to his ordinary
trial. whereupon he stubbornly answered,
Welcome by the grace of God ; and he refer-
red himself to God. And so when no persua-
sions could prevail, the lord chief justice plainly
delivered his opinion*, That he was persuaded
that We>tou had been dealt withal by some
great ones, guilty of the same fact, ai accessary,
to stand mute, whereby they might escape their
punishment : and therefore he commanded (for
satisfaction of the world) that the queen's at-
torney there present should declare, and set
forth the whole evidence, without any fear or
partiality : and yet notwithstanding, he once
more used much persuasion to tlie prisoner to
consider what destruction he brought upon him-
self by his contempt ; and declaring unto him
how his offence of contempt was, in refusing his
trial, aud how the laws of the land had provided
a sharper and more severe punishment to such
offenders than unto those that were guilty of
high treason : and so he repeated the form of
judgment! given against such, the extremity and
rigour whereof was expressed in these words,
oncreyjriporti e* fume. For tlie first, he was to
receive his punishment by the law, to be ex-
tended, and then to have weights laid upon him,
no more than he was able to bear, which were
by little aud little to be increased.

For the second, that he was to be exposed
in an open place, near to the prison, in the open
air, being naked.

And lastly, that, he was to be preserved with
the coarsest bread that could be got, and water
out of the' next sink or puddle to the pluce of
execution, and that day he had water he should
have no bread, and that day he had bread he
should have no water ; and in this tonnent he
was to linger as long as nature could linger out,
so that oftentimes men lived in that extremity
eight or nine dnys : adding further, that as life
left him, so judgment should rind him. And
therefore he required him, upon consideration
of these reasous, to advise lumaclf to plead to
the country, who notwithstanding absolutely-
refused.

* The chief justice had intelligence under-
hand, that Yelverton, an obliged servant to the
house of the Howards, had advised this counsel
for Weston, in order to prevent the prosecution
from reaching any farther: Yelverton was at
this time Solicitor-general, but does not appear
to have had any share in any of the trials for
the murder of sir Thomas Overbury, though the
Attorney and other counsel of the king had
their parts in them.

f Concerning ititnding mute and the puoish-
mrnt of pt nance or peine fort et dure, See 9
Hale's F.C. c.43, but now by st. 12 G. 3, c. 30,
standing mute shall have the same judgment
and nil other consequences as a coavkuoii by
verdict or confestiou.

S s

915]

STATE TRIALS, IsJaMbI. \Gl*.—Triak if tkc M*rdtr*t

Hereupon the lord eluef justice willed sir
Lawrence Hyde, the queen's attorney, and
.there of counsel tor the king, to manifest onto
the audience the guiltiness .of the said Weston
by liis own confession, signed wkh his own
hand ; and if in the declaration thereof they
.may meet with auy great persons whatsoever,
as certainly there were great-ones confederate
in that fact, he should boldly and faithfully open
whatsoever was necessary, and he could prove
against then). Whereupon Mr. Attorney began
.his accusation :

First, be charged the countess of .Somerset
and the .earl to be principal movers unto this
.unhappy conclusion, Mrs. Turner to be of the
confederacy* "and the pay-mistrtss of the pri-
soner's reward ; in which the Attorney's bold-
ness was very observable, in terming the coun-
tess a dead -and rotten branch, which being lopt
off, the noble tree, meaning that noble family,
would prosper the better.

Secondly, he proceeded to the cause, which
lie affirmed to be the malice of the countess :
and the ground of this malice he alledged,
and by many inducements he evidently amnned,
that sir Thomas Overbury had dissuaded the
viscount Rochester from tunt adulterate marri-
age with the countess of Somerset, then coun-
tess of Essex. And for tliis he alledged as fol-
low eth x

Sir T. Overbury having divers times dissuaded
the earl, then viscount Uochetter, from seeking
by any menus to procure marriage with the
petratess of Essex, to which he saw the earl
too much inclined ; and harms; very earnest
conference with the earl one untlii in private in
-the gallery at White-Hall concerning his in-
tendment, perceiving the carl too much at that
time lo desire that unlawful communication ;
in the ardency of his fervent aJTection unto the
carl, and greut presence of the future ninety
it would inevitably bring unto nun, (his well-
beloved lord and fticudj used speeches to this
effect :

* Well, my Lord, if you do miirry that filthy
base woman, vou will utterly ruin your honour
and yourself; you shall never do it l»y my
advice or consent ; and if you do, you hud best
look to staud fust.'

My lord replied, bewitched with the love of
the said countess, moved v\ ith sir T. Overbury
for so slighting her, answered, * my own legs
are straight mid strong enough to bear me up ;
but, iu fai tli, I will be even with you for this :'
and so parted from him in a great rage.

Tins conference was over-heard by some in
an adjoining room, and their depositions for the
truth thereof wepe read in court.

Although this conference moved the earl to
loch a sudden choler, yet it seemed sir T. Over-
bury conceited it no otherwise than a sudden
-extreme distemperature or passion, and not a
final conclusion of their bosom-friend as before,
in which the earl seemed reciprocal : howso-
ever, in his double-dealing it seemed to be
^nearly otherwise.

For upon this the eaxi morel the king to

appoint sir T. Overburjr wnhaswidor fcr
The king, willing to prefer sir T. Orerbtsry, as
one whose worth and valvar wt» not unknown
to his majesty, accordingly adjoined ham that
service ; the which sir 1 . was moat witting to
accept of, as a gracious aspect of the king s>
wards him: which wdbngncssof hiswtsiptisvea1
by the deposition of two. or three several wit-
nesses read in court, and bv the oatk ef sir
Dudley Diggs, who voluntarily* at the enraiga*
ment in open court, upon his oath, witnessed
how sir Thomas had imparted to him oil readir
oiess to be imployed on an embassage.

•The earl as well abasing the king's fsveun,
in moving to shew favour where he sneaot the

party should take no benefit, aa beariogisB-
honest friendship, iu conference with sir Tho-

mas concerning that impioyment,
him to refuse to serve embassador, where
(uuotb he) I shall not be able to pi sot in such
kindness to your advantage, as having yoo with
me : and (quoth lie) if you be blamed or cam*
mitted for it, care not, I will quickly tree too
from all harm. Sir Thomas, tout betrayed by
a friend, refused to serve in that nature;
w liereupon be was committed to the Tower.

Being thus committed, he was presently com-
mitted close prisoner, and a keeper he must
have ; and who most that be hot this Weston,
whe was commended by the countess of Essex
to sir T. Monson, to be by him rrcoounended
over unto the lieutenant of the Tower, to be
keeper to sir T. Overbury. Sir T. Monson,
according to the countess's request, cosnmended
the said Weston to sir Jervis Elwes ; where-
upon the said lieutenant entertained the said
Weston, and appointed him to keep sir T.
Overbury. The said Weston, upon his own
confession read in court, signed with his mark,
hud during the time that site was countess of
Essex, been a procurer and pandar to the said
earl, then viscount Rochester, and the countess
of V'&ex, for the conveying and effecting of
| their adulterate desires, which they did divers
times consummate, meeting in Mrs. Turner's
house once between the hours of eleven and
twelve, and at Hammersmith, aud at divers
times else* here, for that purpose; that now,
by the procurement of the countess, (who
hated sir T. Overbury, for being a good means
to keep then* from cont;rmnating tlieniselves
with such lustful cmbmcements, and from the
purposed marriage they mutually laboured to
compass) her pandar was become liis keeper, a
fit agent for lust and murder.

Weston now being become sir T. Overbary's
keeper, kept hiin so close, that he scarce had
the comfort of the day's brightness ; neither
suffered he any one to visit him, father, bro-
ther, his best friends, his nearest kindred were
strangers to him from the beginning of bis im-
prisonment unto the end.

Mrs. Turner, upou the first day's keeping,
promised to give him a contenting reward, if
he should administer such things to sir T. Over-
bury as should be sent unto him, thinking him
a fit instrument to compass black murder, that

917]

STATE TRIALS, 13 James I. 1615.— «f Sir TIioihos Overbuy. [918

wo* so well acquainted with foul lust ; and so
iudced they found him, tor lie agreed and did
prom iife to administer whatsoever she would
send him. Mrs. Turner, upon tin* murderous
promise, tlie very same day (hat Weston be-
come sir T. Overbury 's keeper, l>< iug the 6th
day of May, 16115, sent unto him the said
Weston certain yellow poison, called Rosalgur,
in a vhil.

Weston having received that poison, the
aforesaid 6th of May at night, bringing sir T.
Overbury *s supper in one hand, and the vial of
poison in the other, meets with the lieutenant, I
nnd asks him in tlicse terms, * Sir, -hall I give |
it him now?' Upon this word ' now/ the lord
chief) ust ice demurs, to aggravate the inalici- ,
ousuess; affirming that this part ii le < now,'
sheweil a resolution to poison him. < What shall
you give him ?' replies the lieutenant. Weston
replies, ' as if yovi did not know, sir.' The lieu-
tenant blaming him, he carries the poison into
nn inner room, which Weston, the °;h of May,
did administer to sir T. Overbury in hro'h.
This was proved both by Weston and the lieu-
tenant's confession.

Weston having given this poison, whicli
wrought very vehemently u ith him by vomits
and extreme purging, he presently demands his
reward of Mrs. Turner, wlio replies, ' That the
' man is not yet dead : perfect your work, and

* you shall have your hire.' This was also' con-
fessed by Wcstou under his marks.

Sir T. Overbury, by his close imprisonment,
growing sick, and daily languishing, after three
or four weeks space (considering he had not
got hi* freedom and release, having no friends
suffered to come unto him, hut only such as
the earl sent to comfort him, of his own fol-
lowers) writ to die earl to remember his im-
prisonment; who received answer, ' The time
4 would not sutler, but so soon as possible mi^ht

* be, he would hasten his delivery :' so indeed
it seems he intruded to do, but not so as sir T.
Overbury conceived, who>e true ulftct ion would
not admit his judgment to debate the strange-
ness of his imprisonment, winch he might well
think the earl might easily have relieved.

The 5th of June, iNcount Rochester sent a
letter to Mr T. Overbury; in the letter he sent
him a white powder, willing sir T. to take it: |
' It will,' quoth he, 4 make you more sick; but

* fair not, I wdl make this a means for your
1 delivery, and for the recovery of your he.dtli.'
Sir T. Overbury never dreaming of bnse trea-
chery, bur conceiving it us u friendly policy,
received the said powder, which wrought upon
him more vehemently; wheicupon his sickness
grew more vehement or violent, and his lan-
gimhment increased : which white powder,
upon Weston's confession, was poison.

Sir T. Overbury \s sickness increasing, and
with it his wondering that he could not in two
months space be released, after his physiek
taking, he thus writes to the carl, lamenting uU
own estate ; for his faith being thus shaken w ith
the earl's unkindness, gave way for his judg-
ment to scab lliota uciionBj rather like an un-

derstanding man, than like a loving friend, at
appeareth by his letter sent to viscount Roches-
ter, the effect whereof was thus, as it is averred
by the deposition of sir T. Overbury 's servants,
who saw the letter.

Sir Thoiuat Overbury's Ixttcr to the Viscount

Rochester.

" Sir; I wonder von have not vet found
means to effect my delivery; but I remember
you said, you would be even with me [not sus-
pecting, as it seemeth, any poisoning, but. an
unkind forgetfulness of my lord of Rochester]
and so indeed you are ; hut assure yourself, my
lord, if you t\o not release me, but suffer me
thus to die, my blood will be required at your
hands."

My lord comforts him, and excuses, that it
cannot yet be compassed : Sir '1 nomas, after
the powder taken, lan^uisheth deadly ; and to
comfort him, some follower* of my lord of
Rochester's hic sent to him daily, in the name
of my lord, by the appointment ami procure-
ment too of the lady of Essex (as W est on con-
fessed) to visit and comfort him, nnd to in treat
him if he desiied any meat, that he should speak,
and it might be better perhaps provided lor
him, than he should have in the Tower: this
was about three months after hi* imprisonment.
— He, as men sick desire luscious meats, de-
sired tarts and jellies, which were provided by
Mrs. Turner, with the knowledge of the said
countess, and sent unto him, of which he did
ent ; the which tarts wr re poisoned with Mer-
cury Sublimate, not being so well coloured as
other tarts me, nnd Weston confessed that be
was straitly charged not to taste thereof.

Sir T. thus continuing languishing with the
extremity of sickness, until the 6th of Sep.
when the aforesaid Mrs. Turner did procure an
apothecary's boy for twenty pounds to poison a
clyster, which was by the boy and Weston after-
wards ad ministered" as good physiek, upon the
7th d;iy of October; after the receipt of the
clyster, he fell into a great extremity of vomit-
ing, and other puruine, which left him not, till
it caused his soul to leave his poisoned body ;
this Weston confessed and signed. — Being thus
dead, he was presently and very unrcverently
buried in a pir, digged in a very mean place ;
on hi» body thus venomously infected, appeared
divers Mains and blisters : "whereupon, they, to
take away us well his good name, as his life, did
slanderously report, that he died of the French
pox ; but this report was cleared in court, by
the depositions of his servants, and other men
of worth there read.— That before hi* imprison-
ment, he had a dean and sound body, only l.e
had an issue in his left arm, our post ly made for
the benefit of his nature, t»r the avoiding of
rheum and ill humours, which, with continual
Htting at his study, he had subjected himself
unto. —He further* observed the confession of
the Lieutenant to be, that if uiiy prisoner died
there, his Imdy was to be viewed, and inquisi-
tion to be taken by the coroner.

But sir T. Overbury*! friends and others by

W9]

STATE TRIALS, 13 James I. 1615 Trials qf the Murder**

[WO

00 means might be suffered to see his body ;
and although it was reported, that there was an
inquisition taken, jet it could by no means be
found.

After Mr. Attorney had ended bis speech,
Mr. Wnrr, also of counsel for the king, declared
to the court what familiarity he had with sir T.
being both of the Temple together, much com-
tnending his singular honest and virtuous con-
versation ; affirming, That he was addicted to
no dishonest actious : and from this he pro-
ceeded to urge his sad usage in the Tower,
where he might have no company, but the
apothecary and the Walloon; and repeating
the sending of the tarts and jellies in my lord
of Somerset's name, he ended his speech with
this saying, ' Pereat unus, ne pereant ornnes ;
' pereat peccans, ne pereat Respub.' Then,
by the commandment of the court, were read
by Mr. Fenshaw the Examinations of divers wit-
nesses taken before my lord chief justice and
others, which in effect were as follows :

Laurence Davies, servant to sir T. Overbury,
examined the 15th of October, before the
• Lord Chief Justice.

He saith, That he had served sir T. Over-
bury eight or nine years ; in all which time he
was very healthful, and never kept his bed for
any sickness, only he was sometimes troubled
with the spleen, tor ease whereof, he had hy the
advice of his physician an issue made in his left
arm ; but before his imprisonment, he had no
sores, blisters, or other defects in all lus body. —
Also he saith, sir T. would have gone over upon
the embassage, but was dissuaded by Somerset,
who promised to bear him out: he complained,
he needed not to he prisoner if Somerset would ;
and that if lie died, his blood would be required
nt his hands. — That Somerset was as good as
his word, who told him at Newmarket, he
would be even with sir T. Overbury.

Henry Payton, another servant of sir T. Over-
bury's, examined the loth of October, 1615.

He affirmeth, that sir T. was of a very good
constitution of body ; tltat he used sometimes
to run, to play at foik, and such like ; that he
was of a moderate diet, never had any sores,
saving the issue in his arm. That sir T. wrote
letters to Somerset, signifying that he needed
not to lie in prison if Somerset would, and if he
died, his blood should be required at his hands.
—That sir T. at one of the clock at night,
meeting Somerset in the gallery at Whitehall,
had speeches with him touching the countess,
whom he called base woman, and told Somer-
set, he would overthrow all the king's favours
and honours ; and upon displeasure between
them nt this conference, sir T. Overbury de-
sired Somerset that he mij;ht have lus portion
due, and he would shift for himself. Where-
unto Somerset answered, And my logs are
straight enough to carry me ; and so flung away
in anjier. All which this cxaminate heard, being
in a chamber next to the gallery.

tiir Dudley Diggs being present in court, and

sworn, declared viva voce; that be was scot by
a privy-counsellor, a great man, to sir T. Over-
bury, to bring him to this great man, which he
did ; and coming back together over the water
in a boat, sir T. was much discontented ; the
reason whereof he said was, That be was per-
suaded by the great roan to withdraw himself
from the court for some reasons which be dis-
closed not: And sir Dudley afterwards being
sent by the lords, to know the resolution of
sir T. touching the embassage, he found him
to rely upon the lord of Somerset, saying. My
precious chief knows the king's mino*feetter than
any, and 1 the mind of my precious chief.

Richard Weston, the prisoner, examined, the
6th of October, 1619, coram Coke & Crew.

He affirmeth, That before sir T. Overbury
was in the Tower, he, this examinant, carried
three letters to Somerset, from the lady Essex,
to Hoyston, Newmarket, and Hampton-court,
and he delivered answer to Mrs. Turner ; and
that upon the letter to Hampton-court, he bad
answer only by word of mouth, That bis lord*
ship would come : And that coming back, be
met with the countess and Mrs. Turner half
way, in the coach, whom he told, that the lord
only answered so; whereupon the countess
strook out of the way into a farmer's bouse
hard by, whither within a little space Somerset
came, and that afterwards they met in the
night at Mrs. Turner's house in Paternoster
Row. And he confesaeth, that of a year before
sir T.'s imprisonment, no man carried letters
between them but he.

Sir Thomas Monson examined the 5th of Oc-
tober, coram Coke & Crew.

He saith, that he never knew Weston until
sir T. Overbury was prisoner in the Tower;
and that he preferred him to the Lieutenant, to
be keeper of sir T. Overbury, at the request of
the countess.

Anne Turner, widow, examined the 11th of
October, 1615, coram Coke & Crew.

She saith, That Weston was an antient ser-
vant, and her husband's bailiff in the country :
She deuieth to have any thing to do in placing
him in the Tower ; but saith, that the countess
of Essex did effect it, and used the help of sir
Thomas Monson therein.

Sir Jervis Elves examined the 3d of October,
1615, coram Coke & Crew.

He saith, He had a letter from sir T. Mon-
son, requesting him, that Weston might be
keeper of sir T. Overbury, and that he did per*
form it ; and afterwards having conference with
sir T. Monson, he told him, That his keeper
was not to surfer any letters or tokens, or any
tilings to be delivered unto him.

Richard Weston the prisoner examined again.

He confesseth, He shewed him the glass that
was delivered liim by his son from the countess
to the Lieutenant, and told him, that it came
from the countess of Essex, and that he per-
suaded him not to give it to sir Thomas. '

Ml] STATE TRIALS, 13 James I. 1615 — of Sir Thomas Overbuy. [922

He with, That he hud divers tarts from the
countess, to give to sir T. with c»veats that he
himself should not taste of them ; a- (J confess-
ed), that be thought they were poisoned.

lie saith, Mrs. Turner appointed him to
come to White-half, and that she denit with
him to give sir T. Over bury the water, and
told him, he should not dnnk thereof; and
was promised a great reward, and he suspected
it was poison. His son afterwards delivered
him the glass, which Itc shewed to the Lieute-
nant, who rebuked him, and so he set the glass
in a study near to sir TVs chamber, but gave
it him not ; although he told Mrs. Turner, the
next day, he had given the water, which made
air T. to vomit often, and to be exceeding sick.

He saith, Mr. James and Mrs. Rawlins, ser-
vants to the countess, came often to know of
the examinant, how sir T. Overbury did, and
what he would eat ; and they delivered him
jellies and tarts, which he gave sir T. who did
eat thereof.

He saith, he demanded of Mrs. Turner his
reward, who answered, he was to have no re-
ward until sir T. was dead, and be was promis-
ed a pursuivant's place ; but confesseth, that
afterwards, at two several times, he received
secretly after the death of sir T. for a reward of
Mrs. Turner from the countess, 180/.

Wm. Weston, son to the prisoner, examined.

He confesseth, he received a glass from the
countess, by her servant, two inches long, being
wrapped in paper, which he delivered to his fa-
ther in the Tower.

Then was -read the Confession of the Lieute-
nant to the King.
He saith, That Weston met him, carrying
tir T*'§ supper in the one hand, and the glass
injthe other, and demanded of the Lieutenant
this, ' Sir, shall I give it him now ?' Whereat
the Lieutenant stepped to him, and asked him,
« What r* To which Weston said, f Why, sir,
1 know yon not what is to be done r* And so
the Lieutenant having made him to confess the
matter, dissuaded hiin, and he seemed to be
resolved not to do it : and afterwards this Wes-
ton confessed, that an apothecary had SO/, for
administering a clyster to sir T. Overbury.

Weston, the prisoner, examined before the lord
Zouch and others ;
Confesseth, That sir T. had a clyster which
gave him sixty Stools and a vomit ; also being
confronted with the writings of sir Jervis Elwes,
and charged therewith, he confesseth the same
to be true.

Simon Marson, musician, examined ;
Saitb, He served sir T. Monson six years,
and is preferred by him to the king's service,
bat waiteth sometimes upon sir T. Monson ;
he saith, That he received divers tarts and
jellies from the countess of Essex, to be car-
ried to the Lieutenant of the Tower for sir T.
Overbory»

Paul de la Bell, examined ;
faith, That oa the 3d of July, he made sir

T. Overbury a bath by Dr. Micham*s adrice,
to cool his body, and that he saw his body very
exceeding fair and clear ; and again, he saw
his body, being dead, full of blisters, and so
consumed away, as he never saw the like body.-

George Rawlins, a kinsman to sir T. Overbury,

examined ;
Saith, That upon the bruit of the murder of
sirT. he was taxed by some, why he made no
prosecution; he thereupon made a petition,
and delivered it to the king, that the examina-
tion of the cause might be referred to law, and
denieth that he was persuaded by any to the
contrary : he saith, that he coming often to the
Tower to see sir T. could not be suffered to see
him so much as out at the windows ; and Wes-
ton told him, it was the commandment of the
council, and of the Lieutenant.

The Lieutenant of the Tower examined, coram

Coke & Crew.
He saith, That after the death of sir T.t
Weston came to him, and told liim he was
much neglected and slighted by the countess,
and could receive no reward ; but afterwards
he confessed he had received 100/. and should
receive more : and the Lieutenant also saith,
that sir T. Overbury was very angry with his
apothecary at certain vomits which he had,
and also at the tarts and jellies he bad,
which would be found within a day or two
standing, ill-coloured, and that nobody did eat
thereof but sir T. ; and Weston confessed unto
him, that the apothecary had 20/. for adminis*
tering the clyster.

These Examinations being read, and applied
to the purpose, the Lord Chief Justice said, he
would discharge his duty, first to God, in giving
all ilory, for the bringing to light of so horrible
and wicked a fact; and next to the king his
great master, who as in case of the like nature,
as in the case of Sanquer and Turner, so espe-
cially in this, hath given straight charge of just
and due examination to be had without any
manner of partiality or fear in the world ; to
the intent, that as well the innocent might be
freed, as the nocent and guilty severally pu-
nished.

And for this purpose, his majesty hath with
his own hand written two sheets of paper on
both sides, concerning justice to be administer-
ed to all parties which were to be examined ;
which writing the Lord Chief Justice shewed
to the Lord Mayor, and the rest of the com-
missioners; and then he declared the king's
justice, who, albeit the many favours and ho-
nours which his majesty liad bestowed on the
lord Somerset, and his nearness to his person,
by reason of his office, yet he had committed
lum prisoner to the dean of Westminster's
house, under the custody of sir Oliver St. John,
and also had committed his lady. So having
last of all, again, demanded of the prisoner, if
he would put himself to be tried by the coun-
try ? which he refused ;

The court was adjourned until Monday fol-
lowing, at two of the clook in the afternoon.

923]

STATE TRIALS, 15 James I. 1613.— Trials qf the Murdcrtrt

[W4

On Monday the 23d of Oct. 1615, to which
day the court was adjourned by the said com-
missioners, after proclamation made, the jury
of life and death called, the prisoner Wesion
was set to the bar, and Mr. Fenshaw, Clerk of
the Crown, declared unto hiui, that he had
been formerly arraigned, and had pleaded Not
Guilty ; so lie demanded of him, how he would
be tried : whereupon the prisoner answered,
By God and his country. And thereupon the
jury being sworn, and the indictment being
read as before, sir Lawrence Hyde, the queen's
Attorney, being of counsel with the Ling, hav-
ing briefly rehearsed ihe effect of the indict-
ment, shewed how that he must necessarily
mention others that were guilty of the same
fact, wherein if anv other man or woman were
touched, the cause it was, and not he that
touched them.

And therefore Weston being but a stranger
to sir T. Overbury, and one, who by himself
could reap no benefit by his death, it was
against all reason that he would do it of him-
self, therefore, said he, 1 must needs open the
whole plot ; and he first declared the worth
and honesty of sir T. Overbury, shewed his fa-
miliarity with Rochester, and how often he
willed him to forbear the company of the lady
Essex, terming her a vile and base woman,
which stirred up the anger and malice of the
countess against him.

And that afterwards, the kin? intended, for
the honour and preferment of sir T. Overbury, to
send him upon an embassage ; w hereunto he was
willing, but was dealt with and persuaded by
the lord Rochester, to disobey the king's direc-
tion and counsel, with promises that he would
bear him out; by which contempt sir T. was
committed to the Tower the 2'id of April,
1613, Sir W. Wade being Lieutenant of the
Tower ; the 6th of May following, sir W. was re-
moved, and sir J. Elwes put in his place. And
the next day day after, Weston, by the pro-
curement of the countess, was preferred to the
service of the Lieutenant, and to be keeper of
sir Thomas; which Weston had been servant
to Mrs. Turner, and the only agent in convey-
ing letters and messages between Rochester
and the countess ; and be, whose office should
hare been to save and keep, was now appointed
to kill and murder him. lie shewed how the
very same day of his entertainment at the
lower, he was sent for to the countess, who
persuaded him, that if he would give sir T. a
water that should be delivered him, he should be
well rewarded, and she bid him not taste of it
himself. And that on the 9th of the same
month of May, the said water was secretly sent
from the counters to Western by his son ; and
the same night Wc»ton meeting with the Lieu-
tenant, and having sir T.'s supper in one hand,
and the said glass in the other, he demanded of
the Lieutenant, ( Sir, shall I give it him now ?*
Whereupon the Lieutenant took him aside,
and dissuaded him so far forth, that be con-
fessed, he thanked God upon his knees, that be
had met with him.

Out Mr. Attorney observed this notwith-
standing that the Lieutenant did let him go
away with the poison ; and albeit he now de-
nieth he ever gave the poison, yet said ht
delivered it : he confessed to Mrs. Turner he
had done it, saying, it made him very sick, and
to vomit often, demanding of her his reward ;
to which she answered, He was not to have his
reward until sir T. were dead. Then he shewed
how the last of June following,' a certain pow-
der was sent in aJetter to sir T. Overbury from
Rochester, persuaded him not to'fcar though it
made him sick, for that sliould be his reason to
move the king for his enlargement. And that
the 14th of Sept. Weston and the apothecary
ministered the clyster to, sir T. which gave him
sixty stools and vomits, and that he died the
next day ; he remembered the strangeness of
the blotches and blisters on his body, being
dead ; he shewed how Weston caiue to Mrs.
Turner for his reward, which was deferred till
his death ; and that he had received in secret
from the countess by Mrs. Turner at several
times for his reward 180/., and that the apothe-
cary had for his reward 20/. All which Weston
hud confessed to be true. Then remembering
how ignominiously they buried him, not suffer-
ing any to see him, for fear he should be digged
up again, and without any coroner's inquett
that should be found ; and thus he ended kL<
speech.

And to all this opened and set forth by Mr.
Attorney, Mr. Warr only added thus much,
which he desired the Jury to cons.&er. That
Weston was servant to Mrs. Turner when sir T.
was committed, and then he was entertained
and made keeper to sir T. Overbury ; and hav.
ing dispatched his business (sir T. being dead
and poisoned), he stayed no longer at tut
Tower, but returns again to Mrs. Turner.

Then the lord chief justice exhorted die jury
to take God before their eyes, and with equal
balance to weigh as well the answer of the
prisoner, as the proofs and examinations against
him; declaring unto them how quietly and
freely he had examined him from time to time,
without menacing or rough usage, which the

firisoner confessed : and my lord, for matter of
aw, satisfied the Jury, That albeit the poison-
ing in the indictment be said to be with Rosal-
gar, White Arsenick, and Mercury Sublimate,
yet the Jury were not to expert precise proof
in that point, shewing how impossible it were
to convict a poisoner who useth not to take any
witnesses to the composing of his sibber sauce* :
wherefore he declared the law in the like case;
as if a man be indicted for murdering a man
with a dagger, and it fall out upon evidence to
have been done with a sword or with a rapier,
or with neither, but with a staff; in this case
the instrument skilleth not, so that the Jury
find the murder. And so in this prisoner*!
case, if' they would be satisfied of the poisoning,
it skilleth not with what; therefore he requireth
them to attend the proof. [3 Co. Inst. 49. 135,1
Then were read first tlic Examinations of
Laurence pavies, as at the first Arraigwneat;

985]

\

STATE TRIALS, 13 James I. 1615.— of Sir Thomas Overbuy.

[92G

then of Henry Paytnn, both servants to sir
T. Overbury; then of Weston himself formerly
read.

Then the Examination of sir David Wood,
taken the 21st of October 1615, since the
first Arraignment.

He sahh, He bad obtained the king's con-
tent to a suit, for which he was a petitioner,
anil that he was crossed by the lord Rochester
and sir T. Overbury : that for certain words he
had received from sir T. Overbury, he intended
to bastinado him ; that his suit would have been
worth 2S0O/. and that Rochester would not let
it pass, unlets he might have 1200/.

That the lady Essex sent for this examinant
upon the day (hat the king and queen went to
Rochester with the lady Elizabeth, and told
him, she understood that he had received much
-wrong from sir T. Of crbury, and that he was a
.gentleman that could revenue himself; and that
sir T. had much wronged her; and sir David
answered, That sir T. had refused him the
field ; she persuaded him to kill him, and pro-
mised him 1000/. for his reward, and protection
from hts enemies; which he refused, saying,
He would be loth to hazard going to Tyburn
upon a woman's word; hut she still persuaded
him be might easily do it, as he returned late
borne from sir Charles Wilmot's in his coach.

Then were read the Examinations of sir T.
Monsou, and Mrs. Turner, as at the first
Arraignment.

Next, the examination of Weston before the
lord Zouch and sir Ralph Windwood, sir T.
Parry, and sir Foi:lkc Grevill, at the Duchy-
house, the 29th of Sept. 16 1 j, where Weston
did confess, that he was pieferred to the keep-
ing of sir T. (herhury by Mrs. Turner, upon
the means and request of -ir T. Monsnn to the
Lieutenant ; and that she told him, If he would
give sir T. Overbury a water which the countess
would send him, he should be well rewarded ;
and being; confronted with a relation in writing,
which sir J. KUes had made to the king, as
touching nr T. Overbury, he confessed the
to be all true.

The Examination of the Lieutenant, taken the
5th of October, 1615.

He sail h, Tliat having conferred with his ser-
vants about the time of Weston's coining to the
Tower, he found it to be the very next day
after himself was made Lieutenant, and had the
possession of the Tower ; and that he had let-
ters from sir Thomas Monson, that Weston
might be keeper to sir J . Overbury ; which
letters be had lost. Sir 'I homas Monson told
bim the chief purpose of Westou's 'keeping of
air T. Overbury, was, to suffer no letters or
other messengers to pass to or from him, and
ao that purpose he advised the Lieutenant.

Weston's Examination the 5th of Oct. 1615.

He eonresseth, That the next day be was pre-
ferred to the Tower, he bad the keeping of sir

T. Overbury, and soon after he received the
glass by his son secretly fi om the countess ; and
that the Lieutenant told him, all the torts came
likewise from her : and he confesseth, the coun-
tess willed him to give them to sir T. but not to
taste of them himself.

Weston's Examination the 1st of Oct. 161.5.

Confessed), That Mrs. Turner appointed hiin
to come to Whitehall to the eouine-8, the next
day that he was at the Tower; and that l.e
went, and the countess did request him to give
to sir T. Overbury a wuter, which she would
deliver him, but not to drink of it himself; she
promised to give him a good reward, and he
suspected it was poison : he received the glass
by his son, and told the Lieutenant of it, who
did rebuke him, and he set the glass into a lit-
tle study. He confesseth, he told Mrs. Turner
he had given it him, and demanded his reward ;
that Mr. James and Mr. Rawlins, my lord of
Somersets men, cunie often to know of him
what tarts, jellies, or wine sir T. woi-ld have,
and that they brought divers times tarts and
jellies, whereof he d;d eat.

He confesseth to have received of the coun-
tess in rewards, after sir T. Overbury's death,
by Mrs. Turner secretly, in all 180/.

The Confession of the Lieutenant to his majesty.

After Weston was placed in the Tower, he
met with me with sir Thomas's supper, and the
glass, and asked me, 4 Sir, shall I give it him
now ?' wherein I protest unto your majesty my
ignorance, a» 1 would also be glad to protect
the same to the world : so I privately conferred
with Weston, and by this means made him as-
sured unto me, and knew all, hut dissuaded
' him ; and Weston has since the death ot sir T.
; Overbury, confessed to me, that the clyster was
his ovei throw, and the apothecary had 20/. for
adtniiiistiing it. Your majesty's servant, tit
i Jervis Elvis.

1 Here the lord chief justice observed by this
1 question of Weston to the lieutenant. * Sliall I
I give it him now?' that it was certainly agreed
; and plotted before what should be done, and
that nothing more was doubted on but the time
when it should be done.

The Testimony of Lawrence Dnvie.% taken upon
Oath before Coke and Crew.

He amrmcth, that Weston eVHvered him a
letter from sir Thomas Overbury to Rochester,
the effect whereof was, that he would do In*
endeavour in being a means of friendship be-

1 tween Rochester and some others; but as

! touching the marriage with the countess of
Essex, lie would never give his consent : and

! ft-hn bringing a letter from Rochester to sirT.

j Overburv, ho delivered it to Weston, and a
paper of white powder fell out, which Roches*

1 tcr persuaded sir T. to eat, and not to fear,

though it made him sick, for that should be a

means for his enlargement; so they put the

\ powder into the letter again. He saith, that he

j saw some part of the powder in Weston's hand*

| after the death of sir T. Overbury.

9*7] STATE TRIALS, 13 James I. 1615.— Trial* of the Murderen [MS

Then were read the Examinations of William
Weston and Paul de la Bell, as at the first
Arraignment.

The Examination of George Rawlins.

George Rawlins, esq. the l^h of October,
1615, saith, That ujmwi the bruit of poisoning of
eir T. Overbury, being taxed of divers, for that
he stirred not in the matter, sir T. being bis
kins man and means of his preferment ; he did
of himself prefer a petition to the king, that the
cause might be referred to the judges of the
law, for ordinary course of justice, rather than
to the lords of the council, by them to be exa-
mined ; of which he had a gracious answer :
and smith, that of fourteen days before the death
of sir T. Overbury, he could never be suffered
to see him, either in his chamber, or at the
window ; which, Weston said, was the com-
mandment of the lords and the Lieutenant.

And here theLord Chief Justice declared what
a scandal they put upon his majesty and the
state, that a gentleman and a freeman, being
only committed upon contempt, should be more
streightly and closely kept than a traitor or a
bond slave, so that neither his father, brother,
nor friend might possibly sec him. And to that
point, Mr. Overbury, lather to sir T., swore,
being present in court ; who said, That his son
being prisoner in the Tower, and himself not be-
ing suffered to have access unto him, found at last,
that Rochester was the man that withstood it.

The Lieutenant examined the 5th of October.

Saith, That after the death of sir T. Over-
bury, Weston told him, that he was neglected
by the countess, and demanded his reward:
Mrs. Turner told him, the countess had not
money; but afterwards he confessed, he had re-
ceived some, and should have more ; and that
Mr. James told him, my lord of Somerset would
reward him for the pains he took with sir T.
Overbury. He saith, That the tarts were sent
from the countess to sir T. which looked ili-fa-
vouredly, and that the jellies with a little stand-
ing would be furred, and thinketh they were
poisoned : also Weston told him, that the apo-
thecary had 20/. for uiving the clvster, and that
he was poisoned with that clyster.

Here was well observed by the court, as by
the queen's attorney, That Weston was not sin-
gle in his Confession, but whensoever he had
confessed any thing in any of his Examinations,
it was likewise confirmed by the Examinations
of others, as the Lieutenant, his son, &c.

>

The Examination of William Goare, one of
the Sheriffs of London.

Saith, Weston being in his custody, he often
persuaded him. to put himself to be tried hy his
country, telling him, he would first kill himself,
nud ask God forgiveness afterwards : and Wes-
ton answered, He hoped he would not make a net
to catch little birds, and let the great ones go.

Theo Mr. Warr craving leave of the court to
•peak, protested, in bis experience he never
touud a business so prosecuted with degrees of

malice, which was the ground of sir T. Over-
bury 's overthrow : he urged the evidence in the
examination of sir David W,ood, and shewed
the reasons of the malice against him to be, for
that he was so great an impediment to affec-
tions. Then he made the dependency Mrs.
Turner had to the lady, and Weston to Mrs.
Turner, and how they all concluded to kill sir
T. Overbury, the like whereof he said our fathers
never saw before us ; and he lamented the
place from whence the poison -came, should be
from the court, the place (said he) from whence
all men expect their safeties and protection.

Lastly, he observed the finger of God, even
in this, that the poison had been scarcely sus-
pected at all, or enquired after, had it not been
tor the extraordinary strange things appearing
after his death, which was the first only cause
of suspicion and muttering.

The evidence being given, Weston was de-
manded what he could say tor himself? Who,
although he had before confessed all his exa-
minations to be true, yet he seemed to excuse
himself in a kind of ignorance or unawares :
he said, he received the said glass, and
thought it was not good, bat desired the
giving of it to sir Thomas ; being demanded,
why he had formerly accused one Franklin,
for delivering him the said glass from the coun-
tess? (from whom indeed it was sent;) he
confessed it was to save his child, and finally
could say nothing that had any colour of ma-
terial or substantial point to excuse or argue
innocency in him. bo the court referred him
to the jury; who went together, aud within a
short *<pace returned, being agreed upon their
verdict, and there at the bar gave in, that
Weston was guilty of the felonious murdering
and poisoning of sir T. Overbury. Aud then
the clerk of the crown demanded of Weston,
what he coufd say for himself, why judgment
should not be pronounced against him accord*
ing to law ? To which he answered, lie referred
himself to my lord, and to the country. And
then the lordchief justice, before he pronounced
sentence of death, spake to this effect, that fur
the duly of the place, he must say somewhat;
and that to two several persons : First, to the
auditory : and, secondly, to the prisoner.

Aud that which he spake to the auditory, he
divided into four parts : 1st, The manifestation
of the glory of God, and honour of the king.
2dly, The preventing of other damned crimes
of poisoning. Gdly, An Answer to certain ob-
jections. 4thly, That there is no practice of
conspiracy in prosecuting of the business.

For the 1st, he observed the finger of God
in the manifestation and bringing to light of
tins matter, having slept two years, beiug sha-
dowed with greatness, which cannot overcome
the cry of the people.

Ho observed also the providence and good-
ness of God, who put into the hearts of him-
self and the rest of the judges, die day of the
prisoner's last arraignment, when he stood mute,
not to give judgment against him for that time,
but defer it till uow ; and how in Uie mean

*»] STATE TRIALS, IS James I. 161$.— qf Sir Thomas Overbuy.

[flSO

k pleased his majesty out of hi? gracious care
and pity, to send to the prisoner first the bithop
of London, next the bishop o( Ely, to admo-
nish and persuade him for the saving or his
soul ; who, after each of them luid spenc two
hours with him, it pleased God (when they
had left him) to move his heart, so that now
be did put himself to be tried by the country ;
bj which means (using Weston's own words)
be said) the great ilies shall not escape, but
receive their punishment. For conclusion of
hit first point he lastly observed, * Divinum

* quiddam inralgi opinione,' that notwithstand-
ing so maay uncertain rumours touching this
case, at last it proved to be true.

Sdly, He declared, how for prevention of
this damned crime* of poisoning, justice was the
colden mean, and declared his majesty's reso-
lution streightly to execute justice for that
treason ; and he used this saying, ' Nemo pru-
dens,' 6cc. and desired God that this precedent
of Overbury might be on example and terror
Against this horrible crime, and therefore it
snigbt be called, ' The great Oyer of poison-

* iag.'

Sdly, He said, th.it at the arraignment there
were certain criticks, who had given out, the
prisoner should deny his examinations ; and
found much fault, for that the examinations
were read, the prisoner standing mute. But
for the first, how untrue it was, all the world
tawt the prisoner here confessing them all,
being read and shewed unto him : and for the
second, besides that it was exceeding discreet
and convenient the world should receive some
satisfaction in a cause of that nature, he cited
and shewed, that by the laws of the land they
ought and were bound to do so, notwithstanding
the greatness of any, who might thereby be im-
peached ; of whom he said, although this was
4 nnum crimen,' yet it was not * unictim crimen.'

4thly, As touching the supposed practice or
conspiracy, he solemnly protested to God, he
knew of none, nor of any semblance or colour
thereof; and therefore he much inveighed
against the baseness and unworthiness of such
as went about so untruly and wickedly to slan-
der the course of justice. And so he came,

> last of all, to that which he had to speak of Web-
ton the prisoner.

First, touching the wickedness of his fact,
he very seriously exliorted him to an unfeigned
confession and contrition for the same, declar-
ing unto him, how that his confession would be
n. satisfaction to God and the world, and that
by his f:iith and true repentance be would lay
hold upon the merits of his Saviour.

he persuaded him, that no vain hope (which
is a witch) should keep him back from giving
satisfaction to tlie world, by discovering the
guiltiness of the great-ones ; assuring him, that
alter this life, as death left him, so judgment
should find him.

And lastly, taking occasion there to remem-
ber this poisoning to have been a popish trick,
which he instanced by examples of one Gtrr-
n and us de Birlanus ; mentioned 22 Edw. 1.
Squier, that attempted to poison queen Eliza-
beth's saddle ; lx>pez, and Mrs. Turner : ho
then proceeded to give judgment, which was,

That the prisoner should be carried from
thence to the place from whence he came, and
from thence to Tyburn, and there to be hanged
by the neck till he was dead.

Judgment being given, the lord chief justice
commanded, that the prisoner might have con-
venient respite, and the company of some godly
learned men to instruct him tor his soul's health.

He was afterwards executed at Tyburn, pur-
suant to the sentence. At the time of his .exe-
cution, sir John Hollis (afterwards carl of
Clare) and sir John Wentworth, out of friend-
ship to the earl of Somerset, rode to Tyburn,
and urged Weston to deny all that He had
before confessed : but Weston bring prepared
for death, resisted their temptations, sealing
penitently the truth of his confessions with his
last gasp ; and sir John llollis, sir John Went-
worth, together with Mr. Lurnsdeu, who had
published a relation of the proceedings against
Weston at his arraignment, were afterwards
prosecuted in the Star- Chamber, for traducing
the king's justice in those proceedings.*

ana. — ^ — — « .^ >^— nss^^aa^

* Bacon's Works, fol. edit. vol. 1. p. 80— 80.
vol. iv. p. 282.

104. The Trial of Axxe Turner,* Widow, at the Kings-Bench,
the 7th of November, for the Murder of Sir Thomas Overbury,
Mich. 13JabiesI. a.d. 1615.

THE indictment whereupon Richard Weston
took his trial being repeated verbatim, she was

■ ____

• " And now poor Mrs. Turner, Weston and
Franklyn, began the tragedy. Mrs. Turner's
day of mourning being better than the day or'
her birth, for she died very penitently, and
shewed much modesty in her last act, which is
to be hoped was accepted with Cod ; after that
died Weston, and thenwas Franklyn arraigned,
who contested that Overbory was smothered to

VOL. II,

indicted for comforting, aiding and assisting
the said Weston, in the poisoning to death sir

deith, not poisoned to death, though he had
potoon i;iveti him. Here was Coke glad how to
cast about to bring both ends together, Mrs.
Turner and Weston being already hanged for
killing Overbury with poison, but La, being the
very quintessence of law, presently informs the
jury, that if a man be done to death with pis-
tols, pooiuivls, swords, halter, poison, Ac. so he
3o

631]

STATE TRIALS, 13 James I. lflll.— Trials qf the Murderer*,

[932

T. Overbary ; to which she pleaded Not Guilty,
putting herself upon God and the country.*
Whereupon a sufficient Jury of two knights,
and the rest esquires and freeholders of Mid-
dlesex, were sworn and impannelted for the
trial, whereof sir T. Fowler was foreman.

Sir Ed. Coke, lord chief justice, told her,
that women must be covered, in the church, but
not when they are arraigned, and so caused her
to pu.* off her hat ; wluch done, she covered her
hair with her handkerchief, being before dressed
in her hair, and tier hat over it.

Sir Laurence Hyde, the queen's atturney,
opened tbc matter much to the effect as he
did at "Weston's Arraignment, shewing the
wickedness and lieinousness of poisoning : he
shewed further, that there was one Dr. Forman,
dwelling in Lambeth, who died very suddenly,
and a little before his death desired that he
might be buried very deep in the ground, or else
(saith he) I shall fear you all. — To him, in his
life-time, ofteu resorted the countess of Essex
and Mrs. Turner, calling him father :f their
cause of coming to him win, that by force of
inagick, he should procure the now earl of
Somerset, then viscount Rochester, to love her,
and sir Arthur Man waring to love Mrs. Tur-
ner, by whom, as it was there related, she had
three childreu. About this business, the coun-
tess of Essex wrote two Letters, one to Mrs.
Turner, another to Dr. Forman, as followeth :

The Countess's Letter to Mrs. Turner.
[Burn this Letter.]

" Sweet Turner ; I am .out of all hope of
any good in this world, for my lather, my
mother, and my brother said, I should lie with
him ; and my brother Howard wus here, and
said, he would not come from this place all
winter; so that all comfort is gone; and which
is worst of all, my lord hath complained, that
he hath not lain with me, and I would not
sutler him to use me. My father and mother
are angry, but I had rather die a thousand times
over ; for besides the. sufferings* I shall lose
his love if I lie with him. I will never desire
to see his face, if my lord do that unto me. My
lord is very well as ever hu was, so aj> you may
sec in what a miserable case I am. You may
bend the party word of ail; lie sent me word
all should he well, hut I sh'ill not he so happy
as the lord to love me. As you have tuken I
pains nil this while for me, so now do all you
can, for never so unhappy as now ; for I am j
not able to endure the miseries that are coming j
on mc, but I cannot he happy so long us r his '
man live lh : therefore pray for me, for I have

be done to death, the indictment i*» good, if hut '
indicted for any of those ways: but the sood '
lawyers of those times w ere. not of (hat opinion, j
but did believe thai Mrs. Turner was directly
murthered by lord Coke's law us Ovcrbury was
without any law.** Sir A. Wedou'* l-uurt and
Character of king James, p. 106.

• 3 Co. Inst. 49. 130.

t Complete ILsL of England, vol. hi. p. 6!>3.

need, but I should be better if I had jour com-
pany to ease my mind. Let bim know this ill
news : if I can get tins done, you shall have as
much money as you can demand, tliis is fair
play. — Your sister, Frances Essex."

A Letter from the Countess to Dr. Forman.

" Sweet Father; I must still crave your
love, although I hope I have it, and shall de-
serve it better hereafter : remember the galls,
for I fear though 1 have yet no cause but to be
contident, in you, yet I desire to have it as it
is yet remaining well ; so continue it still, if it
be possible, and if you can you most send me
some good fortune, alas ! 1 have need of it.
Keep the lord still to ine, for that I desire;
and be careful you name me not to any body,
for we have so many spies, that you must use
all your wits, and all little enough, for the
world is against me, and the heavens favour me
not, only happy in your love ; I hope you will
do me good, and it I be ingrateful, let all mis-
chief come unto me. My lord is lusty and
merry, and drinketb with his men ; and all the
content he gives me, is to abuse me, and ate
me as doggedly as before : I think I shall
uever be happy in thi9 world, because he hin-
ders my good, and will ever, I think so ; re-
member, 1 beg for God's sake, and get me
from this vile place. — Your affectionate, lovioj
daughter, Frances Essex. — Give Turner wan-
ing of all things, but not the lord : I would
not have any thing come out for fear of the
Lord Treasurer, for so they may tell my father
and mother, and fill their ears tull of toys/'

There was also shewed in court certain pic-
tures of a man and woman in copulation, made
in lead, as also the mould of brass, wherein
they were cast, a black scarf also full of white
crosses, which Mrs. Turner had in her custody.
At the shewing of these, and inchanted papers
and other pictures in court, there was heard a
crack from the scaffolds, which caused great
fear, tumult and confusion among the specta-
tors, and .throughout the hall, every one fearing
hurt, as if the devil had been present, and
jirowu angry to have his workmanship shewed,
by Mich as were not his own scholars ; and this
terror continuing about a quarter of an hour,
after silence proclaimed, the re»t of the cunning
tricks were likewise shewed.

Dr. Forman'j wife being administratrix of
her husband, found Letters in packets, by which
much was discovered ; r»he was in court, and
do posed that Mrs. Turner came to her house
imnii-iiately after her husband's death, and did
demand certain picture* which were in her but-
band's >ludy ; namely, one picture in wax;
very sumptuously appareded in silks and sat-
tin>, as also one oilier sitting in form of a naked
woman, spreading and lauiig forth her hair iu
a lookint-i;ia*?, which Mrs. Turner did confi-
dently afiirm to he in a box, and that she knew
in what pari or room of the study they were.—
Mrs. Forman further depo*eth, that Mrs. Tur-
ner und her husband would he sometimes three
or four hours locked up in hit >tudy together*

933]

STATE TRIALS, 1 3 James I. 1 0 1 5.— of Sir Thomas Overbuy. [934

She did depose further, that ber husband bad
a riug would open like a watch.

There was also a Note shewed in the court,
made by Dr. Forman, and written in parch-
ment, signifying what ladies loved what lords in
the court; but the Lord Chief Justice would
not suffer it to be read openly in the court. —

Mr. Turner sent Margaret her maid to Mrs.
Forman, and wished that all such Letters and
Papers as concerned the earl of Somerset,
or the countess of Essex, or any other great
personages, should be burnt ; telling her, that
the Council's Warrant should come to search
the study, and that all his goods might be
seized : whereupon she aud her maid Margaret,
wkh the consent of Mrs. Forman, burnt divers
Letters and Papers; but yet she kept some
without their privity. — There was also enchant-
ments shewed in court, written in parchment,
wherein were contained all the names of the
blessed Trinity, mentioned in the scriptures;
and in aoother parchment, -f-B.+ C.+ I). + E.
and in a third likewise in parchment, were writ-
ten all the names of the Holy Trinity, as also a
figure, in which was written this word Corpus ;
and upon the parchment was fastened a little
piece of the skin of a man. — In some of these
parchments, were the devils particular names,
who were conjured to torment the lord Somer-
set and sir Arthur Manvvaring, if their loves
should not continue, the one to the countess,
the other to Mrs. Turner.

Mrs. Turner also confessed, that Dr. Savo-
ries was used in succession after Forman, and
practised many sorceries upon the carl of Es-
sex's person.— Mrs. Turner being in a manner
kept close prisoner in one of the sheriff's houses
in London, before she was brought to the bar,
knew not that Weston was executed ; but by
the proceedings, having understanding thereof,
and hearing divers Examinations read, it so
much dejected her, that in a manner she spake
nothing for herself. Also Examinations and
Witnesses, viva voce, that were produced at
Weston's Arraignment, and divers others, were
now read again, as the Examinations of one
Edward Pain, John Wright, and Robert Free-
man.

Symcots, Raulins, Paytc, and Williams, at
one of these examinations, gave evidence, that
one Franklin, being an apothecary and drug-
gist, was the provider of all the poisons given to
sir Thomas Overbury. — A Chirurgeon there
deposed, that he cured Franklin of the pox, and
that at several times he demanded of tins Chi-
rurgeon, what was the strongest poison ? The
Chirurgeon demanding of him what he would
do with it, Franklin replies, Nothing but for his
experiences and to try. conclusions. Another
Examination of one Mercer, who had confer-
ence with the said Franklin, calling him cou-
sin, who demanded of this examinant, What
news? He answered, I hear ill news, I urn
sorry that my old lord aud master's son is found
insufficient, and not able to content the lady. —
Franklin replies, I have a hand in that business ;
I have a great friend of my lady of Essex, she

allows me Qs. 6d. a-day for my boat-hire, and
10i. a-week for my diet, I could have any mo-
ney I would. Mercer replies, But, cousin, how
can God bless yuu in this business? Franklin
answers, Let them talk of God that have to do
with him, my lord of Somerset and the countess
will bear me out in any thing I do: if you have
any suit, wherein you may do yourself any
good, aud I may gain by it, I will warrant you
I will pet it. — Frances deposeth, that Franklin
married his sister, and that he thinketh in his
conscience she was poisoned ; and that upon
some discontent, he heard him say, He would
be hanged never a whore or quean of them all.
The Lord Chief Justice made a Speech upon
divers Examinations there read, That the earl
of Somerset gave directions, that of the powder
he sent to Overbury, that which should he left,
should be brought back Hgain : his pretext was,
that it should make him sick: which sliould be
the ground to' make the king grant his li-
berty, saying further, It would do Overbury
good : and he had tarts and jellies likewise sent
him by the countess, with express command-
ment, that none must eat of them but sir
Thomas, saying, they will do him no harm.—
At another time, the countess sent tarts, jellies
and wine, with directions, that those which
had been formerly sent, should be brought
back again : and those last brought, should he
given him at supper, and then all should be
well: but directions given, that neither the
Lieutenant nor his wife might eat of them, but
they might drink of the w hie, for in the tarts
and jellies there might he litters, hut in the
wine there might he none. And afterward* it
was openly related, and proved by divers Wit-
nesses, that those words letters were private to>
kens between the countess, and the Lieute-
nant, and Weston, to give notice what things
were poisoned, and what not. — In the exami-
nations that were of Weston, it was related,
that Mr. James told him, that tlie earl his
master would pay him for his pains about sir
T. Overbury.

Then the Lord Chief Justice gave in charge
to the jury, concerning the F.videncc they h-id
formerly heard, and told them, That Weston
at his Examination, had confessed that all he
had said formerly w.ai true. — He further re-
lated, what a great vexation and grief it was
to the king, that Somerset only by making use
of his favour and love, so foul a fact was done ;
as, 1st, To be the occasion to put sir T. Over-
bury to employment for the embassage at
Russia ; and, iJdly, to make him Ttfuae the
same, and to give right cause for his commit-
ment: 3dlv, To bear him in hand, that ho
would work his liberty, hut still aggravated and
laboured the contrary, and gave directions to
the lieutenant of the Tower, to look surely to
him, and to keep hiiu close prisoner, and that
he should send to none of his friends, or they
to him, urging great matters against him.—
Sir Thomas Monson was often employed to
give directions to the Lieutenant therein ; which
was a most barbarous course to be so dealt

935]

STATE TRIALS, 13 James I. 1615.— Trials qf the Murderer*

[»

withal, only for a contempt •/ concluding, that
Overbury was a close prisoner to all his friends,
but open to all his enemies, such as Somerset
would have or send unto him.

Then tho Lord Chief Justice told Mrs. Tur-
ner, that she had the seven deadly sins : viz. a
whore, a bawd, a sorcerer, a witch, a papist, a
felon, and - a murderer, the daughter of the
devil Forman ; wishing her to repent, and to
become a servant of Jesus Christ, and to pray
to him to cast out of her those seven devils.

She desired the Lord Chief Justice to be
good unto her, saying, she was ever brought up
with the countess of Somerset, and had been
of a long time her servant, and knew not that
there was poison in any of those things sent to
•ir T. Overbury.

Then the Jury went forth, and not long after
returned, finding her Guilty. — Who being
asked, what she bad to say for herself why
Judgment should not be pronounced against
her? she only desired favour, but could not
speak any thing for weeping.

Tiien Judge Crook made another grave
Speech exhorting her to repentance, and to
prepare herself ready for death ; and that the
little time which should be assigned her to live,

she should not spend it either' in hope or in
imagination to get life, for that hope was hot
a witch. Upon conclusion of which Speech,
he gave Judgment, and told her she had had
a very honourable Trial, by such men, as be
had not seen for one of her rank and quality;
and so was delivered to the sheriffs.

Upon the Wednesday following, she was
brought from the sheriff's in a coach to New*
gate, and was there put into a cart; and can-
ing money often among the people as she went
she was carried to Tyburn, where she was exe-
cuted, and whither many men and women of
fashion came in coaches to see her die: la
whom she made a speech, desiring them not to
rejoice at her fall, but to take example by her;
she exhorting them to serve God, and abandon
pride, and afi other sins; relating her breediag
with toe countess of Somerset, having had do
other means to maintain her and her children,
but what came from the counters : and said
further, that when her hand wus once in this
business, she knew the revealing of it woatt
be her overthrow. The which, with other like
speeches, and great penitency there shewed,
moved the spectators to great pity and -'grief
for her. .

105. The Trial of Sir Jervis Elwes, knt. Lieutenant of the Tower,
at the Guildhall of London, the 16th of November, for the
Murder of Sir Thomas Overbury: 13 James L a. d. l6\5.

said earl writ two Letters to Rochester contain-
ing these words : ,

The Earl of Northampton's Letter to Ro-
chester.

TflE form of the Indictment was the malicious
aiding, comforting, and abetting of Weston in
the poisoning and murdering of Overbury ,
whereupon it was laid against him as follows ;•
1st, When Weston received the vial of poison
of two inches long, to give sir T. he having the
glass in one hand, and broth for sir T. in the
other hand, meeting the Lieutenant, asked him
thus, ' Sir, shall I give it him now ?' The Lieu-
tenant reproved him ; yet that night he gave it
him in his broth : Ergo, the Lieutenant knew
of the practice and poisoning of sir T. Over-
bury, ' et qui non prop nl sat injuriam cum pos-
sit/ infcit. Cicero. — After this was known to
be poison, yet he kept Weston still: he fa-
voured, countenanced, and graced him, and
one time sent him a cup of sack, and bid his
man till him, that he loved him as well as ever
he did : all this while he paid him no wages,
and as soon as Overbury died, Weston was re-
moved.— The couniess wrote a letter to tho
Lieutenant ; with the letter she sent poisoned
tarts to Overbury, and wine to the Lieutenant's
wife ; and bade him give the tarts to Overbury,
for there were letters in them, but bis wife and
children might drink the wine, for she was sure
there were no letters in it. — The earl of Nor-
•thimpton writ a letter to the Lieutenant con-
•cerning the imprisonment of Overbury; the

♦ Co. Inst. 49, 135.

" Sweet lord ; Think not I find pain in that
which gives me sweetest pleasure, which is any
thing that falls from your pen ; three things con-
cur to my exceeding joy in your worthy letters,
proof of your love, comfort in your words, and
judgment in your writing ; you may believe the
words of him that will rather die than flatter
you ; my heart is full of the love of you ; your
characters arc no more pain for me to peruse,
being as well acquainted with your band as my
own, the pain is no more than the cracking of
a nut for the sweet kernel, or my niece's pais,
in the silver-dropping stream of your pen.— —
[There the Lord Chief- Justice left off reading
tor the bawdiness of it ; then after in the Letter
followed} I spent two hours yesterday, prompt-
ing the Lieutenant, with cautions and considera-
tions ; observing with whom he is to deal, that
he might the better act his part, for the adven-
ture in which he dealeth. — IL No&thajiptov."

Another Letter to Rochester.

" Sweet lord; I cannot deliver unto yea
with what caution and consideration, &c. ao4
the Lieutenant looking to his business, which
concerns no more than text affords, that march*

99?]

STATE TRIALS, 13 James L 1615. — </ Sir Thonua Ocerbury.

[998

ad in lus affairs, I shall bold him discreet, and
love him better whilst I live, tor this his con-
clusion : For this Negro can no more change
Ills skin than a Leopard his spots. Henry
Northampton."

Another Letter to Rochester.
" Sweet lord ; Overbury l>eing viewed, tliere

in this plot, though the chambcilain knows not
of it, nor any one else. But Rochester's part I
shall much fear, until 1 6ee the event to be clearly
conveyed. And so he cou eluded his Utter.

Jervis Elwes.

The Answer of sir Jervis Eltves to the Points

proposed.

was found in bis arm an issue, mid on his belly | " My lord ; Before I answer to the matter of
twelve kernels likely to break to issue, each as : charge against me, let me remember your lord-
big as three-pence ; one issue on his back, with j ship of one speech which 1 learned from yoor
a tawny plaister on it ; this was strange and * mouth : 1 have heard you speak it at the coun-
ugly. lie stunk intolerably, in so much that cU-table, and yon hare delivered it at the assizes
be was cast into the cotlin with a loose sheet , in the country, That when a prisoner sUnds at
over him. God is gracious in cutting oft' ill in- j the bar for his life, comfortless, allowed no
stniments from off the factious crew : If he had counsel, but strong counsel against him, per-*
come forth, they would have made use of him. ; chance affrighted with the feor of death, his wife
Thus, sweet lord, wishing you all increase of and children to be cast forth ont of doors, and
happiness and honour, I end, Your lordship's | made to seek their bread ; you have always
more than any man, Henry Northampton." i pitied the cause of such a one : You have pro-
The Lieutenant writ a Letter * to the earl of ■ tested you had rather hang in bell for mercy to
Northampton, certifying him, That he under- such a one, than for judgment. — My lord, yoa
took sir T. Overbury according to his instruc- ' have not observed your own rule in my cause ;
tions: That as soon us he came to the place, sir I you have paraphrased upon every examination,
T. protested his innocency upon the bible; and i you have aggravated eveiy evidence, and ap-
then (quoth he) he asked me what they meant | plied it to iue, so that 1 s and clearly con-
to do with him ? I answered, ' They mean to demned before 1 be found guilty : If I be so
' refine you, that your pureuess may uppear a "
' little better/ After I walked with him in his
chamber, and advised him to give way to the
match between Rochester ana the countess ;

bat then he grew hot against your lordship and ■ will not tell a lye to gave my life, and 1 beseech
the countess of Suffolk, saying, ' If he were the j your lordship so to conceive of rue, move your

• countess of Suffolk's prisoner/ (as he thought ! charity towards me."

he was) ' then' (said he) ' let her know that I I Then desired he the court, that the heads of

* care as little to die as site to be cruel/ The ' the Accusations might be collected by the conn-
countess of Suffolk I find to be joined with you ' sel for the king, which were the same which

- j were mentioned before ; to which he severally

• The effect of tins letter is given more at answered, &c.
large, in an old book called" Truth brought to | " To the 6 ret, Shall I give it him now ? He
Light by Time, or the llifct. of the lirst 14 years answered, that when Weston aslved him the
of King James 1." p. 58, thus: question, he saw no poison in his hand, ami

vile a man us your lordship conceives me, I
were unworthy of any favour ; but I hope your
lordthip shall not find it. — So I will deny no-
thing that hath evidence of truth against me, I

" My special good lord ; Having undertook
my prisoner according to your instructions, after
logg silence, at standing betwixt liope and fear,
he takes his bible, und alter he had read upon
it, laid it by aud protested his innocency, after-
ward upon further conference concerning the
countess, he said that he had justified her al-
ready, and that he can do no more than what
ho had done already. But for myself, alas,
(quoth he) what will they do with me, I an-
swered, so reason | q. refine] you as you shall
make no question hereafter of your purcness.
Aad I left him iu some sense to work upon him ;
u I was going, he concluded, That in the
generality site was so worthy that she might be
a wife in particular for my lord of Rochester,
he would not say it, lest my lurd should con-
demn him for weighing his worth. At my next
coming to him, I found him, nut in sense, but in
fery, be let fly at you, but was respective to my
lord of Rochester whose part he took altogether;
I let the event, 1 desire it may be safely carries! .
what ray service may do in this or any thing
else, I will be faithful to your lordship, and so
I itst, Yours, Jervis Ye'lvis."

therefore, said he, in Weston's and mine exa-
mination, the question was, Shall 1 give it him
now ? not, Shall I give him this now ? for the re
as a great diifcrcnce between kttc and id in
matter of prevention. — But further, when Wes-
ton had told me that it was poi^m which he
meant to give, 1 reproved und beat him down
with God's judgment ; nay, I huirtblcd him so,
that upon his knees he thanked God and me,
and told me, that he and his had cause to bless
God for roe, for that I with-hehl him from doing
that act ; and it' vcu mil this comforting and
abetting, to terrify a man for hi * sins, and to
make him so conli.-ss his faults to God, and to
abhor and detect the act, then was I an abettor
and comforter or Weston.

u To the lernnd, after I had thus terrified
Weston with U* d's judgments, and saw him
cast d wn for his offc-orr ; I could do him no
better office t' -m of charity, to raise him up,
who was thiw t\ov i*, and therefore favoured
htm ; I shewed him kindnes*, I drunk to him, to
the intent 1 miyhr encourage the intentions of
his mind, wLioh I found tlicn resolved in ab-
horring the fact : and that I gave him I

039]

STATE TRIALS, 1 3 James I. 1(515.— Trials qf the Murderers

[940

wages, it is true, I took him from the commen-
dations of my lord of Northampton, and sir
Thomas Monson, whom I took to be my friends,
and thought they would commend no man to
be a keeper, which might any way endanger
me.

u To the third, I never knew any other mean-
ing to the countess's words in her letters, but
the bare literal meaning ; and sure (quoth he)
after I had received the tarts, and they had
stood a-while in my kitchen, I saw them so
black and foul, and of such strange colours, that
I did cause my cook to throw them away, and
to make other tarts and jellies for him.

" To the fourth,hesaid, the earl of Northamp-
ton's letter to me, was not any thing touching
the poisoning of Overbury, but for a close
restraint ; to the end, that Overbury might
agree to their purposes concerning the marriage
to be had between Itocliester and the countess :
if the earl of Northampton had any other plot
to take away his life, I was not any thing of his
council, or had knowledge therein.

" To the fifth, whereas it is said, I received
him according to my instructions, I meant none
other thing than I have delivered before, which
was concerning the closeness of his imprison-
ment."

But being asked what he meant by these
words ; * Rochester's part I shall greatly fear,
' ontil I see the event to be clearly carried ;' in
this, he sttiggered, and wavered much, and gave
his answer : " It was long since I wrote this
letter, and for the particular circumstances that
induce:! me to this speech, I cannot now call
to memory ; but sure 1 am, that at that time,
knowing myself to be innocent, I could the bet-
ter have satisfied my remembrance, so that 1
meant nothing the taking away of his life: but
because I was a stranger to Rochester, and had
heard and known of that great Icapue that was
between them; I might well think, suspect,
and fear, whether he would always counte-
nance these projects for his restraint/'

These were the Answers he made to bis Ac-
cusations, and after he had made many pro*
testations between God and his soul, of his in-
nocency of this malicious plotting and abetting
of Orerbury's death, he applied himself to the
Jury, and told them thus :

" I will prove unto you by many infallible
and unanswerable reasons, that I could not be
aider and com plotter with Weston in this poi-
soning. First, I made a free and voluntary
discovery of it myself, I was not compelled :
will any man imagine, that I would discover a
thing, whereof I could not clear myself ? Nature
is more kind than to be its own accuser. Be-
sides, that my clearness might more appear,
and remain in the world without any suspicion,
I proceeded and accused the murderer Weston :
it had been a senseless thing, and absurd in
me, if I had not thought myself clear, to have
accused him, who might have done as much for
me. Nay, Weston himself proved roe to be ao
honest man before the chancellor of the exche-
quer; for he confessed to him and other* being

present, that he thought that the Lieutenant
knew not of the poison : and in his examination
before the lord chief justice and Serjeant Crew,
being asked the meaning of these words, Shall I
give it him now ? he answers, that he thought
that those which had set him on work, had ac-

Juainted the Lieutenant with their plot. Al&o
was so confident in my own innocency, that
I told my lord chief justice, and my lord Zouch,
the way to make Weston confess, and to dis-
cover all ; which was by fair and gentle intreatv
of him, and so by this means they might search
the bottom of his -heart: in this the lord chief
justice witnessed with him. And after sirT.
Overbury was dead, Weston and Mrs. Turner
were sent to know of me whether I had any
inkling of the death of sir Thomas ? What need
they have made this question, if I had known
any thing thereof? Also that which I do know
concerning the poisoning of sir T. was after bis
death, by relation of Weston ; and here I ass
indicted as accessary before the fact, when I
knew nothing till after the fact."

After that he had confirmed these reasons by
sundry proofs and witnesses, he went further in
his own defence : " IV I be in the plot, the lord
"treasurer is, I have his letter to shew, in it : be
called me to his lodging, and said, The plots
you know them as well as I, the plots were
only to repair her honour : my wife hath the
letters from ray lord treasurer and Monson ;
for these plots 1 will run willingly to my death,
if circumstances be knit with any manner of
fact."

He proceeded further and told the lord chief
justice, that he spake not this to justify himself,
so that no blemish or stain might cleave unto
him : " for," said he, " this visitation is sent
me from God ; and whether I live or die, it is
the happiest affliction to my soul, that I ever
received, I have laid open my whole heart for
blood-guiltiness: I have not repented me other
than of errors of my judgment, in not detect-
ing what I suspected, and yet I do ask God for-
giveness daily for lesser sins; but of this I know
no other, but the gross error of my judgment,
in not preventing it, when I saw such intend-
ment and imagination against him."

Then he put to my lord chief justice this
case : " If one that knoweth not of any plot
to poison a man, but only suspectcth, is no
actor or contriver himself, only imagineth such
a thing, Whether such a one be accessary to
the murder ; for the words of the indictment
are, abetting and comforting with malice : Now
if there be any man that charges me expressly,
or in direct terms, that I was an abettor, or if
the court sliall think in this case which I have
put that such a concealing without malice, is
an abetting, I refuse not to die, I am guilty."
This was the sum of his speech.

Then the Lord Chief Justice replied ; That to
his knowledge, lie spake no more concerning
the evidence than he could in conscience
justify, which was only to express the evi-
dence of things, and not wresting any thine
in prejudice of his life. But further he teal

(

Ml] STATE TRIALS, 13 James L 1015.— qf&r Thomas (hrrbury. [94:

him, That two days before sir T. Over bury | say that the toothless maid, trusty Margaret

, _ u wished his man to bring his best suit
«f h*<i Rings to hang bis chamber, which you ' Turner'
knew were your tees. And after lie told him, tli
that his accusation of the lord " ~ "

acquainted with the poise:

Stephen ; so also Mrs. Home,

I own hand-maid.— He soirh,

On the inarriage-day of the countess with

taken, nnd in all tlie exact speech be
work for the finding out of lb '

he had Somerset she sent him 90'. by Mrs
ould I aud f ■ ■ ■ '

that honourable gentleman any way touch- , urged and haunted two hundred several tt
la conclusion he told him, It is not your at least, by the countess to do it against his
" ' conscience. He saith, she was able to bewitch
any man ; and then be wrought the love be-
tween Rochester and her ; and tfaat he had 13
several letters from her to prosecute it, and
have 900*. to continue their lore? until

deep protestations, our your appealing to God,
that can sway a Jury from their evidence, which
is not vet answered unto. But to leave you
without excuse, ;uid to make the matter as
clear as maybe, here is the Confession of
Franklin, (which he then drew out ot'hisbosom) , the marriage; and that all things

saying, This poor man, not knowing sir Jervis ' ''■■' ,:-' J — ''

should come to his trial, this morning he came
unto me ut tiva o'clock, and told me, That he
was much troubled in bis conscience, and could
sua rest all that night until he had made his
confession; and it is such n one (these were
his words) as the eye of England never sew, nor
the ear of Christendom never heard.

The CoSFCSsios of James Franklin, the 16th
of Nov. 1615.
" Mas. Turner came to me from the countess,
and wished me from lier to get the strangest
poison I could for sir T.Overbuir. Accord-
ingly I bought seven, viz. aquafortis, white
arsenick, mercury, powder of diamonds, lapis
costitui, great spiders, and canthnrides : All
these were eiven to sir T. Ovcrbury at several
times. And further confessetb, that the Lieu-
tanant knew of these poisons; for that ap-
peared, said he, by many letters which bo writ
to the countess of Essex, which I saw, and
thereby knew that he knew of this matter;
One ol these letters I read lor the countess, be-
cause she could not read it herself, in which
the Lieutenant used this speech; ' Madam, the
' scab is like the fox, the- more he is cursed,
' the better he fureth ;' and many other
speeches. Sir T. never eat white salt, but
there was white arsenick put into it : Once be
desired pig, and Mrs. Turner put into it lapis
costitus. — The white powder that was sent to
sirT. in a letter he knew to be white arsenick.
— At another time he had two partridges sent
him front the court ; and water and onions be-
bsgtLe sauce, Mrs. Turner put in cantharides
instead of pepper ; so that t litre was scarce
•o* thing that be did eat, but there whs some
poison mixed. Tor these poisons the countess
sent me rewards -. She sent many times gold by
Mrs, Turner.— Site afterwards wrote unto me
to buy her more poisons. 1 went unto her,
and told her 1 was weary of it; and 1 besought
her upon my knees, that she would nse me no
■now in those matters i But the importuned
me, bad me go, and enticed me with fair
speeches and rewards ; su she overcame me,
and did bewitch me. — The cause of this poi-

ssth.ee.

■s told h

■r T. Overbury would pry s
suit, as he would put tliani do*

the first discovery."

Those were all the materials in Franklin's
Confession. To this sir Jer'vis Elwes knew not
what to answer, or to make of liis own letters.

Then presently the Jury departed from the
bar, and slftrtly after returned, and found biui
guilty; and the Lord Chief Justice gave judg-
ment of death against him.

On Monday the 90th of November, 1615,
he was executed at Toner-hill, upon a gibbet
there set of purpose, about six o'clock in the
morning. He came on foot to the gibbet
from Sheriff Goare's house, between Dr. Winn-
ing and Dr. Felton, two o( his majesty's chap-
lains; and coming in the ladder's -foot, lie
talked a word or two to the etecntionPr. —
Then he went up the ladder four or live steps
die executioner sitting uvcf his licud, upon rln-
top of the gibbet i Sir Jervis finding the laddt-i
to stand too upright for his rase, spake to have
it amended, which forthwith, he coming down,
was douc, being fastened in the gnnmil; ami
then he went up ngaiu six FttejK, where after a
whiie, sitting easily, he said :

•' Nobles, right worshipful, ujid others, I inn
here come, as well to shew, es plain, and un-
fold that which, at the nine of my arraignment,
so many of you us were present expected ; ni
also to shew that then 1 perceived 1 bail lost
the goud urn i n ui i of many, in standing «« lon»
upon my muoruncy, which was my fault, I
collies*, lioping now to recover the same, si..!
your good 'charitable opinions of me; which
fault I then saw nut, buutc blinded with mine
errors which made mc account it no sin.--Hut
since my condemnation, by menus and help ot
tliese two geiitleuien beie present (thu two
Doctors) 1 was persuaded nf the urcatnos ol'
my sin, aud that it was so much the greater, br
how much the mure 1 did conceal it; which
by Cod's mercy I perceiving, consulted ant
with flesh and blood, but thought, in this inv
coudemuatiou, my best way for lit* soul'i
health, to reveal to the oiumpotent and iJI-st-
iug Cod, list; most secret mid inward intention*
and thoughts of my deceitful heart, not oure
susjieetiiii; the pains or dispraises of the world,
which 1 regard not at all. — It may 1m sum.-
will say,tliat this place was most ru'dii tor im
executivn, nppuinied to lenity and daunt in

943] STATE TRIALS, 13 James I

so much the mure ; but alas ! I fear not death,
pl;ice? nor any such like thing, for I account it
the king's and council's special favour that I
die here ; for that I requesting tlie same, it
was granted ; whereby I see now this Tower,
wherein of late I have been called to the state
business, and still might, if I had perfi )rmed a
more loyal service to my king and country than
I did. — Next, that I was not appointed to Ty-
burn, a place of more public reproach than
now I am brought, being worthy to die by due
and lawful justice, in prosecuting this bloody
and enormous act against a kind gentleman,
who deserved not ill at my hands, nor at any
man's else for aught I know.— But were it I
had not trusted him, who was a most periidious
wretch, I had not fallen into this same ; which
may warn all here present to take heed whom
they trust in a bad matter, aud to admonish
you that are trusted never to break houe»t and
just fidelity. — I was by divers tricks drawn into
this action, which I received from the earl of
Northampton, sir Thomas Monson, and none
other : but had I remembered the 119th Psul.
115th verse, and said with that holy prophet,
4 Away from me, ye wicked, for I will keep the
4 commandments of my God ;' then had I re-
fused such like tricks. Alas! now too late;
there was my fault, that 1 did not refuse them,
and cast myself upon God's pro\idence, with-
out uny dependency on man, though never so
honourable. Was ever any deceived that did
trust in God ? There was never any. — There-
fore 1 admonish you all ; let none, how honour-
able soever he he, or the king himself, move
you to any thing not agreeable to God's word,
do it not, reject it; for this was my fault, that
I had not at the first opened tins plot to his ma-
jesty, who no doubt would most justly and righ-
teously have punished the same. — You nobles,
worshipful, and others, let my example teach
you thus much, That you prophanc not the
holy sabbath of the Lord, nor his good crea-
tures, nor that you turn, by a lascivious course,
nights into days aud d-iys into night*, as I have ;
done ; and tint in serving God, you must not '
only read the scriptures, but join practire ■
therewith : for what good else will the same i
etfect, if the heart he foul, bloody, ;ind impure ? '
— Some here knew mv forwardness therein ; ■
but 1 plead not innoccnev that way, hut cast it j
off, and confess, that of this j»teat asscmhly I i
nm the most wretched sinuer. — You expect !
speeches from me of some concealed matters, |
aud upon some oi' my «>petvhes used at the !
closing up of my arruii;iitmMU : hut I stand here I
* loco pcccatoris, non oratorio :' yoi I will siiew
you th:tt I have opened to mv Lord I'bitrf Juj- I
tice of Kngland, sinee my arraignment, that
which to the uttermost of my power 1 was able
to verify, upon which then 1 took the body and
blood of Jebus Christ ; und in further testimony
thereof, 1 will n>>w teal it wirh my last and
dearest breath.

** Nobles and others, to see your faces it re-
joiccth me, whereby yr.u mainuSt your love in
granting my request, to be wirntswi of my

1615.— Triab qf the Munkrm

[M4

death ; I see a number of my friends, there,
there, there, [pointing as he spake] whom, out
of their loves, i entreat to beseech God to
strengthen me in death; though ignominious to
some, yet to me, a hitter cup, mingled to me
with God's mercy, a special favour tliis way to
call me home, whereas he might have taken
away my life by shooting the midge, or some
fall, or otherwise ; and then this un repented
sin, which I accounted no sin (such was my
blindness) had been damnation to me ; for God
is just, aud (he unrepeuted sinner shall have no
salvation. — There is none of you present here,
that knows how or in what sort lie shall die, k
may be in his bed, it may bo otherwise (God
knows) ; 1 protest before you .all, I never came
over this hill, in the chiefest of all my proa pa-
rity, with more joy than now I have at this pre-
sent; fori now know that presently 1 shall be-
hold the glorious face and sight of my Creator.
— Take heed, and let my example incite you to
serve God truly and uprightly, better than i
have done, lest a shameful death overtake you,
as it doth me, who am unworthy of my parents
care in bringing me up.- It may be some will
say 1 have a flinty heart, because I shed no
tears ; my heart is flesh as any others, and I
am as faint-hearted to look death in the face
as any others : but because my use hath been
not to shed tears, I cannot now easily, except
it be for the loss of some great friend ; albeit
uow my heart beginneth to melt within me,
being wounded [with that the tears stood in his
eyes J to see the faces of some there present,
whom I most earnestly love, and now must de-
part from with sliame : for worldly regard I re-
spect not, for well Mr. Sheriff knows, that (to
shame this my sinful flesh the more) 1 wish (it
he had pleased; to have been brought from
Westminster through the city, to have warned
all spectators how they should not escape with-
out judgment for blood ; for God is just. — I
h;ul almost forgotten to shew you a strange
thing, which God brought to my memory the
Inst night, which was this : I confess I nave
been a great gamester, and especially on the
other side, have wasted and played many sums
of money, which exhausted a great part of my
mean*; winch I perceiving, vowed scriou&Iy
(not slightly or unadvisedly) to the Lord in my
vows and prayers ' J*ord, let me be hanged if
* ever I play any more !' which not long after
is most justly come upon me, whereof you are
ail eyo-wit ucocs, because a thousand times
since 1 brake thin my vow."

Then he espied one sir Maximilian Dalbson
sim: ding near the gibbet on horseback, and said
umo him : " You know, sir Maximilinn, wh.it
fuming wo have had, and how we have turned
days into night*, and flights into days ; I pray
you in time to leave it oil', and dishonour God
no more by breaking his sabhatns, for lie bath
always enough to punish, as you now see me,
who little thought to die thus.

To which sir Maximilian answered him;
" sir ,J«\rvis, I am much urieved for you, and I
sl.nl 1 never turret what you have here said;*

945]

STATE TRIALS, 13 James I. 1013.— qf Sir Thonm Overbuy.

[046

wnereuntosir Jervis said, " Look to it, do then." I
•—Further, be continued his speech, saying,
u Let no man boast of the abilities and gifts of ;
nature, which God giveth him ; for therein I j
displeased God, being transported with over-
much pride of my pen ; which obsequious quill
of mine procured my just overthrow, upon the
knitting of my Lord Chief Justice's speech at
my arraignment, by reason of two or three pas- |
sages at the bottom of my letter, subscribed
.with my own hand, which I utterly had forgot-
ten, because I felt not any sin ; which when I
heard,' I saw none other but the finger of God
could thus point to this fact; • by this means I
do protest before God, and confess before you
all, that I was so far overtaken by this bloody
met, that for satisfaction of the same, I willingly
yield my dearest blood, to the shame of this my
carcass, not being so much grieved for the same
at for others, that I wish I had hanged in chains
nerpetoally, so that I had revealed at first the
oeiaous plot. — Then should I have saved the
lives of some already dead, some in the Tower,
.some ia the city, some over seas ; so should 1
have prevented many from being widows, some
from being fatherless, and some from being
childless, among whom mine own wife for one,
and eight fatherless children of mine, which I
leave now behind me, and God knows how
many be guilty of this fact, and when it wilUbe
ended. — The Lord Chief Justice upon closing
op of my speeches at my arraignment, said I
was an Anabaptist : I would to God I were as
dear from all other sins, as from that, for I al-
ways detested that condition.— As for my wife
some say she is a papist ; but true it is, she
comes so short from a sincere protectant, (I
mean In that respect) that when she is among
papists she cannot wtll forbear them."

Then he spake to rhe SheritY, saying, " If it
may be permitted without offence, 1 have some-
what to say, and that is this, Is it lawful for any
one here to demand of me any questions?" To
which the Sheriff answered, " It is not lawful;

• His Prayer is thus given in " Truth
brought to Light,*' p. 90. " O Eternal, Omni-
potent and Omniscient God, the Creator of
heaven and earth, and of me a most miserable
and horrible wretch, by reason of iny un measur-
able sins and transgressions, whereof 1 am
wholly guilty, take pity on me, who have so
many ponderous sins, tint without especial
favour and mercy, tin y will be ready to press
me into perpetual destruction ; thy full and
free pardon in Jesus Christ, f humbly crave,
with this assurance, that immediately my soul
shall be translated hence into those inestimable
joys, which the heart of man is unable to con-
ceive, the tongue to utter, or the ear to hear.
Hear then, Lord, the petition of me, a most
intolerable wretch, according to thy promise
made to the repentant dinner ; my sins yet un-
known and unrepented, which are mv secret
sins, Lord, call not to account ; disburthen me,
O Lord, of my unknown sins, I desire to give a
true sigh for them all ; my sins of youth and

VOL. II.

wherefore, good sir Jervis," (quoth he) " for-
bear." Sir Jervis thereunto said, with dou-
bling his words, " It is enough, it is enough."
— " I have here," quoth he, " one that holdetb
my cloak, may I bestow sonie* hat on him ?"
The Sheriff answered, " That you may, sir ,'9
whereupon he called the young man to him by
his name, who stood waiting at the ladders
foot, and gave him out of his pocket some
pieces of gold, or silver, " Here, take this,
spend it;" which he with bitter tears thank-
fully accepted. Dr. Why ting and Dr. Felton
strained courtesy, which of them should begin a
publick prayer, fitting for this party's condi-
tion ; one of them willed the other : but at last
Dr. YVhytmg said, " If you, sir Jervis, can
perforin it yourself, you of all men are (he fittest
to do it, with efficacy both of soul and spirt :"
whereupon he said, " I §rwll do my he>t then;
but my hearers, I crave your charitable con-
struction, if with half words, and imperfect
speeches, 1 chatter like a crane/'*

His prayer being ended, he a*ked if he might
pray privately; the doctor said, " Yes, sir."
—Then made he a short prayer to himself ;
with his face covered ; and alter he uncovered
it, and said, ** Now I have prayed, now I must
pay, I mean, do the last office to justice."
With that Dr. Whyting said, * Sir Jervis, you
may stand one step lower on the ladder : "To
whom the sheriff answered, " It is better for
hiin, Mr. Doctor, to be where he is." " Stay,"
quoth the doctor to the executioner, " for he
hath given a watch-word, he is iu private prayer
again." ,f Yea," quoth he, '• 1 know that, for
he hath given me a watch-word, when I shall
perform my orfice to hin».v — He uncov* red his
face after his second short prayer, and first
took his leave df ail the a>sembly, saying, with
a chearful voice and countenance, " I pray
you pray for me, who shall never more behold
your faces." Then he said" with a great fer-
vency of spirit, " Lord, I desiie ut ihy hands
thin bitter cup >f death, as the patient reciiveth

riper years, Lord call not to account j thou,

0 Lord, kuowest how many tney -ire : let the
misty clouds of all my sins whatsoever, be so
scattered by the bright beams of thy uurcies to
mc in Christ Jeftu*, thai those my wc ak and
poor prayers may be available in thy tight : this
comfort, this 1 have, that I am thine, lor were

1 not thine, then out of the root of ine could
not the buds of repentance appear; by which I
know thou lovest me : it is not I, but thou, L<»rd,
hast drawn ine to thee, tor thine own meicies
sake, on which mercy and thy promises made
to the true repentant sinner, once again I rely,
for if thou killed me by ti>h> or any other igno-
minious death, yet will I trust m thee, and
crate ihiue us-isiance: protect my soul from
that great adversary of uvne, Satan, who with
pale death and the infirmities or the thsh, do
bandou them as balU together, then especially
at I lie last gasp, in which great conflict, Lord,
strengthen me, that they may not overcome,
but be overcome. Amen.

3 F

947]

STATE TRIALS, 13 James I. 1615.— Trials qf the Murderer*

[948

a bitter potion, not once demanding what is in
the cup, but takes and drinks it off, be it never
so bitter." — As soon then as be had audibly
said, " Lord Jesus, receive my soul ;" which,
it seems, was the executioner's watch-word, he
presently turned him off the ladder ; and being
off, the executioner's man caught hold of one of
bis feet, his own man on the other foot, whereby
they suddenly weighed his life ; where hanging
a small distance of time, his body not once
stirred, only his hands a little stirred and moved,
being tied with a little black ribband, which a

little before he had reached to the executioner,
putting up his hands to him for thut purpose.
All which being ended, both corpse and high
gibbet were from thence removed.*

* " My Lord (William} of Pembroke did a
most noble act, like himself, for the king having
given him all sir Gervas Elwes's estate, which
came to above 1000/. per ann. he freely be-
stowed it on the widow and her children.*
Howell to his father, March 1st, 1618. Letter*
B. !.§!.§ 2.

106. The Trial of James Franklin, at the King's Bench, 27th of
November, for the Murder of Sir Thomas Overbury : jyiicL
13 James I., a. d. 1615.

AFTER he had put himself for his trial upon
the country, a Jury of esquires and gentlemen
was impannelled to pass upon his life. Then
Weston's Indictment was read, and Franklin
accused as accessary to the poisoning of sir T.
Overbury, and in his Examination formerly
taken were these words : *

James Franklin's Confession.

He confesseth, That in a house near to
Doctors-Commons, Mrs. Turner did first come
unto him about the poisoning of sir T. Overbury,
and prayed him to provide that which should
not kill a man presently, hut lie in his body
for a certain time, wherewith he might languish
away by little and little ; at the same time she
gave him four angels, wherewith he bought a
water called aqua furtis, and sent it to Mrs.
Turner, who, to try the operation thereof, gave
it to a cat; wherewith the cat languished, and
pitifully cried for the space of two days, and
then died.

Afterwards Mrs. Turner sent for Franklin to
come to the countess, who told him, that aqua
ibrtis was too violent a water ; but what think
you (quoth she) of white arsenick ? He told
her, it was too violent. What say you (quoth
the) to powder of diamonds? He answers, I
know not the nature of that. She said, then
he was a fool ; and gave him pieces of gold,
and bade him buy some of that powder for her.
Franklin demands of the countess, what was
the reason she would poison sirT. Overbury?
She told him, He would pry so far into their
estate, that he would overthrow them all.
£^A little before sir T. Overbury's death, the
countess sent fur Franklin, and shewed him a
letter written from the lord of Rochester,
wherein he read these words: "I marvel at
these delays, that the business is not vet dis-
patched." Whereby Franklin thinketh in his
conscience, was meant the poisoning of sir T.
Overbury. And in another letter from the
lord of Rochester was written that sir Thomas

* Sea this Confession- in the Trial of air Jcrvis
£lvtes»p.9il.

was to come out of the Tower within two days,
and they all should be undone : whereupon the
countess sent for Weston, and was very angry
with him that he had not dispatched sir T.
Overbury. Weston told her, that he had gives
him a thing that would have killed twenty map

Also a fortnight after Weston's apprehension,
the countess sent for Franklin to her house at
St. James's park, where he found the earl and
the countess walking together ; and as soon as
he came, the earl went apart into a chamber.
Then she told him, Weston had been sent for
by a puisuivant, and had confessed all, and we
shall all be hanged : but on your life (quoth
she) do not you confess that you brought any
poison to me, or to Mrs. Turner : for if you do,
you shall be hanged, for I will not hang for
you ; and, says Mrs. Turner, I will not hang
for you both. The countess told him, That
the lord who was to examine him would pro*
mUe him a pardon to confess; but believe him
not, for they will hang thee when all is done.
Weston conies to Franklin's house, and told
him, Now the countess's turn is served, she
used him unkindly, and they should be poison-
ed, and that two were set o( purpose to poison
him.

Franklin having confessed his former Ex-
aminations under his own hand, being per-
mitted to speak for himself, said, That at the
entreaty of the countess and Mrs. Turner, be
did buy these poison's, but protested his igno-
rance what they meant to do with them ; and
for the rest, he referred himself to the consci-
ence of the Jury : who went from the bar, and
within a quarter of an hour, did return, and
pronounced him Guilty.

Then Judge Crook, after a brief exhortation,
gave the sentence of death upon him.

The Lord Chief Justice made a short ex-
hortation also, with addition of these words i
That knowing us much as he knew, if this had
not been found out, neither the court, cigr, nor
any particular family had escaped the malice of
this wicked cruelty.

He was afterwards executed according to the
Sentence.

M»]

STATE TRIALS, 13 James I. 10l5.-7</Str Tkomt Overhny.

[950

107. The Arraignment of Sir Thomas Monson, knt. at the Guild-
hall of London, 4th December, for the Murder of Sir Thomas
Overbury: 12 James I. a. v. 1615.

yr HEN he came to the bur, he made a mo-
tion to the Lord Chief Justice ; That, whereas
he had written unto his lordship to ask the
lord treasurer two questions, which my lord
would do ; he desired then an answer, and that
sir Robert Cotton might be present.

After the questions were read, he was in-
dicted for conspiring with Weston to poison sir
T. Overbury ; to which he pleaded, Not Guilty,
and would be tried by God and his country.

The Lord Chief Justice broke up the pro-
ceedings, and made a speech to this effect, viz.
He saw a great assembly, and though it had
been shewed them often, yet it could not be
said too often, that the city was much bound to
God, and to his deputy on earth the king, his
toaster, for their great deliverance, and exact

«ittice;'for God was always just; and for.the
sing, though they were never so high in place,
nor so dear to him, though his own creatures,
jet jbjs justice i» dearer to him, for which we
are upon our knees to give him thanks ; as also
for so mild a proceeding in so great an affair :
lor neither the great man's house in the Tower,
nor his lady's house nor this prisoner's house
(to my knowledge) have been searched, neither
hath this prisoner been committed to the sheriff,
bat to an alderman, a man who of all others
might be most kind to him ; for, as I take it
lest I should be mistaken, sir Francis Anderson
married sir Stephen Some's daughter, and sir
Thomas Monson married sir Francis Ander-
son's sister ; I never knew the like favour, nor
do I like it so well, but do declare it as a gentle

froceeding from the king. For other things,
dare not discover secrets ; but though there
was no house searched, yet such letters were
produced, which make our deliverance as great,
as any that happened to the children of Israel.
For Weston and Mrs. Turner, they died peni-
tently, as is worthy to be whiten in letters of
fold ; and for the Lieutenant, though with great
imprecations, and a high hand he denied, yet
for the great glory of the king's justice, he died
most penitently ami resolutely : this is spoken
to the praise of God that hath crowned these
jost proceedings, though not having need of it,
" Juctitia coufirmata non eset autboritate ;"
wherein we may see the great hand of God ;
for that morning the Lieutenant was arraigned,
Franklin came to me as one afflicted in consci-
ence, not knowing of his arraignment, with
evidence, against him : which being delivered
to the Jury, one of them heard him say, " Then
Lord have mercy on me/' But for this present,
u Non est cuuetutio longa de vita hominis:"
therefore lie must be conveyed to tire Tower as
a safer place, till further order be taken. — Then
the Lord Chief Jut tice addressed his speech to
' sir Thomas Monson, saying, Whereas you name
mv Lorji-Treasurcr, every man's fame is dear

unto him, and he hath ever been honourable,
you shall hear what he hath answered to my
Letter. — u After my hearty commendations, I
have heard that sir Thomas Monson thinks I
can clear him, but I know nothing of him to
accuse or excuse him ; but I hope he is not
guilty of .so foul a crime." — You hear (quoth
be) that he will neither accuse you, nor excuse
you.

Monson. I do not accuse the Lord-Trea-
surer, nor calumniate him, for I know he is
very honourable, but I desire to have an an-
swer to my two questions.

L. C. J. You shall hear more of that when
the time serveth ; do you as a Christian, and as
Joshua bad Achan, " My son, acknowledge
tby sin, and give glory to God."

Monson. . If I be guilty, I renounce the king's
mercy and God's ; I am innocent.

L. C. J. There is more against you than
you know of.

Monson. If I be guilty, it is of that I know
not.

L. C. J. You are popish, that pulpit was
the pulpit where Garnet died, and tlie Lieute-
nant as firmly ; I am not superstitions, but we
will, have another pulpit.

Dodtridgt. It is an atheist's word to re-
nounce God's mercy; you must think the
change of your lodging means somewhat.

Hyde. I hare looked into this business, and
I protest, my lord, lie is as guilty as the guiltiest.

Monson. There was never man more inno»
cent than I ; in this I will die innocent.

After this speech, certain yeomen of his ma-
jesty's guanl, attending for that purpose, con-
ducted him to the Tower, where between the
yeomen and the warders, there was some con-
tention about his entertainment.

The Lord Chief Justice having at this Trial
let drop some insinuations * that Ovcrbury's

* See the passage in Weldon cited in the note
to the Earl of Somerset's Case, p. 966. Wilson
says, " Sir Tho. Monson, another of the coun-
tess's agents in this poisoning contrivance, had
past one day's trial at Guildhall. But the lord
chief justice Coke, in his rhetorical flourishes at
his arraignment, vented some expressions (which
he either deduced from Northampton's assuring
the Lieutenant of the Tower, that the making
away of sir T. Overbury would be acceptable
to the king ; or from some other secret hint re-
ceived) as if he could discover more than the
death of a private person ; intimating, though
not plainly, that Overbury's untimely remove
had something in it of retaliation, as if he had
been guilty of the same crime against prince
Henry ; blessing himself with admiration at the
horror of such actions. In which' be flew so
high a pitch, that he was taken down by a

»51]

STATE TRIALS, 14 James I. I6NJ_ Trial* <fd* Mtrdercn

[m

death had somewhat in it of retaliation, as ifhe
had been guilty of the »ame crime against

court lure; sir Thomas Monson's trial laid
aside, and he soon afttr set at liberty ; and the
lord chief justice's wings were dipt lor it ever
after."

prince Henry, sir Thomas Monson's Trial was
laid aside, and himself soon after set at liberty,
and the lord chief justice was rebuked for his
indiscretion, and before the next year expired,
removed from his post.*

* Bacou's Works, to). 1. p. 87.

108. The Trial of the Lady Frances Countess of Somerset,* the
24th of May, for the Murder of Sir Thomas Overbury:
14 James I. a. d. 1616.

The Summons of the Peers to the Trial.

AFTER our hearty commendations to your
lordship ; whereas the king's majesty has re-
solved, that the earl of Somerset, and the coun-
tess his wn'e, lately indicted of felony, for the
murder and poisoning of sir ThomusOterbury,
then his mHJeaty's prisoner in the Tower, shall
now receive their lawful and public Trial, by
their peers, immediately af.er the end o( this
present Easter te.m; at the Trial of which
noble personages your lordship's presence, as
being a peer of the realm, and ->ne of approved
wisdom and integrity, is requisite to puss upon
them : These are to let your lordship under-
stand, that his majesty's pleasure is, and com-
mandeth by these our Letters, that your lord-

* " In the next place comes the countess to
her Trial, at whose Arraignment, as also at Mn.
Turner's before, were shewed many pictures,
puppets, with some exorcism and magic spells,
which made them appear more odious as being
known to converse with witches and wizards,
and amongst the tricks Forman's book was shew-
ed ; this Forman was a fellow dwelt in Lam-
beth, a very silly fellow, yet had wit enough to
cheat ladies and other women by pretending
skill in telling their fortunes. As whether they
should bury their husbands, and what second
huslj.tuoS they should have, and whether they
should enjoy their loves, or whether maids should
get husbands, or enjoy their servants to them-
selves without corrivnl* ; hut before he would
tell any thing thry must write their names to
his alphabetical book, with their own hand-
writing. By tins trick he k< pt rh< m in awe if
they should complain >>f his abusing them; as
in truti) be did nothing else; besides it was be-
lie\ ed s- -me meetings were at his house, and that
the ait of bawd was more l>eneficial to him than
tictt of a conjuror, and that he was a better
arti»r in the one than in the other, and that you
m y know his skill, he was himself a cuckold;
havm«_ a very pretty wench to his wife, winch
wouIm h.iv, she did it to try his skill, hut it
fared with him hs with astrologers, that cannot
foresee their own destiny. 1 well remember there
was much mirth ni.de in the court upon the
shewing this hook, for it was report* d the first
leaf my lord Coke lighted on, he found his own
wife's name/' Sir A nthony Weldon, Court and
Character of king James, p. 111.

ship make your repair to the city of London, by
the 1 1th day of the month of May following,
being some few days before the intended Trial;
at which time your lordship shall understand
more of his majesty's pleasure. So not doubl-
ing of your lordship's care to observe bis ma-
jesty's directions, we commit you to God.— Your
lordship's very loving friend, G. Cant. ; T. Elles-
mere, Cane. ; Fenton ; E. Wat ton ; Tho. Lake;
Lord Darcy, of the South; C. Edmunds; E.
Worcester ; Lenox ; P. Herbert; Ralph Win-
wood; FulkeGrcvvl; Jul. Cesar.

From Whitehall this €4 th April 1616.

The Names of the Peers.

Earl of Worcester, Lord Privy-Seal.— Eari
of Pembroke, Lord Chamberlain. — The Earls
of Rutland, Sussex, Montgomery, and Hert-
ford— Lord Vise, lisle. — Lord Zouch, Warden
of the Cinque Ports. — Lord Willoughby of
Ereshy. — Lord Delaware. — Lord Daeres, of
the South. — Lord Mnunteagle ; who being sick,
went away before judgment.— Lord Went-
worth. — Lord Rich. — Lord Willoughby of Par-
ham.— Lord Hunsdon. — Lord Russel ; the se-
cond day was not there. — Lord Compton.—
Lord Norris. — Lord Gerrard. — Lord Caven-
dish.— Lord Dormer.

Thomas lord Ellesmere, Chancellor of Eng-
land, lord higli-steward hac vice.

His Assistants in tike Commission there preseot.

Sir Edw. Coke, L. C. Justice of England.—
Sir H. Hubbart, L. C. Justice of the Common-
Pleas. — Sir L. Tanfield, L. C. Baron of the
Exchequer. — Judge Alt ham, one of the Barons
of the Exchequer. — Judge Crooke, one of the
Judges of the King's- Bench. — Judge Doderidge,
one of the Judges of the King's- Bench. — Judge
Houghton, one of the Judges of the KiogV
Bench. — Judge Nicholls, one of the Judges of
the Common-Pleas.

The Counsel that were there the first day.

Sir F. Bacon, the king's attorney-general ;
serj. Montague; serj. Crew; sir Henry Yel-
verton, the king's solicitor ; Francis Moor, the
queen's serjeant ; sir Lawrence Hyde, the

Sueen's attorney ; Mosley, attorney of the
utchy ; sir John Davis, the king's serjeant;
Mr. Walter, the prince's attorney ; Mr. Finch,
keeper of the records of attainders.
More the second day.— -Serj. Tho. Moor; •erj.
Finch.

«5] STATE TRIALS, 14 James I. 1616.— tfSir Thomai Overbuy. [954

The peers above-named were all that ftp*
peared at any time at the trial, though there
were six others summoned, but why they ab-
sented themselves is not known ; and those
were, the duke of Lenox, lord steward of the
houshold ; earl of Huntingdon ; lord Darcy of
Menell ; lord Eure ; lord Hunsdon ; lord
Darcy of C niche;

The Form of their Sitting, and their Cere-
monies.

Wheo my Lord Chancellor, who for this
time was High-Steward of England, came into
the court, there came before him six Serjeants
at arms, with their maces; sir Geo. Coppin
with his patent ; sir Rd. Coningsby with his
white staff; Mr. Manwaring with the great
seal ; he himself, at the upper end of the
court, sitting under a cloth of estate ; on both
hands of him the peers, under them the
judges; at the farther end the king's counsel,
below the judges ; on- one 6ide Finch, keeper
of the records of attainders ; the clerk of the
crown and his deputy, in the midst of the court,
the serjeant-crier standing by him ; sir Rd.
Coningsby, sir Geo. Coppin, the seal-bearer,
&c. at my Lord Steward's feet. The Prisoner
at the Bar behind the king's counsel ; the
Lieutenant of the Tower in a little place ad-
joining to the Bar.

All being silent, sir Geo. Coppin rises and
delivers the patent to the Lord High Steward,
upon his knee; he receives it and kisses it, then
redelivers it to Mr. Fenshaw, who takes it
kneeling. Then the serjeaut-crier makes a
proclamation in the Lord High-Steward's name,
to keep silence; then Mr. Fenshaw reads the
commission/ which bears date the 10th of
May : then there is another O-yes, to certify
my Lord Steward, whether Weston were con-
victed as principal, for the murder of sir T.
Overbory. Then the I/)rd Chief Justice deli-
vers af Schedule indorsed with a Certificate of
four judges of the KingVBench, and others
the Commissioners. This Fenshaw, turning to
my Lord Steward, reads. A third O-yes, for
certifying of other indictments : my lord Coke
delivers another schedule indorsed with the
Certificate of ray lady Somerset's indictment ;
which Fenshaw, as before, read. A fourth
O-yes, for Walter Lee, serjeant at arms, to
return the Precept for the peers of Frances
countess of Somerset ; which accordingly, after
his three reverences to the Lord High-Steward,
he delivered to Mr. Fenshaw: he reads the
indorsement. A fifth O-yes, to call the lords
summoned by the command of the Lord High-
Steward, to answer to their names, which they
accordingly did, beginning at the first ; and as
every one was named they put off their hats,
and stood up till the next was named. A sixth
O-ye* to the Lieutenant of the Tower, to return
his Precept, and bring the Prisoner to the Bar ;
^ "™""^ "^^^^"-" ' — — — ~^"— "-^^— ^ — ^—

• See the Commission in Rym. Foed. vol. xvi.
p. 781.
t 3 Co. Inst. 135, 136.

which he did, and gave his Precept to theses
jeant, who gave it to Mr. Fenshaw, and he, as
before, read the indorsement. The Prisoner
made three reverences to his grace and the
peers; she was in black tainmel, a cypress
chaperon, a cobweb lawn ruff and cuffs.

L. H. S. My lords, the reason why you be
called hither tins day, is to sit as peers of
Frances coontess of Somerset.

Mr. Fenshaw, Clerk of the Crown. Frances
coontess of Somerset, hold up thy hand.

She does so, and held it up till Mr. Lieu-
tenant told her she might put it down ; and
then he read the Indictment, containing Wes-
ton's accounts, in the poisoning of t>ir T. Ovcr-
hury, and her abetting of him, the 8th of May,
1613. — The countess of Somerset, all the while
the indictment was reading, stood, looking
pale, trembled, and shed some few tears ; and
at the first naming of Weston in the indictment,
nut her fan before her face, and there held it
half covered till the indictment was read.

Mr. Fenshaw. Frances countess of Somerset,
what sayest thou ? Art thou guilty of this felony
and murder, or not guilty ?

The lady Somerset making an obeisance to
the Lord H igh Steward, answered Guilty, with
a low voice, but wonderful fearful.

My lady, upon her Arraignment, having
pleaded Guilty,* the proceeding after was thus:

Mr. Attorney. May it please your grace,
I my Lord Hitih Steward of England, 1 am glad
to hear this lady's so free acknowledgment, for
confession is noble. Those that have been for-
merly indicted, at their Arraignment persisted
in denial, as Weston, Elwes, Franklin and Tur-

ner ; but you see this lady's humility and re-
can not but be a spectacle of much commise-

pentance by so pleading ; and certainly she

ration, V you either respect the sex, a woman,
or her parentage, honourable; but this day and
to-morrow is to crown justice : the mercy-seat
is the innr-r part of the temple, the throne
publick, and therefore I shall now only pray a
record of the confession and judgment : bat
since the peers are met, for honour's sake it
is good to declare the king's justice. This
is the secoud time t»ince the king's coming,
these thirteen years, that any peers have
been arraigned, and both these times your
grace had the place of High-Steward ; the
first were Grey and Cobh.tii), and though
they were convicted, yet execution followed
not. No noble blood hath yet becu spilt since
his majesty's reij»n. The first was revenge of
treason amongst maleconunts ; ai.d this of
a particular offence to a private subject, against
those that have been so high in the king's grace
and favour, and therefore deserve to be written
in a sun-beam. But his being the best master
in the world, hinders him not from being the
best king ; for he can as well plane a bill, as
ruise a valley : a good lesson to put to my
lords the peers ; he is lieutenant to him that is

♦ 3 Co. Inst. 50, Bacon's Works, vol, 1-
p. 87.

955] STATE TRIALS, 14 Jambs I. lfllG.— Trials qf the Murderer*

[956

no respecter of persons. This that I should
now speak of, may be reduced to that which
was acted in the vault, and since upon the
stage : the first I will not now enter, into, be-
cause I will neither grieve a lady that is pre-
sent, nor touch a lord that is absent ; my duty
requires it not, and my humanity forbids it.
For that which hath been upon the stage,
which is the theatre of God's justice, you shall
understand that which hath been worthily
acted by the king, in this noble work of justice,
and right well by his ministers. Orerbury died
poisoned the 1 5 th of Sept. 1613, in the Tower
of London : he was no sooner dead, but there
was a certain rumour and muttering* that was
rux populi, that Overbury came strangely to his
death : and in that time, on the contrary hand,
there was another rumour, but that was vox
diaboti, that he died of a foul disease, so foul a
one as is not fit for me to name. But for two
years after this, though Overbury's blood cried
for revenge, vox Dei was not heard. ' Gloria
* Dei celare, regis pefscrutare rem :' It is the
glory of God to conceal a thing, of a king to
hud it out ; yet all the while God so dazzled
the eyes of these two great procurers, and their
instruments, that the first looked not about
them, the other fled not. About the beginning
of the last progress it first brake forth ; and as
all murders are strange in their discovery, so
this was miraculous, for it came out in a com-
pliment thus : my lord of Shrewsbury, who is
now with God, commended sir J. Elwes to a
counsellor of estate; and it was by him that
sir J . in respect of the good report he had heard
made of his honour and worth, desired to be
made known unto him. That counsellor an-
swered, That he took it for u favour from him ;
but withal added, there lies a kind of heavy
imputation on him, about Overbury 's death : I
ould wish be would clear himself, and give
some satisfaction in the point. This my lord
.Shrewsbury related back, and presently Elwes
was struck with it, and makes a kind of disco-
very, that some attempts were undertaken
against Overbury, but took no effect, as checked
by him. Though the truth be, he lacked rather
fortitude in the repulse, than honesty. This
counsellor weighing well this narration from
Elwes, acquainted the king with the adventure;
who commanded presently that Elwes should
set down his knowledge in writing, which ac-
cordingly he did, but still reserving himself
within his own compass, not to touch himself,
endeavouring rather to discover others than
any efse should undertake that office, and so
accuse him. The king still endeavours to
search the truth of thi< husiness, gives direction
for the examination "of the truth of it, commits
it to certain counsellors; they pick something
out of Weston ; then the further enquiry is
delivered over to my lord Coke, who in this
cause was very painful, took two or three hun-
dred examinations : but when he found it
might touch upon greater persons, then he de-
sired some other* might be joined with him,
which was accordingly granted ; namely, the

Lord Chancellor, Lord Steward, the lord
Zouch. But then there were no practices left
untried for the suppression of the discovery;
Weston was solicited to stand mute, but at
last this dumb devil was cast out. Then fol-,
lows Elwes, Turner, Franklin, all of which
were actors in this tragedy, without malice,
but no authors. Now when this lady comes
to her 'part, she meets justiee in the way, by
confession, which is the corner-stone either of
mercy or judgment ; yet it is said, that mercy
and truth be met together. Truth you have in
her confession, and that may be a degree , to
mercy, which we must leave to him in whose
power it resides ; in the mean time this day
must be reserved for judgment. Now to con-
clude, and give you an account of the often
procrastinations in this business ; the first was
due to humanity, her child-birth; the second
was for reason of state ; and the last had a
grave and weighty cause. Those directions
the king at the first gave written with his owa
hand, for the examination of his business, I
desire may be read.

The King's Instructions read.

There be two things iu this cause to be tried,
and the verity can be but in one of them; first,
Whether my lord of Somerset and my lady were
the procurers of Overbury's death; or, that this
imputation hath been by some practised to east
an aspersion upon them. I would first have
you diligently enquire of the first ; and if you
find them clear, tnen I would have you as care-
fully look after the other, to the intent such
practices may be discovered, and not suffered
to pass with impunity.

Mr. Alt. There be other directions in these
instructions, by nay of interrogatories, that are
not now necessary to be read.

L. H. S. Let the lords the peers view these
directions from the king.

Lord Coke. None of these interrogatories,
which the king desired there should be exami-
nations upon, came away empty ; and whatso-
ever whispe rings there be abroad of the death
of Weston, they all (some before the hour of
their death) confessed the fact, and died pent-
tent ; and if need should require, I liave brought
their confessor along (namely, T)r. Why ting).

L. H. S. My lords, you see, and have hesrd
those directions under the king's hand ; give
the glory to God, and honour to the king.

Mr. Alt. May it please your grace, &c.
whereas Trances countess of Somerset hath
been indicted as accessary before the fact, of
the wilful poisoning and murder of sir T. Over-
bury ; upon her Indictment, she bath been
arraigned ; upon her Arraignment, pleaded
Guilty : I desire that her Confession may bt
recorded, and Judgment given against the Pri-
soner.

Fenthaw. Frances countess of Somerset,
hold up thine hand : Whereas thou hast ben
indicted, arraigned, and pleaded Guilty, as ac-
cessary before the fact, of the wilful poisoning

tttj

STATE TRIALS, U Jaxm t lOia. — qf Sr TIomm Ovtrbary.

ind murder of sir T. Overbury ; what const
ihou now say for thyself, why Judgment of
Death should not be pronounced against thoe?

C. of' Sum. I can much aggravate, but no-
:hing extenuate my fault ; I desire mercy, ami
Jim the lords will intercede for me to the king.
This she spake humbly, fearfully, and so low,
the Lord Steward could not hear it, but Mr.
Attorney related it.)

Hr. Alt. The lady is so touched with re-
morse and sense of her fault, that grief surprizes
her from expressing of herself ; but that which
she bath confusedly said, is to ihh effect, That
ibe cannot excuse herself, but desires mercy.

Sir II. Coniugsby sitting before die Lord High
Steward, rises, and upon his knee delivers Iiim
Ibe white staff.

L. H. S. Frances countess of Somerset,
whereas thou hast been indicted, urraigned,
pleaded Guilty, and tint thou hast nothing to
■ay for thrsell, ii is now my pnrtlo pronounce
Judgment ; only thus much before, since my
lords hare heard with what humility aud grief
you have confessed the fnct, I do not doubt
they will signify so much to die king, and me-
diate for his grace towards you: but in the
Dean time, according to the law, the sentence
must be this, That tltou shall be carried (rum
hence to the Tower of Lsndon, and from thence
to the place of execution, where you are tn be
banged by the neck till you be dead ; and the
Lord have mercy upon your soul.

The following articles are extracted from
Birch's 4to ed. of Bacon's works, vo). 3. p. 4Q3 :

The Ciia ttoE of the Attorney General, sir Fran-
cis Uncoil, against Frances, countess of
Somerset, intended to have been spoken by
him at her Arraignment, on Friday, May
«», 1610, in case she had pleaded Not Guilty.
It may please your grace, my Lord High
Steward of England, and yon iny lords the
peers; — You have heard tlie Indictment against
Ibis lady well opened ; and likewise the point
in law, that might make some doubt, declared
and solved; wherein certainly the policy of the
law of England is much to be esteemed, which
retruireth and respectcth form in the Indict-
ment, and substance in the proof. — This scru-
ple it may be bath moved this lady to plead
not guilt j, though rbr the proof I shall nnt need
■ouch more than her own confession, which she
bath formerly nuule, free and voluntary, and
therein given glory to God and justice. And
certainly confession, ns it is the" st rati nest foun-
dation of justice, to it is a kind of corner-stone,
whereupon justice and mercjr may meet. — The
proofs, which 1 shut read in the end for the
ground of your verdict and sentence, will bo
■try short ; and, rfs much as may, serve to
aatis/y your honours and consciences for the
conviction of this lady, without wasting or lime
m • case clear unit contested ; or ripping up
gajltiness against one, that hath prostrated her-
aafa'by coirit-ninu ; or preventing or deflowering
KM much of the evidence. And therefore the

[958

itself doth ndmonish me to spend this
day rather in declaration, than in evidence,

K'vin" God and the king ihe honour, and your
rdships and the hearers the contentment, to
set before you the proceeding of this excellent
work of the king's justice, from the beginning
to the end ; and so to conclude with the read-
ing the confessions and proofs. — My lords, this
is now the second time within the space of 13
years reign of our happy sovereign, that this
high tribunal seat of justice, ordained for the
trial. by peers, huth been opened nod erected ;
and that, with a rare event, supplied and exer-
cised by one and the same person ; which is a
great honour io you, my Lord Steward. — In nil
this mean time, the king hath reigned in his
white robe, not sprinkled with any drop of
blood of any of Ms nobles of this kingdom.
Nay, such hath been the depths of his mercy,
as even those noblemens' bloods, (against whom
the proceeding, was at Winchester,) Cobhain
sod Grey, were attainted and corrupted, but
, not spilt or taken away; but that (hey remain*
ed rather spectacles of justice in their continual
imprisonment, than mamtrnents of justice in
the memory of their suffixing. — It is true, that
I the objects of his justice then and now were
I very differing. For then, it was the revenge of
! an offence against his own person and crown,
; and upon persons, tbat were malcontents, and
! contraries to the state and government. But
i now, it is the revenge of the blood and death of
a particular subject, and the cry of a prisoner.
! It is upon persons, that were highly in bis fa-
| vour ; whereby his majesty, to his great honour,
l hath shewed to the world, ns if it were written
{ in n sun-beam, that he is truly the lieutenant of
him, with whom there is no respect of persons ;
that his affections royal are above Ins nuVtlons
that his favours and n

iaJij :

him are not like popish sanctuaries to privilege
I malefactors : nnd that his being the best inns-
' ter of the world doth not let him from being
1 the best Ling of the world. His people, on the
I other side, may any to themselves, ' 1 will lie
| ' down in peace ; for God and the king and the
I < law protect me against great and small.' It
>e a discipline also to great men, espe-
ly such ns ore swolu in fortunes from small
beginning'!, that the king is ns well able to level
mountains BJ to fill rallies, if such be their de-
sert.— But income to the presbnt case ; the
great frame of justice, my lords,' in this present
action, hath u vault, nn'd it hnth a stngc: a
vault, wherein these works »f darkness wire
contrived ; and a stage with steps, by which
they were brought to light. Aud therefore 1
will bring ihis work of justice to the period of
this duv j ami then go on with' this day's work.
— Sir 'i'. Overbury was uiurdon*d by poison in
the 15th of September, 1613, 11 Reg. This
foul and cruel murder did, for a time, cry se-
cretly in the ears of God ; but God gave no
answer to it, otherwise than by that voice,
which sometimes he usetli, which is Mr po/mli,
the speech of the people. For there went then
a murmur, that Overbury was poisoned : and

959]

STATE TRIALS, U James I.

yet this same submiss and soft voice of God,
the speech of the vulgar people, was not with-
out a counter-tenor, or counter-blast of the
devil, who is the common author both of mur-
der and slander : for it was given out, that Over-
bury was dead of a foul disease, and his body,
which they had made a corpus judaicu/n with
their poisons, so as it had no whole part, must
be said to lie lepro&ied with vice, and so his
name poisoned as well as his body. For a» to
dissoluteness, I never heard the gentleman
noted with it : his faults were insoleucy, and
turbulency, and the like of that kind : the other
part of the soul, not the voluptuous. — Meantime,
there was some industry used, of which I will
not now speak, to lull asleep those, that were
the revengers of blood; the fattier and the bro-
ther of the murdered. And in these terms
things stood by the space almost of two years ;
during which time, God so blinded the two
great procurers, and dazzled them with their
own greatness, and bind and nail fast the actors
and instrument", with security upon their pro-
tection, us neither the one looked about them,
cor the other stirred or fled, nor were conveyed
away: but remained here st;li, as under a privy
arrest of God '* judgments; insomuch as Frank-
lin, that should have been sent over to the Pals-
grave with good store of money, was, by God's
providence, and the accident of a marriuge of
his, diverted and stayed. — But about the begin-
ning of the progress hist hummer, God'fc judg-
ments bewail to come out of their depths: and
as the revealing of murders is commonly such,
as a man may say, a Domino /toe /actum est ;
it is God\ work, aud it is marvellous in our
eyes ; *o in this particular it was most admira-
ble ; for it came forth by a compliment and
matter of courtesy. — My lord of Shrewsbury,
that is now with God, recommended to a coun-
sellor of state, of especial trust by his place,
the late lieutenant Helwisse, only for acquaint-
ance :is an holiest worthy gentleman ; and de-
sired him to know him, and to be acquainted
with lum. That counsellor answered him civilly,
that my lord did him a favour; and that he
should embrace it willingly : but he must let
his lordship know, that there did lie a heavy
imputation upon that gentleman, Helwisse; for
that sir T. Overbury, his prisoner, was thought
to hu\e cone to' a violent and untimely death.
When this speech was reported back by my lord
of Shrewsbury to Helwisse/ perculit illico uni-
mum j he was stricken with it; and bong a po-
litic man, and of likelihood doubting, th.it the
matter would break forth at owe time or other,
and that others might have the start of him, and
thinking to make his own case by his own tale,
reboUc 1 with hinwlf, upon this occasion, to
discover to my lord of Shrewsbury as id tint
counsellor, that there was an attempt, w hereto
hi* was privy, to haie poisoned Overbury by the
hands of his under keeper, Weston ; bur that
he checked it, and put it by. and dissuaded it,
aud i elated so much to hiiu iinJccd ! but then
he left it thus, (hat was but an attempt, or un-
timely birth, never executed; and, as if his own

I 616.— Trials qfthe Murderers [9G0

fault had been no more, but that lie was honest
iu forbidding, but fearful of revealing and im-
peaching or accusing great persons; and sp
with this tine point thought to save himself. —
I>ut that great counsellor of state wisely consi-
dering, that by the lieutenant's own tide it
could not be simply a permission or weakness;
for that Weston was never displaced by the
lieutenant, notwithstanding that attempt : aud
coupling the sequel by the beginning, thought
it matter lit to be bt ought before his majesty,
by whose appointment Helwisse set down the
like declaration in writiug. — Upon this ground,
the king playeth Solomon's pan, gUtriu Dei cc-
lare rem ; et gloria regis invest tgare tern ; and
sets down ce. tain papers of his own hand, which
I might term to be c laves justitig, keys of jus-
tice ; and miy serve for a precedent both for
princes to imitate, and for a direction for juoge*
to follow ; and his majesty carried the balance
with a coustlht aud steady hand, evenly tod
without prejudice, whether it were a true accu-
sation of the one part, or a practice and fac-
tious device of the other : which writing, be-
cause I am not able to express according to the
worth thereof, I will desire your lordship anon
to hear read. — This excellent foundation of jus-
tice being laid by his majesty's own hand, it
was referred unto some counsellors to examine
farther, who gained some degrees of light from
Weston, but yet led it imperfect. — After it was
referred to sir Edward Coke, chief justice of
the King's-beuch, as a person best practised in
legal examinations, who took a great deal of
indefatigable pains in it, wirhout intermission,
having, as I have heard him say, taken at least
three hundred examinations in this business.—
But these things were not done in a corner. I
need not speak of them. It is true, that my
lord chief justice, in the dawning and opening
of t he light, finding t hat the matter touched upon
these great persons, vary discreetly became
suitor to the king to have greater persons (Uwn
his own rank joined with him. Whereupon
your lordship, my lord high steward of Eng-
land, to whom ttie king coin no only resorteth in
urduts, and my lord steward of the king's house,
and my lord Zouch, were joined with htm.—*
Neither wanted there this while practice to sup-
press testimony, to deface writings, to weaken
the king's resolution, to slauder the justice, and
the like. Nay, when it came to the first so-
lemn act of justice, which was the arraigunieut
of Weston, he had his lesson to stand mute ;
vvliich had arrested the wheel of justice. But
thii dumb devil, by the means of some di>creet
divines, and the ]>otent charm of justice, toge-
ther, was cast out. Wither did this poisonous
a '<le; stop his ear to t-hnsthrhariii*, hut, relented,
uid yieided to his trial. — Then follow the pro-
ceedings of justice ugain-t tlie ot-er offender!,
Turner, Helw:sse. lra-iklm. — liu idl the**e be-
ing hut tiic organs ami natrium nts of this fad,
ti.e actors and no1, th authors justice -could
not have been cr-'wocd without this last art
ng:iiust these great per* ms. Else Weston's
censure or prediction might have been

STATE TRIALS, 14 James I. \6\6.—<tf Sir Thomas Overbuy. [963

he Mid, he hoped the small flies should
e caught, and the great escape. Wherein
ing being in great straits, between the de-
g of his honour and of his creature, hath,
ding as he useth to do, chosen the better
reserving always mercy to himself.— The
also of this justice hath had its true mo-
The time until this lady's deliverance
(lie unto honour, Christianity, and huma-
io respect of her great belly. The time
was due to another kind of deliverance

which was, that some causes of estate,
were in the womb, might likewise be
;ht forth, not for matter of justice, but for
n of state. Likewise this last procrasti-
n of days had the like weighty grounds
•uses. And this is the true and brief re-
Dtation of this extreme Work of the king's
t. — Now for the evidence against this
I am sorry I must rip it up. 1 shall first
yon the purveyance or provisions of the
as; that they were seven in number
Jbt to this lady, and by her billet led and
tp till they might be used : and this done
an oath or vow of secrecy, which is like
fyptian darkness, a gross and palpable
teas, that may be felt. — Secondly, 1 shall
you the exhibiting and sorting of this snme
«r or volley of poisons: white arsenic
it for salt, because it is of like body and
r. The poison of great spider*, and of
Miomous fly cantharides, was fit for pigs
, or partridge sauce, because it resembled
sr. As for mercury-water, and other poi-
they might be fit for tarts, which is a kind
Kch-pot, wherein no one colour is so
r : and some of these were delivered by
inds of this lady, and some by her direc-
— Thirdly, 1 shall prove and ooserre unto
the cautions of these poisons ; that they
. not be too swift, lest the world should
I at it by the suddenness of the dispatch :
hey must abide long in the body, and
by degrees : and for this purpose there
be essays of them upon poor beasts, &o.
astly I shall shew you the rewards of this
sooment, first demanded by Weston, and
it because the deed was not done ; but
the deed done and perpetrated; that Over-
was dead, then performed and paid to the
of 180/. — And so without farther aggra-
I of that, which in itself bears its own
ly, I will conclude with the confessions
I lady herself, which is the strongest sup-
of justice; and yet is the foot-stool of
r. For, as the scripture says, mercy and
have kissed each other ; there is no meet-
'greeting of mercy, till there be a con-
D, or trial of truth. For these read,
din, Nov. 16, Franklin, Nov. 17, Rich,
on, Oct. 1, Rich. Weston, Oct. 2, Will.
fcn, Oct. 2, Rich. Weston, Oct. 3, Hel-
, Oct. 2, The Countess's letter without
The Countess's confession Jan. 8.

L. II.

Questions legal for the Judges in the Case of
the Earhand Countess of Somerset.

Whether the ax is to he carried before the
prisoner, being in the case of felony ?

Whether, it the Indy make any digressirfti.to
clear his lordship, she is not by die Lord Stew*
ard to be interrupted and silenced ?

Whether, if my lord of Somerset should break
forth into any speech of taxing the king, he he
not presently by the Lord Stewnrd to be inter-
rupted and silenced; and, if he persist, lie be
not to be told, that if he take that cour>e, he is
to be withdrawn, and evidence to be piven in
his absence ? And whether that may he ; and
what else to be done ?

Whether if there should be twelve votes to
condemn, and twelve or thirteen to acquit, it
be not a verdict for the king ?

Questions of Convenience, whereupon his ma-
jesty may confer with some of bis Council.

Whether, if Somerset confess at any time
before his trial, his majesty shall stay trial in
respect of farther examination concerning
practice of treason, as the death of the late
prince, the conveying into Spain of the now
prince, or the like ; for till he confess the lest
crime, there is [no] likelihood of confessing the
greater?

Whether, if the trial upon that reason shall
be put off, it shall be discharged privately by *
dissolving the commission, or discharging the
summons ? Or whether it shall not be done in
open court, the peers being met, and the so-
lemnity and celebrity preserved ; and that with
some declaration of the cause of putting off the
farther proceeding ?

Whether the days of her trial and his shall
be immediate, as it is now appointed; or a
day between, to see, if, after condemnation,
the lady will confess of this lord ; which done,
there is no doubt but he w ill confess of himself?

Whether his trial shall not he set first, and
hers after, because then any conceit, which
may be wrought by her clearing of him, may
be prevented ; and it may be he will be in the
better temper, hoping of his own clearing, and
of her respiting?

What shall be the days ; for Thursday and
Friday can hardly hold in respect of the sum-
mons ; and it may be as well Friday and Satur-
day, or Monday and Tuesday, as London
makes it already ?

A particular Remembrance for his Majesty.

It were good, that after he is come into the
hall, so that he may perceive he roust go to
trial, and shall be retired into the place ap-

{)ointed, till the court call for him, then the
ieutenant should tell him roundly, that if in
his speeches he shall tax the king, that the
justice of England is, that he shaG be taken
away, and the evidence shall go on without
him; and then all the people will cry away
with him ; and then it shall not be in the king's
will to save his life, the people will be so set
on fire.

3a

963]

STATE TRIALS, H James I. 1610.— Triofco/ the Murderers

[Ml

Indorsed. — Memorial touching the course to
be had in my lord of Somerset's arraignment.

The Heads of the Charge against Robert Earl

of Somerset.

First it is meant that Somerset shall not be
charged with any thing by way of aggravation,
otherwise than as conduce th to the proof of
the impoisonment.

For the proofs themselves, they are distri-
buted into four :

The first to prove the malice, which Somer-
set bore to Overbury, which was the motive
and ground of the impoisonment.

The second is to prove the preparations unto
the impoisonment, by .plotting his imprison-
ment, placing his keepers, stopping access of
friends, &c.

The third is the acts of the impoisonment s
themselves.

And the fourth is acts subsequent, which do
vehemently argue him to be guilty of the im-
poisonment.— [Apostyle of the king. * Ye will
doe well to remember lyke waves in your praem-
ble, that insigne, that the only zeal to justice
makeih me take this course. I have com-
inandit you not to expatiate,, nor digresse upon
any other points, that may ndt serve cleariic
for probation or inducement of that point,
ijuhair of he is accused.']

For the first two heads, upon conference,
^hereunto I called Serjeant Montagu and Ser-
jeant Crew, 1 have taken them two heads to
myself; the third I have allotted to Serjeant
Montagu ; and the fourth toserjeantCrew.

In the first of these, to my understanding, is
the only tenderness : fur on the one side, it is
most necessary to lay a foundation, that the
malice was a deep malice, mixed with fear,
and not only matter of revenge upon hi* lord-
bhip's quarrel : for periculum periculo vincitur ;
and the malice must have a proportion to the
effect of it, which was die impoisonment : so
that, if this foundation be not laid, all the evi-
dence is weakened.

On the other side, if I charge him, or could
charge him, by way of aggravation, with mat-
ters tending to dislovaltv or tteason, then he is
like to grow desperate.

Therefore I shall now set down perspicu-
ously what course 1 mean to hold, that your
majesty niny be- pleased to direct and correct
it, preserving the strength of the evidence: and
this 1 shall now do, but shortly and without
otnament.

First, 1 shall read some passages of Over-
bury 's letters, namely these: «• Is tins the fruit
of nine years love, common secrets, and com-
mon dangers?" Jn another letter; 4t Do not
drive me to extremity to do that, which you and
1 should be sorry for ?" In another letter ;
" Can you forget him, between whom such
secrets of all kinds have passed ? 6cc'9

Then will I produce Suucock, who deposeth
from Weston's speech, that Somerset told Wes-
ton, that, if ever Overbury came out of prison,
one of them must die for it.

Then I will say what these secrets were. I
mean not to enter into particulars, nor to charge
him with disloyalty, because he stands to be
tried for his life upon another crime. But yst
by some taste, that I shall give to the peers in
general, they may conceive of what nature
those secrets may be. Wherein I will take it •
for a thing notorious, that Overbury was a man,
that always curried himself insolently, both
towards the queen, and towards the late prince:
that he was a man, that carried Somerset on
in courses separate and opposite to the privy
council : that he was a man of nature fit to be
an incendiary of a state ; fall of bitterness and
wildness of speech and project : that he was
thought also lately to govern Somerset, inso»
much that in his own letters he vaunted, that
from him proceeded Somerset's fortune, credit,
and understanding.

This course I mean to run in a kind of gene-
rality, putting the imputations rather jpoa
Overbury than Somerset ; and applying it, that
such a nature was like to hatch dangerous
secrets and practices. I mean to shew like-
wise that jargons there were and ciphers be*
tween them, which are great badges of secrets
of estate, and used either by princes and their
ministers of state, or by such as practise against
princes. That your majesty was called Julius
in respect of your empire; the queen, Agrip-
pina, though Somerset now saith it was Livia,
aud that my lady of Suffolk was Agrippina;
the bishop of Canterbury, Unctius; Northamp-
ton, Dominic*; Suffolk, first Lerma, after Wol-
sey ; and many others ; so as it appears the/
made a pluy both of your court and kingdom ;
and that their imaginations wrought upon the
greatest men and matters.

Neither will I omit Somerset's breach of
trust to vour majesty, in trusting Overbury wifh
all the dispatch**, things, wherewith your council
of estate itself was not many times privy or ac-
quainted : and yet this man must be admitted
to them, not cursorily, or by glimpses, but to
have them by him, to copy them, to register
them, to table them, (Sec.

I shall also give in evidence, in this place, the
slight account of that letter, which was brought
to Somerset by Ashton, beiug found in the
fields soon after the late prince's death, and
was directed to Antwerp, containing these
words, that " the first branch was cut from the
tree ; and that he should, ere long, send hap-
pier and joyfuller news."

Which is a mutter I would not use, but that
my lord Coke, who hath filled this part with
many frivolous things, would think all lo*r,
e\c< pt he hear somewhat of this kind. Hot
thU it is to come to 'lie leavings of a bosuns*.
— [Aposft//r 'J' the king. 'This evidence cannot
be fin en in without making me his accH>tr,
and that np«>n a very »bght g.ound. As for
all the subsequent evidence*, they are all so
little evident, as una litura may serve thuioie
all/] J

And for the rest of that kind, as to speak of
that particular, that Mrs. Turner did at White-

965]

STATE TRIALS, 14 James I. 1616 tfSir Tlioma* Overbuy.

[905

hall shew to Franklin the man, who, as she
said, poisoned the prince, which, he says, was
m physician with a red heard. — [A p. i;c. ' No-
thing to Somerset, and declared by Franklin
after condemnation/]

That there was a little picture of a young
man in white was, left hy Mrs. Turner with
Formal! the conjurer, which my lord Coke
doubted was the prince^ — [Ap. tyc. ' Nothing
to Somerset, find a loose conjecture.']

That the viceroy of the Indies at Goa re-
ported to an English factor, that prince Henry
came to an untimely death hy a mistress of his.
—[Ap. ifc. * No better than a gazette, or pas-
sage of Gallo Belgicus.']

That Somerset, with others, would have
preferred Low hell the apothecary to prince
Charles. — [Ap.Sfc. * Nothing yet proved against
Lowbell.'l

That the countess laboured Forman and
Gresham, the conjurers, to inforce the queen
hy witchcraft to favour the countess. — [Ap. fyc.
* Nothing to Somerset.']

That the countess tow Franklin, that when
the queen died, Somerset should have Somerset-
houie.— [i4/>. <$r<\ * Declared by Franklin after
condemnation/]

That Northampton said, the prince, if ever
he came to reign, would prove a tyrant. — [Ap.
Sfc * Nothing. to Somerset/]

That Franklin was moved by the countess to
go to the Palsgrave, and should be furnished

with money.— [Ap. $c. « Nothing to Somer-
set/]

The particular reasons, why I omit them, I
have [inserted between crotchets]; but the ge-
neral is partly to do a kind of right to justice,
and such a solemn trial, in not giving that in
evidence, which touches not the delinquent, or
is not of weight ; and partly to observe your
majesty's direction, to give Somerset no just
occasion of despair or flushes.

But I pray your majesty to pardon me, that
I have troubled your majesty with repeating
them, lest you shall hear hereafter, that Mr.
Attorney hath omitted divers material parts of
the evidence. Indorsed,

" Somerset's Business and Charge, with his
majesty's Postiles."

Some curious particulars, concerning the
proceedings against the Somersets, are to be
found in Bacon's Correspondence as given in
the late editions of his works.

The earl and his lady were released from
their confinement in the Tower in January
1621-?, the latter dying August 23, 1632, leav-
ing one daughter Anne, then sixteen years of
age, afterwards married to William lord Russel,
afterwards earl, and at last duke of Bedford.
The earl of Somerset survived his lady several
years, and died in July 1645, being interred on
the 17th of that mouth in the church of St.
Paul's Co vent-Garden.

109. The Trial of Robert Carr* Earl of Somerset,! ^ay 25, for
the Murder of Sir Thomas Overbury : 14 James I. a. d. 1616.

Ser. Ctyer. O YES, my Lord High Stew-
ard of England purposes this day to proceed to
the Trial o( Robert earl of Somerset. O yes,
Whosoever have any Indictments touching this
cause, publicly give them in.

• Co. Inst. 50. Bacon's Works, vol. i. p. 87.

f " And now begins the game to be played,
in which Somerset must be the loser, the cards
being shuffled, cut, and dealt between the king
and sir Edward Coke, chief justice, whose
daughter Purbeck Villers had married or was
to marry, and therefore a fit instrument to
ruin Somerset and secretary Win wood; these
all played the stake ; Somerset's life and his
lady's, aud their fortunes, and the family of
Suffolk: some of them played booty, and in
truth the game was nut played above-board.
The day the king went from Whitehall to Theo-
bald's, and so to Rovstou, the king sent for all
the Judges (his lords and servants encircling
him) where kneeling down in the midst, he
used these words : " My lords' the Judges; It
ii lately come to my heariiitg that you have now
m examination a business of poisoning : Lord, in
what a most miserable condition shall this king-
dom be (the only famous nation for hospitality
in the world), if our tables should become such

My lord Coke delivers in the Indictment of
my lord of Somerset to Mr. Fenshaw indorsed.

Ser. Crt/er. O ves, Walter Lee, Serjeant at
Anns, return the Precept for the lords, which
thou hast warned to be here this day. O yes#

a snare as none could eat without danger of life,
and that Italian custom should be introduced
amongst us; therefore my lords 1 charge you,
as you will answer it at that great and dreadful
Day of Judgment, that you examine it strictly
without favour, affection, or partiality ; and if
you shall spare any guilty of this crime, God's
curse light on you and your posterity ; and if I
spare any that are guilty, God's curse light on
me and my posterity f-»r ever/' — But how this
dreadful thunder, curse or imprecation was
performed, shall be shewed hereafter; and I
may pray God the effect be not felt amongst
us, even at this day, as it hath been, I fear, on
that virtuous lady Elizabeth and her children ;
for God treasures up such imprecations and
deprecations, and pours them out when a na-
tion least dreams, even when they cry, Peace,
peace to their souls; and it may well be (at
this time our sins concurring) pouring out upon
king, judges, and the whole sf.u e. — It appears
how unwilling the king was to ruin Somerset,

967]

STATE TRIALS, 14 James I. 1616.— Trials qf the Murderers

[963

(He calls every lord by his name, and they
stand up as they he culled.] — My Lord High
Steward excuses the lords Mounteagle and
Russel of their absence, in respect of their sick-
ness.

tier. Crytr. O yes, Lieutenant of the Tower,
return thy Precept, and bring the Prisoner to
the Bar. — Which he did, and my lord makes
three reverences to the Lord High Steward and
the lords.

Mr. Fens haw. Rob. earl of Somerset, hold
up thy hand.

He holds it up so long, until Mr. Lieutenant
bad him hold it down. The Indictment is
read, containing Weston's actions in the poi-
soning of sir T. Overbury, and his abetting of
him, the 8th of May 1613. — My lord of Somer-
set was apparelled in a plain black sattin suit,
laid with two sattin laces in a seam ; a gown of
unen t velvet lined with unshorn : all the sleeves
laid 'with sattin lace; a pair of gloves with
sattin tops, his george about his neck, his hair
curled, his visnge pale, his beard long, his eyes
sunk in his head. Whilst his Indictment was

a creature of his own making, * sed immedi-
' cabile vulnus, ense rescindendum est/ Grace
was offered by the king, had he had grace to
have apprehended it. The king with this, took
his farewel tor a time of London, and was ac-
companied with Somerset to Roys ton, where,
no sooner he brought him, but instantly took
leave, little imagining what viper lay amongst
the herbs-; nor must £ forget to let you know
how perfect the king was in the art of dissimu-
lation, or, to give it tus own phrase, king-craft.
The earl of Somerset never parted from him
with more seeming affection than at this time :
when he knew Somerset should never see him
more, and had you seen that seeming affection,
as the author himself did, you would rather
believe he was in his rising than setting. The
earl when he kissed his hand, the king about
bis neck, slabbering his cheeks, saying, ' for
God's sake when shall I sec thee agaiu? on
my soul I shall neither eat nor sleep until
you come again ;' the earl told him, on Mon-
day (this being on the Friday). • For God's
sake let me,1 said the king, 'shall I } shall I?'
Then lolled about his neck; then ' for God's
sake give thy lady this kiss for me;' in the same
mnnner at the stairs-head, at the middle of
the stairs and at the stairs foot. The earl was
not in his coach, when the king used these very
words (in the hearing of four servants, of whom
one was Somerset's great creature, and of the
bed-chamber, who reported it instantly to the
author of this History) ' I shall never see his
face more.' — I appeal to the reader, whether
this motto of ' Qui nescit dis*imulare nescit
' reguure,' was not as well performed in this
passage as his Benti Pacirici, in the whole
course of his life; and his love to the latter,
made him to be beaten with his own weapon
in the other, by all princes and states that had
to do with him. Weldon's Court and Character
•f Kiug James, p. 99.

reading, he three or four times whispered to the
Lieutenant.

Mr. Fenshaw. Robert earl of Somerset!
What sayest thou, art thou Guilty of this felony
and murder whereof thou stand est indicted, or
Not Guilty ?

My lord of Somerset making an obeisance
to the Lord High Steward, answered, Not
Guilty.

Mr. Fenshaw. How wilt thou be tried ?

Ld. Som. By God and the country ; but
presently recalling himself, said, By God and
my peers.

Ser. Crytr. O yes, All you that be to gird
in evidence against Robert earl of Somerset,
who stands now at the bar upon his deliverance,
make your appearance, and you shall be heard
what you have to say against him.

My lord of Somerset, upon his arraignment,
having pleaded Not Guilty, the proceeding
after was thus:

Lord High Steward. [Ellesmere, Lord Chan-
cellor.] Robert earl of Somerset, you have been
arraigned, and pleaded Not Guilty; now I
roust tell you, whatsoever you have to say in
your own defence, say it boldly, without fear;
and though it be not the ordinary custom, you
shall have pen and ink to help your memory :
but remember that God is the God of truth ; a
fault defended is a double crime ; hide not the
verity, nor affirm an uu truth ; for, to deny that
which is true, increases the offence ; take heed
lest your wilfulness cause the gates of mercy to
be shut upon you. Now for you, my lords the
peers, you are to give diligent attention to that
which shall be said; and you must not rest
alone upon one piece of evidence, but ground
your judgment upon the whole. This more-
over I would have you remember, that though
you be not sworn as common juries, upon a
book, yet that you are tied in as great a bond,
your own honour and fidelity, and allegiance to
the king : and thus I leave the whole proceed-
ing to your censures. And for you that be of
the king's counsel, free your discourse from all
partiality, but let truth prevail, and endeavour
to make it appear.

Serj. Montague. My Lord High Steward of
England, and you my lords, tins cannot but be
a heavy spectacle unto you, to see that man
that not long since in great place, with a white
staff, went before the king, now at this bar hold
up his hand for blood ; but this is the change
of fortune, nay, I might better say, the hand of
God, and work of justice, which is the king's
honour. — But now to the fact; Robert eurl of
Somerset stands indicted as accessary before
the fact, of the wilful murder and poisoning of
sir T. Overbury, done by Weston, but procured
by him ; this, my lord, is your charge. The
Indictment hath been found by men of good
quality, seventeen knights and esquires of the
best rank and reputation, some of whose name*
I will be bold to read unto you; sir T. Fowler,
sir W. Slinesby, and fifteen more ; these have
returned billa vera. Now an Indictment is but
an accusation of record in form thus: Weston,

060] STATE TRIALS, H James I. 1616 — qfSir Thomas Overbury.

[070

at four several times, gave Overbury four several
poisons, the first May 9th, 1613, that was rosal-
ear, carrying this poison in one hand, and his
broth in the other; the second was June follow-
ing, and that was arsenick ; the third was July
the 10th following, and that was mercury subli-
mate in tarts; the fourth was Sept. J 4th follow-
ing, and that was mercury sublimate in a clyster,
given by Weston and an apothecary yet un-
known, and that killed him. Of these four se-
veral poisons ministered by Weston, and pro-
cored by you, the 15th of Sept. 1615, Overbury
died, and the author is ever worse than the
actor. The first poison laid in the Indictment,
that Weston gave sir T. Overbury, was the 9th
of May ; and therefore we say. That the lord
Somerset, the 8th of May, hired, counselled
mod abetted Weston to this fact : and as this
day, my lord, I do charge you for a king, so
heretofore king David was charged in the like
case, for the murder of Uriah; and though
David was under his pavilion, and Uriah in the
army, yet David was the cause of his murder:
so though you were in the king's chamber, and
Overbury in the Tower, yet it was you that
killed him. It was a stronger hand than
Weston's that wrought this. The proof, Mr.
Attorney, will follow; and I will now conclude
with two desires to the peers: first, That they
will not expect visible proofs in the work of
darkness. The second is,. That whereas in an
Indictment there be many things laid only for
form, you are not to look that the proof should
follow that, but only that which is substantial;
and the substance must be this, Whether my
lord of Somerset procured or caused the poi-
soning of sir T. Overbury, or no ?

L. U. S. That indeed, my lords, is that
which you are to look after, Whether my lord
'of Somerset was the cause of his poisoning, or
not?

Lord Coke. This was very well moved by
Mr. Recorder, and the law is clear in this
point, that the proof must follow the substance,*1
not the form.

The Judges all rising, affirmed this to be
true.

Att. Gen. (sir Francis Bacon). May it please
your grace, my Lord High Steward of England,
and you my lords the peers, you have here be-
fore you Robert earl of Somerset to be tried
for bis life, concerning the procuring and con-
tenting to the poisoning ot sir T. Overbury,
then the king's prisoner in the Tower of Lon-
don, as an accessary before the fact. — I know
voor honours cannot behold this noble man,
bat you must remember the great favours which
the king hath conferred on him, and must be
feasible, that he is yet a member of your body,
and a peer, as yoa are ; so that you cannot
cot him off from your body, but with grief: and
therefore you will expect from us that give in
the tag's evidence, sound and sufficient matter

• Qu. If this be whut Weldon means in tiie
passage cited from him in the note to Anne
Tamer's case, supra, p. -J29.

I of proof to satisfy your honours consciences. —
I As for the manner of the evidence, the king
our master, who, amongst other his virtues, ex-
celleth in that virtue of the imperial throne,
which is justice, hath given us command, that
we should not expatiate nor make invectives,
but materially pursue the evidence, as it con-
duce! h to the point in question. — A matter,
that, though we are glad of so good a warrant,
yet we should have done of ourselves : for far
be it from us by any strains of wit or arts, to
seek to play prizes, or to blazon our names in
blood, or to carry the day otherwise than upon
sure grounds; we shall carry the lanthoru of
justice (which is the evidence) before your eyes
upright, and so be able to save it from being
put out with any ground of evasion or vain de-
fence, not doubting at all, but that the evidence
itself will carry that force, as it shall need no
advantage or aggravation. — Firsr, my lords,
the course that I will hold in delivering of that
which I shall say, for I love order, is this : 1st,
I will speak somewhat of t|ie nature and great-
ness of the offence, which is now to be tried,
not to weigh down my lord with the greatness
of it, but rather contrary wise to shew, that a
great offence needs a good proof. And that
the kinp, howsoever he might esteem this gen-
tleman heretofore as the signet upon his finger
(to use the Scripture phrase), yet in such a
case as this, he was to put it off. — 2dly, I will
use some few words touching the nature of the
proofs, which in such a case are competent. —
Sdly, I will state the proofs. — And, lastly, I
will produce the proofs, either out of examina-
tion and matters of writing, or witnesses viva
voce.

For the offence itself, it is of crimes, next
unto High-treason, the greatest; it is the foulest
of felonies. It hath three degrees ; First, It is
murder by impoisonment : Secondly, It is
murder committed upon the king's prisoner in
the Tower : Thirdly, I might say, That it is
murder under the colour of friendship; but that
is a circumstance moral, and therefore I leave
that to the evidence itself. For murder, my
lords, the first record of justice winch was in
the world, was judgment upon a murderer, in
the person of Adam's first-born Cain : and
though it was not punished hv death, hut
banishment, and marks of ignominy, in respect
of the populatiou of the world; yet there was
a severe charge given, that it should not go un-
punished. So it appeareth likewise in Scrip-
ture, that the murder of Ahner by Joah, though
it were by David respited in resptrt of great
services past, or reason of state, yet it was not
forgotten. But 'of this I will say no more, be-
cause I will not discourse ; it was evt ^admit-
ted and ranked in God's own tables, that mur-
der is, of offences between man and man, next
unto High-Treason, and disobedience to autho-
rity, (which sometimes have been referred to
the first table, because of the lieutenancy o/
God in princes) the greatest. — For impoison-
ment, I am sorry it should be heard of in our
kingdom ; it is not ' nostri generis, nee sangui-

971]

STATE TRIALS, 14 Jambs I. \G\6.— Trials of the Murderer*

[«7S

' nil peccatum ;' it is an Italian comfit for the
court of Rome, where that person that intoxi-
cateth the kings of the earth is many times
really intoxicated and poisoned himself. But
it hath three circumstances which make it
grievous beyond other matters. — The first is,
that it takes a man away in full peace, in God's
and the king'-* peace, tliat thinks no harm, but
is comforting of nature with refection and food:
so that, as the Scripture saith, ' his table is
'.made a snare/ — The second is, that it is easily
committed, and easily concealed ; and on the
otlier side, hardly prevented, and hardly disco-
vered : For murder by violence, princes havt
guards, and private men have houses, atten-
dants and arms : neither can such murder be
committed, but cum sonitu, with some overt
and apparent acts, that may discover and trace
the offenders : but for poison, the cup itself of
princes will scarce serve in regard of many
poisons that neither discolour nor distaste; it
comes upon a man when he is careles*, and
without suspicion, and every day a man is
within the gates of <feath. — And the last is, be-
cause it concerned) not only the destruction of
the iualiced man, but of every man, ' Quis
* modo tutus erit f ' For many times the poi-
son is prepared for one, and is taken by ano-
ther, so that men die other men's deaths,
' concidit infelix alicno vulucre ;' and it is as
the Psalmist calleth it, ' sagitta nocte volans,'
the arrow that flieth by night, that hath no aim
nor certainty. And therefore if any man shall
tay to himself, here is great talk of imprison-
ment, but I am sure I am safe, for I have no
enemies, neither have I any thing another man
should long for : Why, that is all one, he may
sit next him at the table, that is meant to be
iinpoisoned, and pledge him of his cup : As we
may see in the example of 21 Hen. 8. That
where the purpose was to poison one mau, there
was poison put into barm or yeast, and with
that barm, pottage or grewel was made, whereby
sixteen of the bishop of Rochester's servants
were poisoned ; nay, it went into the alms-bas-
ket likewise, and the poor at the gate were
poisoued. And therefore with great judgment
did the statute made that year, touching this
accident, make impoisoument Hi^h-Treason,
because it tends to the dissolving of human so-
ciety; for whatsoever olience doth so, is in the
nature thereof High-Treason. — Now for the
third degree of this particular offence, which is,
that it is committed upon the kind's prisoner,
who was out of his own defence, and merely in
the king's protection, and for whom the king and
the state were a kind of re>p>ndent: it is a
thing that aggravates the fault uiuch, for cer-
tainly (my lord of Somerset, let n.e tell yon
this, that sir T. Overbury is the first man that
was murdered in the Towt-r of London, save
the murder of the two youn^ princes, by the ap-
pointment of Richard 3.

Thus much of the oneuco ; now to (he
proofs. — For the matter of proofs, you may
considec that impoisonment, of all offences, is
most secret, even so secret, that if io all cases

of impoisonment you should require testimony,
you should as good proclaim impuuity. — Who
could have impeached Livia by testimony, for
the poisoning of her figs upon the tree, which
her husband was wont to gather with his own
hands? Who could have impeached Parmsetis
for the poisoning of the one side of the knife
she carried with her, and keeping the other
side clean, so that herself did eat of the saint
piece of meat that they did whom she did iov
poison ? These cases are infinite, and need not
to be spoken of the secrecy of impoisonment ;
but wi»e men must take upon them, in these
secret cases, Solomon's spirit, that when there
could be no witnesses, collected the act by the
affection : but yet we are not at our cause, for
that which your lordships are to try, is not the
act of impoisonment, for that is done to your
hands ; all the world, by law, is concluded to
say, that Overbury was poisoned by Weston:
but the question before you is, of the procure-
ment only, and, as the law, termeth it, as ac-
cessary before the fact ; which abetting it ao
more, but to do or use any act or means which
may aid or conduce to the impoisonment.—
So that it is not the buying, nor the making of
the poison, nor the preparing, nor confecting,
nor commixing of it, nor the giving or sending,
or laying of the poison, that are the only acts
that do amount unto the abetment : but if there
be any other act or means done, or used to
give opportunity of impoisonment, or to facili-
tate the execution of it, or to stop or divert an?
impediments that might hinder it, and that it
be with an intention to accomplish and achieve
the impoisonment ; all these are abetments and
accessaries before the fact. As for example, if
there be a conspiracy to murder a man, as ht
journeycth on the way, by invitation, or bv
colour of some business; and another taketb
upon him to dissuade some friend of his com-
pany, that he is not strong enough to make his
defence ; and another hath a part to hold him
in talk till the first blow be given: all these,
my lords, without scruple, aro accessaries to
the murder, although none of them give the
blow, nor assist to give the blow. — My lords,
he is not the hunger alone, that lets slip
the dog upon the deer, but he that lodgetn
him and hunts him out, or stts a train or trap
for him, tint he cannot escape, or the like.
But this, my lords, uttle needetli in this case;
for such a chain of acts of impoisonment* as
t hi-, I think, was net or heard nor seen. And
thus much ot the nature of the proofs.

To descend to the proofs themselves, I shall
k- ep this course : First, I will make a narration
of the fact ksclf. Secondly, I will break and
distribute the proofs, as they concern the pri-
soner. And, thirdly, according to the distribu-
tion, I will produce them, and read them, to
use I hem. So that there is nothing that I shall
say, hut your ioidship shall have three thoughts
or t'ogit'itions to answer it. — 1st. When I open
it, you may take your aim. 2dly, When I dis-
tribute it, you may prepare your Answers
without confusion. And, 3dly, When I pro*

973]

STATE TRIALS, 14 Jams I. 1616.-*? Sir Thomas Overbury.

[974

dace the witnesses, or the examinations them-
selves, you may again ruminate, and re-advise
to make your defence. — And this I do, because
your memory and understanding may not be
oppressed or overioaden with length of evi-
dence, or with confusion of order ; nay more,

impugn, under pretence to do the true part of
a friend, for that he accounted her an unworthy
woman. But the truth was, Overbury, who (to
speak plainly) had little that was solid for reli-
gion, or moral virtue, but was wholly possessed
with ambition and vain-glory, was loth to have

when your lordship shall make your Answer in ' any partners in the favour of my lord of So-
your time, I will put you in mind, where cause merset; and especially not any of the house of
shall be of your oraissiou. the Howards, against whom he had always

First, therefore, sir T. Overbury, for a time, professed hot red and opposition. — And, my

lords, that this is no sinister construction, «\ ill

was known to have great interest and strait
friendship with my lord of Somerset, both in
his meaner fortunes, and after; insomuch that
be was a kind of oracle of direction unto him,
and if you will believe his own vaunt (being
indeed of an insolent and thrasonical disposi-
tion) he took upon him that the fortunes, re-
Stion and understanding of this gentleman
► is well known to have an able teacher)
proceeded from his company and counsel : and
this friendship rested not only in conversation
and business at court, but likewise in commu-
nication of secrets of state : for my lord of So-
merset exercising at that time by his majesty's
rial favour and trust, the office of secretary,
not foibear to acquaint Overbury with the
king's packets and dispatches from all parts of
Spain, i ranee, and the Low-Countries;- and
this then not by glimpses, or now and then
rounding in die ear for a favour, but in a set-
tled maimer; packets were sent, sometimes
opened by my lord, sometimes unbroken unto
Overbury, who perused them, copied them, re-
gistered them, made table-t:dk of them, us they
thought good. So I will undertake the time
was, when Overbury knew more of the secrets
of state, than the council-table did; nav. thev
were grown to Mich inwardness, as they made
a play of all the world be:>ides themselves, so
as they had ciphers and jaigons for the king
and queen, and gieat men of the realm ; things
seldom used, but either by princes to their
confederate*, or at the least, by such as prac-
und work against, or at the Jeatt,

appear to you, when you shall hear tlu.t Ox er-
bury made his brags, that he had won him fhe
love of the lady, by his letters and industry ;
so far was he from cases of conscience in this
point. — And certaiul}, my lords, hiwsot ver the
tragical misery of this poor gentleman, Over-
bury, might somewhat obliterate his faults, yet,
because we are not upon point of civility, but
to discover the face of truth, before the face of
justice, for that it is material to the true un-
derstanding of the state of this cause, Overbury
was naught and corrupt ; the ballads must be
mendedibr that point. — But to proceed : when
Overbury saw that he was like to be possessor
of my lord's grace, which he had possessed so
long, and by whose greatness he had promised
himself to do wonders, and being a man of an
unbounded and impudent spirit, he began not
only to dissuade, but to deter him from the
love of that lady; and finding him fixed,
thought to find a strong remedy : and suppos-
ing that he had my lord's head under his girdle,
in respect of communication of secrets of state,
as he calls them himself secrets of nature; and
therefore dealt violently with him, to make him
desibt with menaces of discovery und the like :
hereupon grew two streams of hatred upon
Over jury, the one from the lady, in respect
that he crossed he r love, and abused her name
(which are furies in women); the other of a
more deep nature from my lord of Somerset
himself, who was afraid of Overbury 's nature,
and if he did bieak from him and fly out, he
w(Hild wind into him, and trouble his whole

ttte anci work against, or at the Jcatt, upon

princes. — But understand me, iny lord, I »liall

not charge yon with disloyalty at this day; I fortunes. I might add a third stream of the

and 1 lay this for a foundation, that there was earl of Northampton's ambition, who desires to

great communication of secret* between you
aod sir T. Cherbury, and that it had relation
to matters of suite, and the great causes of this
kingdom.-- But, mv lord*, at it is a principle
in nature, that the best things are, in their cor-
ruption, the worst, and the sweetest wine
maketh the sourest vinegar; so it fell out with
them, that this execs?, u* I may say, of friend-
ship, ended in mortal hatred on my lord of So-
merset's part. 1 have heard my Jx>rd Steward

be first in favour with my lord of Somerset ;
and knowing 0\erhur/s malice to himself and
to his house, thought that man must be removed
and cut otf, so :n certainty it was resolved and
decreed, that Overbury must die. — That was
too weak, and they were so far from giving
way to it, as they crossed it ; there rested but
two ways of quarrel, assault and poison. For
that of assault, after some proposition and at-
tempt, they parsed from it, as a thing too open

smy sornetiiies in the chancery, that frost and I and subject to more variety of shame; that of
fraud end foul; ai.d 1 may add a third, and ; poi«un likewise was an hazardous thing, and
that is, the friendship of ill nun, which is truly subject to many preventions and caution, e$-
said to be conspinu y and not frieunship. For | penally to such a working and jealous -brain as
it fell out some twelve months or more before ; Oviihurv had, except he was first fast in their
Overt ury's imprisonment in the Tower, that ! hands: therefore the way was fiist to get him
the earl of Somerset fell into an unlawful love ' into a trap, and lay him up, and then they could
towards that uufortr ••ate lady the countess of' not miss the mark. And therefore in execution
Ctsei, and to pro.eed 'o a marriage with her; : of this plot, it was concluded, that he should be
tub marriage and purpose did Overbury muinlv ' designed to some honourable employment in

' i

975]

STATE TRIALS, 14 James I. 1616— Tm& qf the Murderers

[976

foreign parts, and should underhand, by my
lord of Somerset, be encouraged to refuse it ;
and so, upon contempt, he should be laid pri-
soner in the Tower, and then they thought he
should be close enough, and death should be
his bail. Yet they were not at their end, for
they considered, th tt if there were not a fit
Lieutenant of the Tower for their purpose,
and likewise a tit Under- keeper of Overbury ;
1st, they >h<>uld meet with many impediments
in the giving and exhibiting of the poison ; se-
condly, they should be exposed to note and
observation that might d scover them; and,
thirdly, Overbury, in the mean time, might
write clamorous and furious letters to his
friends, and so all might he disappointed. And
therefore, the next link of the chain was to dis-
place the then Lieutenant Wade, and to place
Elwes,a principal abetter to the imprisonment;
to displace Gary, that was Under-keeper in
Wade's time, and to place Weston, that was
the actor in the impoisonment; and this was
done in such a while, that it may appear to be
done as it were in a breath. — Then when they
had this poor gentleman in the Tower, close
prisoner, where he could not escape, nor stir ;
where he could not feed, but by their hands;
where he could not speak or write, but through
their trunks ; then was the time to act the last
day of his tragedy. — Then must Franklin, the
purveyor of the poisons, procure five, six, s€ven
several poisons, to be sure to hit his complexion ;
then must Mrs. Turner,, the lay-mistress of the
poisons, advise what works at present, and
what at distance: then must Weston be the
tormenter, and chase him with poison after
poison, poison in salt-meats, poison in sweet-
meats, poison in medicines and vomits, until
at last his body was almost come by use of poi-
sons to the state of Mithridates's body, by the
use of treacie and preservatives, that the force
of the poisons was blunted upon him ; Weston
confessing, when he was chid for uot dispatch-
ing him, that he had given him enough to
poison twenty men. — And, lastly, because all
this asked time, courses were taken bv Somer-
set, both to divert all the true means of Over-
bury's delivery, and to entertain him with con-
tinual letters, partly with hopes and protesta-
tions for his delivery, and partly with other
fables and negotiations, somewhat like tome
kind of persons which keep in a tale of for-
tune-telling, when they have a felonious intent
to pick pockets and purses. And this is the
true narration of this act, which I have summa-
rily recited.

Now, for the distribution of the proofs, there
are four heads to prove you guilty, whereof
two are precedent to the impoisonment, the
third is present, and the fourth is following or
sul'scquent : tor it is in proofs, as it is in lights,
there is a direct light, and there is a reflexion
of light, and a double light. — The tirst head or
proof is, That there was a root of bitterness, a
mortal malice or hatred, mixed with a deep
and bottomless mischief, that you had to sir T.
Overbury. — The second is, That you were the

principal actor, and had your hand in all those
acts, which did conduce to the impoisonment,
and gave opportunity to effect it, without which
the impoisonment could never have been, and
which could seem to tend to no other end, but
to the impoisonment. — The third is, That your
hand was in the very impoisonment itself, that
you did direct poison, and that you did deliver
poison, and that you did continually hearken
to the success of the impoisonment, and that
you spurred it on, and called for dispatch,
I when you thought it lingered. — And lastly,
• That you did all things after the impoisonment,
; which may detect a guilty conscience, for the
smothering of it, and the avoiding of punish-
ment for it ; which can be but of three kinds.
— That you suppressed, as much as in you was,
testimony ; that you did deface, destroy, clip
and misdate all writings that might give light
to the impoisonment ; and you did fly to the
altar of guiltiness, which is a pardon of murder,
and a pardon for yourself, and not for yourself.
In this, my lord, I convert my speech Unto
you, because I would have you alter the points
of your charge, and so make your defence the
b( tter. And two of these heads I have taken
to m vself, and left the other to the king's two
Serjeants.— »For the first main part, which is
the mortal malice coupled with fear, that was
in you to sir T. Overbury, although you did
palliate it with a great deal of hypocrisy end
dissimulation, evcu to the very end ; 1 will
prove it, my Lord Steward, the root of his bate
was that which cost many a man's life, that is,
fear of discovering secrets ; I say, of secrets of
a dangerous and high nature: wherein tht
course that I will hold, shall be this. I will
shew that a breach and malice was betwixt my
lord and Overbury, and that it burst forth into
violent threats and menaces, on both sides*
Secondly, That these tecrets were not of a
light, but of an high nature. I will give you
the elevation of the pole : they were such, as
my lord of Somerset had made a vow, that
Overbury should neither live in court, nor
country ; that he had likewise opened himself
so far, that * either he or himself must die for
' it :* and of Overbury's part, he had threatened
my lord, * that whether he did lire or die, my
( lord's shame should never die/ but that, * be
' |would leave him the most odious man in the
' world. { And farther, that my lord was like
enough to repent where Overbury wrote, which
was in the Tower of London ; he was a prophet
in that : so there is the highest of the secret.
Thirdly, 1 will shew you that all the king's bu-
siness was, by my lord, put into Overbury's
hands, so as there is work enough for secrets
wliatsoever ; they write them, and like princes
they had confederates, their ciphers, and their
jargons. — And, lastly, 1 will shew you that it
was but a tov, to say the malice was only in
respect he spake dishonourably of the lady, or
for doubt of breaking the marriage, for that
Overbury was coadjutor to that love, and the
lord of Somerset was as deep iii speaking ill of
the lady as Overbury : and again, it was toe

977] STATE TRIALS, H Jambs I. 1616.— of Sir Thomas Overbuy.

[97$

late for that matter, for the bargain of the
match was then made and past ; and if it had
been no wore than to remove Overbury for dis-
turbing the match, it had been an easy matter
to have landed over Overbury, for which they
had a fair way, but that would not serve.
Aud, lastly, * Periculum periculo vincitur:' to
go $o far as an impoisonment, must have a
deeper malice than flashes, tor the cause must
have a proportion in the effect.

For the next general head or proof, winch
consists in the acts preparatory, or middle acts,
they are in eight several points of the compass,
as I may term them.

1st, There were divers devices and projects
to set O^erbury's head on work, to dispatch
him, and overthrow him, plotted between the
cdntitess of Essex, and the earl of Somerset,
and the earl of Northampton, before they fell
upon the impoisonment ; fur always before
men fix upon a course of mischief, there will
be some reflection' : but die he must one way
or other. 2dly, That my lord of Somerset was
principal practiser, I must speak it, in a most
perfidious manner ; to set a trap aud train for
Overbury, to get him into the Tower, without
which they durst not attempt the impoison-
ment. 3dly, That the placing of the Lieute-
nant Elwes, one of the iinpoisoners, was done
by my lord of Somerset. 4thly, That the
placing of Weston the Under-keeper, who was
the principal impoisoner, and displacing of
Can*, and the doing all this within the space
of fifteen days after Overbury's commitment,
was by the means and countenance of my lord
of Somerset : and these were the active instru-
ments of the impoisomuent, and this was a bu-
siness the lady's power could not reach unto.
SthJy, That because there must he a cause of
this tragedy to be acted, and chiefly because
they would not have the poisons work upon
the sudden, and for that the strength of Over-
bury's nature, on the very custom of receiving
ibe poisons into his body, did overcome the
poisons that they wrought not so fast ; there-
fore Overbury must be held in the Tower, as
well as he was laid in : and as my lord of So-
merset got him into the trap, «o he keeps him
hi, and amuseth him with continual hope of li-
berty, but diverted all the true and effectual
means of his liberty, aud makes light of his
sickness and extremities. Gthly, That not
only the plot of getting 0%*erbury into the
Tower, and the devices to hold and keep him
there, but the strange manner of the close
keeping of him, being in but for a contempt, was
by the device and means of my lord of Somer-
set, who denied his father to see him, denied
his servants that offered to be shut up close
prisoners with him, and in effect handled it so,
that he made hiin close prisoner to all his
friends, and exposed to all his enemies. 7thly,
That all the advertisement the lady received
from time to time, from the Lieutenant or
Weston, touching Overbur/s state of body
and health, were ever sent nigh to the court,
ikoufch it were in progress, and that from my

VOL. II.

lady ; such a thirst and listening he had to hear
that he was dispatched. Lastly, That there
was a continual negotiation to set Overbury**
head ou work, that he should make some offer
to clear the honour of the lady, and that he
should be a good instrument towards her and
her friends ; all which was but entertainment :
For your lordship shall see divers of my lord of
Northampton** letters, (whose band was deep
in this business) written I must sny in dark
words and clauses, that there was one thing
pretended, and another thing intended ; that
there was a real charge, arid somewhat not real ;
a main dn.t and dissimulation. Nay, farther,
there be some passages which the peers, in
their wisdoms, will discern to point directly at
the impoisonment.

And now for producing of my proofs, I wi'l
use this course : Those examinations that hare
been taken upon oath, shall be here read; oud
the witnesses also 1 have caused to be here,
that they may be sworn, aud to justify or deny
what they hear read, and to diminish or add
to their examination* ; and beetles that, my
lord of Somerset, and you my lords the pens,
may ask them what farther questions you please.

II. Payton, servant of sir T. Overbury, now
of his father, examined before the Lord
Chief Justice.

He saw a letter of his master's, whose hand
he knew, to my lord of Somerset, wherein were
these words, ' If I die, my blood lie upon you.'
And in that or another ietter there was this
clause, ' My lord, you are now us good as your
' word, you have kept your vow to me/ More-
over, that in the privy -j»allery at White-hall,
my lord of Somerset coming late to his cham-
ber, met there sir T. Overbury ; ' How now/
said my lord, < are you up yet V ' Nay/ an-
swers sir T. Overbury, ' what do you here at
' this time of ni^ht ? Will you never leave tho
' company of that base woman? And seeing
' you do so neglect my advice, I desire that to-
( morrow morning we may part ; and that you
' will let ine have that portion you know is due
' to me ; and then I will leave you free to
€ yourself, to stand on your own legs.' My
lord of Somerset answered, ' His legs were
* strong enough to bear himself ;' and so de-
parted in great displeasure. And to his cer-
tain knowledge, they were never perfectly re-
conciled again. Aud being asked how he heard
this discourse, he said, it was in the dead of the
night, and he, being in a room within the gal-
lery, heard all that passed.

H. Puyfon. I acknowledge every part of
this examination to be true: And more, That
my master being in the Tower, he sent a letter
by Weston to me, to carry to my lord ; and
withal, to deliver my lord this message, That
that powder he had sent him had made him
very sick, and given him in one night 60 stools
besides vomits. This latter I carried to the
court, and delivered to Mr. Pawliiis to carry
in to my lord, who was then in his chamber.
My lord presently came out ; asked me how

*:i r

079]

STATE TRIALS, H James I. 1610.— Trials qflhe Murderers

[9bO

my master did. I told him very sick; and I L. Zouch. I affirm this relation of my lord
withal, this message how. the physic had wrought j Coke's to be true.

with him. My lord smiled, and cried pish: and : Q- ti r*. u j r *.

so turned him away. S,r Thomas Overbury s second Letter to ray

J ' lord Somerset.

L. Davis, sometime servant of sir T. Ovcrhury, €S ''""■* c°mes under seal ; and therefore shall

now of sir H. May, his Inanimation before ; De M*'- You told my brother Lidcote, that

the lord Coke.

he writ that the lord of Rochester was even
with him : But he thinks he (i. e. the lord Ro-
chester) never saw those passages.

Lord ot'Som. I pray you, my lords, note he
says, I never saw those passages.

Mr. Att. It is true : For those letters were
lost ; but after found by him, who knew them
to be his master sir T. Overbury's baud.

Sir Thomas Overbury's first Letter to ray lord

Somerset.

" Is this the fruit of my care and love to you ?
Be these the fruits of common secret*, common
dangers? As a man, you cannot sutler me to
lie in this misery; yet your behaviour betrays
you. All I intrent of you is, that you will free
aie from this place, and that we may part
friends. Drive me not to extremities," lest I
should say something that you and I both re-
pent. And I pray God "that you may not
repeat the omission of this my counsel, in this
place, whence I now write this letter."

L. IVcnttcorth. How did you kuow these
letters were sent from hiin to my lord of
Somerset ?

L. Coke. They were found in a cabinet,
among some other things, kit in trust by inv
lord of Somerset with sir R. Cotton; And thus
they were discovered; sir R. Cotton, fearing
searches, delivers them to a friend of his in
Ilolborn, one Mrs. Fameiorth; she, to the in-
tent they might be safely kept, sent them to a
merchant's house in Chcapside, where some
nine months before she had lodged, and desired
that they might safely be kept tor her, pretend-
ing they were some writings that concerned her
jointure. On St. Thome's day she herself
comes to have them again, saving, she must
carry them to her counsel to perus>c. He said,
' If you will stiller me to open it before you,

* and that there be nothing else, you shall have
' them/ But she by no means would consent
to die breaking of it open. Then he answered,

* It is a tr>iuhl<»'nuic time; I will go to my
1 Lord Chief Justice, and if he find no other
' writings than sue!, as concern you, you shall
' have them aj»ain.' So comiug to my chamber,
aud not finding me within, (lor I was goue to
St. Paul's to tli«5 sermon) he went to my lord
Zouch, out- of the appointed commissioners for
this cause ; \\\.o hi;n>elf alone would not break
it up, but came to St. Paul'* to me; where in a
by-room we broke it up, and in it found these
letters, and divers from my lord of Northamp-
ton, besides many other papers.

meant great persons; Julius, the king, Dominic.
my lord of Northampton, Unclius, my lord of
Canterbury.

The rest of the Letter.
" And yet pretend the reason why you seek
not n»y liberty, to be my unrevtuud sl)le;
whilst, in the mean time, you sacrifice me to
ypur woman, still holding friendship with those
that brought me hither. You bade my«brotl*r
Lidcote keep my desire *of liberty secret : Yet
this sh'dl not serve jour turn ; for you and I,
ere it be long, will come to a public trial of
another nature. I upon the rack, aud you it
your ease : and yet I must say nothing ! when
I heard (notwithstanding my misery) how you
went to your woman, curled your" hair, pre-
ferred Gibbe into the bed -chamber, aud in tie
mean time send me nineteen project*, how I
should cast about for my liberty; and giveiae
a long account of the pains you have taktn,
and then go out of town. I wonder to see bow
you should neglect him, to whcin such secrets
of all kinds have parsed : and sutler my mother
and sisters to lie here in t-jwn, expecting my
liberty ; my brother Lidcote to be m a lnauucr
quite overthrown, in respect of my imprison-
ment ; and yet you stand stupid : Nor have uei-
ther servant nor friend HuTered to come to me.
Well, all this vacation I have written the story
betwixt you and me : I low I have lost my
friends for your sake; what hazard I have run;
what secrets have passed betwixt us; how after
you had won that woman by my letters, and
then you concealed all your a iter- proceedings
from me; and how upon this there came many
breaches betwixt u$; of the \ow you made Ut
be even with me, and sending fi>r me twice
that day that I was caught in the trap, per-
suading me that it was a plot of mine eueinits
to send n:e beyond stn; and uming me not to
accept it, assuring me t0 frcc mc (rom an^ |0;,g

trouble. On Tuesday I made an end of llii*»
and on Friday sum it "to a fiiend of mine under
eight seaU; and if you persist still to ute mt
thus, a^ure your^tlf it shall be puhislicd.
>V hither I live or dip, your &haine shall neur
die, but ever remain to the world, to make you
the most odious man living."

H. Pay ton and L. Davis. We both, upon
our oaths, know this to be sir T. Oierbury'*
hand.

Sixcocks's Examination before my lord Coke,
writ with his own hand.
He says that Weston many times, when sir T.

!K1]

flTATR TRIALS, H James I. IfilG.— of Sir Thomas Overbuy.

[9S2

Orerbury was in the Tower, told him, That . was theirs: for they purposed nt first to have
my lord of Somerset charged him to look to i taken nvmy his lite by assault. And Franklin

V

Overbury well; for if ever he came out, one
of us two must die.

L. Hoi/I. 1 would fain know u her her Weston
were examined, or no.

I*. M'eniuwrth. How lon» is it since this
familiar acquaintance betwixt Snncocks and
Weston ?

Simcocks. He and I were ot anticnt and
familiar acquaintance lone since.

Mr. Attorney. Weston had continually re-
cess to my lord, had rewards from him: My
lord charged him tg look to Overbury well. It
could not be his marriage that made him so
much fear; but what the secrets were that
caused it, it is not the work of this day. Now
to shew that the greatest matters of state were
communicated to him, read Davis.

L. Datit examined. There was a packet of
letters, and sealed, which as he takes, came
from sir J. Di^by, directed to the king ; and
Jik master sirT. Overbury opened it, took brief
notes for my lord of Somerset, and sealing it
again, sent both the notes nnd packets to him.
Another of this he saw his master had at New-
market from sir Thomas Kdinundes to the kin?,
out of which, after he had taken extracts, he
sealed it up auain, and sent both back by this
examinant to my lord Somerset.

Mr. Attorney. I will not now, my lords,
endeavour to pre*s the greatness of this offence:
Bat 1 urge it thus, That you may «ee there
were no mean secrets betwixt my lord and sir
T. Overbury, that might rather cause him to
fear him, than the hindrance of hi« marriage:
If that had been it alone, his going beyond sen
would have served the turn.

L. of Stmt, exam, says, That amongst imny
other characters for names, that ptwed between
sirT. Overbury imd him, Simonist was for sir
II. Ncvil, Wolfy for the now lord treasurer,
Ductius for mv lord of Canterbury.

Mr. Attorney. In pood faith, these two
made plays of all the world besides themselves;
Lut though it were a play then, it hath proved
tragical since.

A Lr.TTER of my lord of Northampton to my
lord of Soinci ret.

" Now all is concluded about the form of the
r.oa-altitv, I doubt not but Cod will bless the
next bargain. I hope hereafter to find better
pen and ink in this lady's chamber. Be still
happy. Underneath subscribed li. Northamp-
ton, and I am witness to tlus bargain. Frn.
Howard."

This Letter was shewed my lord of Somerset,
and he confessed the hand.

Mr. Attorney. Tor the second branch that
I menu to follow ; and that is. That you usfd
the means to expose him to the Tower, and
there to keep him close prisoner. It is a chain

°f e*?nl link'* ttnd *nn" oe shewed you upon
<*tht points of the compass. But before we
cw»to these, it is to be considered, tint as
"<> consulUtKHi it ripe in an hour, to no more

tells you the cause of this malice.

Franklin examined befuv my lord Coke, but

not upon oath.
He sakh, That mv lady Somerset said the
cutibc of this hatred of sir T. Oierhury \v;is,
that lie would pry so far into my lord uf So-
merset, that he would put him down.

Sir D. Woodks examiocd before lord Coke.

He faith, My lady Somerset knowing there
ivas some discontent betwixt Overbury and him,
in respect of u suit that he crossed him in, told
him, that if he would kill sir T. Overbury he
should have 10U0/. and besides, she would
make his greatest enemy to become bis greatest
friend: and he knew uo enemy he had in court
but my lord of Rochester. He answered, That
if in y lord of Rochester would give him his
hand, or but pass his word, if he did it, that he
should escape, and have his pardon, he would
do it. Upon this she paused, and desired
some time to give her answer ; and when he
came again to iter, she told him that could not
be : but promised till favour possible unto him,
and warranted him, to go on upon her life.

L. ot' Sam. exam, sail h, It was once resolved
somebody in court should fall out with Over-
bury, and offer him tome affront ; but that was
not followed.

Mr. Attorney. Note, my lords, he does not
fciy it was disliked. And now to the puddle
of bloud : the tirsi link of which is, that the
means to entrap (hcibury for the Tower, was
by the means of my lord of Somerset.

Sir T)ui)i.r.Y Dices sworn.

Sir T. Overburv once told me, that he went
to undcitake the employment offered him to go
beyond .»ea ; but afterwards he sent me word
by sir H. Man-el. that be had changed his
mind. And sir R. Man?el told me farther, that
he saw a letUr fiom the lord of Somerset to
Overbury, that dissuaded him from that course.
Seeing Mr. Attorney hath csdhd me so far out
of the country for this small testimony, I wish
sir R. Mans J were here to justify it.

My lord of Somerset's Dici.uiatiox in writing

to the king.

Rein* told by my Lord Chief-Justice that I
was indicted, and v/a* shortly to expect my Ar-
raignment, I did not then bcf:ivc him ; for I did
not lo.ik for that way. Your mijtsty hath
three kingdom*, wherein to exm Im* the piero-
gntive of your power, and but few tlv.it taste ot
tliefnM of \onr ia\our»; m which number 1
did think myself, if not the firif, \ct inferior to
veryfivv. And having cmnmiltrrl no oifeiico
acam*t your person, ikt the sate, T l.'.pc your
majesty will nor for this biins: me to a public
trial, which Mr my reputari i/s cause, 1 hum-
hlv desire to avui l". Ur?.ce truly pen may bo
a beneiit ; for it is not enough to give life, and
not to save reputation. But if I must come to
mv tiial, knowing the prc-umpfions maybe
strong ocain-rt me, in respect 1 consented to,

953]

STATE TRIALS, 1 4 Jambs I. 1616.— Trials qftlx Murderers

[9S4

and endeavoured the imprisonment of sir T.
Overbury (though I designed it for his refor-
mation, not his ruin), 1 therefore desire your
majesty's mercy, and that you will be pleased
to give me leave to dispose of my lands and
goods to my wife and child, and graciously to
pardon her, having confessed the fact. For
myself, being uncertain how I shall be judged
upon presumptions, I humbly desire that in the
mean time jou will be pleased to give ray lord
Hays and sir Robert Carr leave to come to me.

Mr. Attorney. The second liuk is, how that
Eiwes came to be Lieutenant of the Tower by
your means : and yet that must have a cokmr;
my lord of Shrewsbury and lord chamberlain
inuat prefer him to you as their friend, though
it was resolved before he should have the place.

Sir J. Elwes examined, but not on oath. lie
saith, 8;r T. Mouscm told him that Wade was
to be removed ; and that if he succeeded sir
W. Wade, he must bleed, that is, give 2000/.
And ten days after Wade was removed he
came into the place, and paid 1400/. of the
money at his uncle alderman Elwes's house to
Dr. Cain plan.

Mr. Attorney. You may see lifer had ciphers
for money. He must bleed ; a strange pre-
sage ! And as it is impossible to serve God and
nun union, so in that kind it is liard to serve a
king.

S:r Thomas Man son examined, but not on
oath, saith, my lord of Northampton, upon the
displaciiig of Wade, moved the king for sir J.
Eiwes ; and that he directed sir J. Elvves to go
to the lords of Shrewsbury mid Pembroke, to
move my lord of Somerset to speak for him to
the ki:i£.

Sir Jercis Ehccs's cxaminat. When it was
resolved Wade should be removed, and he to
succeed him, then he was advised to desire my
lord of Somerset to move for him; win Mi he
did accordingly : hut took that only to be but
for a colour, because it was resolved before.

Mr. Attorney. Now the third link concerns
the placing of Weston for his keeper.

S;r Thomas Monwn exam. Saith, he recom-
mended Weston to the service of sir J. Elwes,
ami to keep sirT. Overbury, upon the countess
of Somerset'* entreaty : and farther saith, that
my lord of Northampton was acquainted with
the placing of him.

II. Wtston exam. My lord and ladv Soraer-
set gave good word* of him to the lieutenant.

L. of &>m. exam, lie denies the knowledge
of Weston, either before his coining into the
Tower, or since.

Simci'ckii exam. Weston, during the time
sirT. 0\eibury was in his keeping, came often
to my lord, had much nn»:jcy of him, and won-
dereJ sir T. Overbury had so good an opinion
of my lord: ami thought he had not so much
wjt as the world esteemed, for there was no
man hindered his liberty but he : and when-
ever he came to inv lord, he might use such
■leans as Kawlins his man must not know,
[Id thu interim a scaffold broke, and there

was a great noise and confusion ; but after
silence was proclaimed, all hushed and quiet.]

Mr. Attorney. All the cotifessious of Westoa
were taken before conviction : and these two
last witnesses are merely to his denying the
knowledge of Weston. Now for the fourth link,
which is the placing and displacing officers.

Sir Jcrvis EUes exam. Saith, that Overbury
was committed April 30th, und May 6th him-
self came to be Lieutenant of the Tower ; and
that Weston was preferred to be sir T. Over-
bury's keeper May 7 th ; and that all this tine
he served, he never had wages from him.

Mr. Attorney. Now the fifth link or point
of the compass I promised to shew you, was,
that tiiis must not be done suddenly, but by
degrees ; and so he must be poisoned lei>urelv,
to avoid suspicion. And in the mean space
you entertained his father and mother with fri-
\oious hopes; and yet indeed hindered and
made opposition (but underhand) to all the
means that were used for his delivery.

Mr. Overbury the father sworn. After my
sou was committed, I heard that he was very
sick ; I went to the court, and delivered a pe-
tition to the king : the ell'ect whereof was, that
in respect of my sou's sickness some physician*
might have access unto him. The king an-
swered, that his own physician should go to
him : and then instantly sent him word by sir
W. Button, that his physician should presently
go. Upou this I oidy addressed myself to my
lord of Somerset, and none else ; who said my
son should be presently delivered, but dissuaded
me from preferring any more petitions to the
king : which notwithstanding, I (seeing his
freedom still delayed) did deliver a petition to
the king to that purpose; who said I should
have a present answer. And my lord of
Somerset told me, he should be suddenly re-
lieved ; but with this, that neither I nor inv
wife must press to see him, because that might
protract his delivery ; nor deliver any more pe-
titions to the king, because that might stir lib
enemies up against him* And then he wrote
a letter to my wife, to dissuade her from auy
longer stay in Loudon.

My Lord of Somerset'.'* Lf.ttfr to Mrs. Over-
bury.

" Mrs. Overbury ; Your stay here in town
can nothing avail your son's delivery; therefore
I would advise you to retire into the country,
and doubt not before your coming home you
shall hear he is a freeman."

Mr. Overbury. Then after my son's death,
he writ another letter to me.

My Lord of Somerset's Letter to Mr. Over-
bury.
" Sir ; Your son's love to mc got him the
malice of many, and they cast tliose knots <»u
hie fortune that have cost him his life; so, in
a kind, there is none guilty of his death but I :
and you can have no more cause to comousse-
rate the death of a son, than I of. a friend.
But though he be dead, you shall find me as
ready as ever I was to do all the courtesies that

085]

STATE TRIALS, H James I. 1610 — of Sir Thomas Ocetinay.

[986

possibly I can to you and your wife, or your
children. In the mean time, 1 desire pardon
from you and your wife tor your lost son,
though I esteem my loss the greater. And for
his brother that is in France, I desire his
return, that he may succeed his brother in my
love."

Mr. Attorney. By this you see my lord's
dissimulation. And I think he was a piece of
a lawyer, by his insinuating with his next kin-
dred, for fear of appeals. Now to come to
the sixth link, which shews how light my lord
of Somerset made both of sir T. Overbury's for-
tunes and sickness, read Simcocks.

Simcocks exam. Saith, That Weston told
him he wondered sir T. Overbury should have
so great confidence in my lord of Somerset,
and think that he loved him so well ; for he
knew that he could not abide him, and thought
of nothing less than his liberty.

Sir John Lidcote sworn. Saith, he desired
my lord of Somerset that either he or sir R.
Kiiligrew might hare leave to see sir Thomns
Overbury in his sickness, winch my lord ob-
tained from the king. And so they had a war-
rant from my lord of Northampton, and some
other counsellors, to see him ; and found him
very sick in his bed, his hand dry, his speech
hollow. And at this time he desired me to
write his will; I proposed to come to him
again the next day. Now being ready to de-
part, the Lieutenant going out before, Overbury
asked me softly this quest ion, Whether Somerset
juggled with him, or nut ? But I then told him,
as I believed, that 1 thought not. But the
Lieutenant looking back, and perceiving that
some whimpering had pusscd, swore that I had
done more than I could justify. But after-
wards, coming to pn ss my lord of Somerset
about sir T. Overbury, I perceived he dealt
not plainly with him. And once speaking with
my lord about him, he gave a counterfeit sigh,
(as this deponent conceived) for at that instant
lie smiled in my face.

Mr. Attorney. The seventh liuk is to shew
you the manner of his keeping; which was
close prisoner in tire Tower, his offence being
only a contempt : And who was the author of
this, read sir Thomas Monson.

Sir Thomas Monson examined, but not upon
oath, saith, My lord of Northampton and my
lord of Somerset gave directions to the Lieute-
nant of the Tower to keep him close prisoner.

L, Davis exam. Saith, That he was a suitor
to my lord of Somerset, that he might wait upon
his master sir T. Overbury in the lower, though
he were shut up with him. But my lord an-
swered, He shortly purposed to procure his
total liberty, and this might hinder it.

Mr. Attorney. Now the eighth and last link
is, in the iuterim that Overbury in die Tower
was plyed with poisons, my lord thirsted after
the news, to know what became of him, and
continual posts went between him and my lady ;
and all this while bore liiin in hand with other
pretences.

Franklin (bat not upon oath) saith, That

being with my lady Essex, she told him that she
had that day received a letter from my lord of
Rochester, wherein he writ, That if Weston
did not presently dispatch, sir T. Overbury
would be out.

Sir Jervis Elwes exam. Saith, He received
divers letters from my lady Essex, wherein she*
desired to know how Overbury did, that she
might certify to the court.

Lord of Sum, exam. Sail li, That there passed
many letters betwixt my lady and him, but not
concerning Overbury. But tlien desired that
this point might be altered ; for it might be
that some letters concerning Overbury might
have then past betwixt them.

Mr. Attorney. My lord knew not whether
any of these letters were extant, and therefore
desired that this might be altered.

Lou billy an apothecary, a Frenchman, saith,
That coming to my lord of Somerset, he asked
him of Overbury, and how he did? and he said,
ill. Another time also he sent for him to enquire
about Overbury ; and then he answered nim,
That he was ill, but hoped he might recover.
What, says my lord, do you think he would re-
cover if he were at liberty ? And he answered,
yes. Again, my lord sent for him a third time;
and carrying him into the gallery at Whitehall,
asked him how Overbury did. He answered,
He was very sick : And farther added, He found
him ill before the 25th of June, that he came to
him.

L. of Som. exam. Denies that ever he saw
Loubell but once at Theobalds.

Mr. Attorney. Here again you see my lord
falsifved : But it seems, imagining or not know ing
that Loubell coidd say more against him than
he hath done, he denied the knowledge of him,
as he did of Weston.

L. .Coke. It was doubted Loubell might he
a delinquent ; and therefore I durst not examine
him upon oath, no more thnn I did Franklin.
But when in their testimony they accuse them-
selves, it is as strong as if upon oath.

Mr. Attorney. Now in respect Orerhury
had a working brain, my lord of Northampton
must in shew negotiate about his delivery, and
the terms of his coming out, whilst they in-
tended his poisoning : That was real, and the
other but in pretence.

My lord of Northampton's First Letter to my
Lord of Somerset.
" In this business concerning Overbury there
must be a main drift, and a real charge: You
may imagine the meaning/'

My Lord of Northas&ptou's Second Letter to
my Lord of Somerset.
" I yesterday spent two hours in prompting
the Lieutenant, with as great caution as I could,
and find him to be very perfect in his part.
And 1 long exceedingly to hear his report of
this adventure."

My Lord of Northampton's Third Letter to
my Lord of Somerset.
" You need not use many instruments, «o
long at I am in town, with the Lieutcnaut.?

as7j

STATE TRIALS, HJaAesI. I(il6.— Trials cf the Murderers

[9Sb

Jtly J/jrd of Xortlmmptou's Fourth Lehtr Co
my Ixird of Somerset.

" I cannot deliver uith what caution and dis-
cretion the Lieutenant hath undertaken Over-
bury. 15nt tor his couclii-uii, I do und ever !
wjll love liirn the better; which was this, That
either Overbury shall recover, and do good of-
fice-» betwixt my lord of Suffolk and you ; which
if lie do not, you shall have reason to count him
a knave : or else, that he shall not recover ut
all, which lie thinks the most sure and happy
change of all ; for he finds sometimes from !
Overbury many flashes of a strong affection to
some enemies of his."

L. of Sow. I acknowledge these Letters to i
be my Lord of Northampton's ; and all those
that 1 sent to him were delivered me after his
death by sir It. Cotton : ail which the evening
before my commitment to the dean of West-
minster's, I burnt. ,

Mr. Attorney. These Letters of Northamp-
ton were found in the box sir It. Cotton pave
Mrs. Farnforth. And here my part ends : and
that that rests behind, I leave to the two Ser-
jeants.

L. H. S. My lord, you have heard vihat
hath been urged against you, and may imagine
i hat there rests much behind : And therefore
V.>« had best confess the truth ; otherwise you
will but more and more wind in yourself.

L. of Som. My lord, I came with a resolu-
tion to defend myself.

After this my L«>rd Hi^h-Stcward and the
vest of the lords retired themselves.

Serj. Montague. May it please your grace,
my Lord High-Steward of England, it falls u
my part to discover tlio-e secrets that were con-
current and present with the murder of sir T.
t Kcrbury. And there he throe thinn* that
make evidently that my lord of Someisi-t whs
the principal procurer: 1. A powder that was
*cnt sir T. from your own hand, which was
poison, and taken by him. 2. Poison in tarts,
which yi»u occasioned to be sent. 3. That you
thirsted after the success, and wondered that he
was no sooner dispatched. Ilnw the first uene-
ral light of this poisoning came out, Mr. Attor-
ney yesterday excellency observed that it was
by a compliment ; so now I shall shew how out
or tlit compunction of an offender's heart these
came to he discovered : Franklin confesses the
• poisons he bought for this purpose. :md the trial
that he made of them l>cfore they were sent.
And 1. For the powder, it was sent in a letter
written with my lord's own hand to Overbury :
And you writ that it would make hiin a little
■-u'k (which it did in a high decree :) and that
upon tliis you would take occasion to speak lor
him to the 'king. And this letter, with the pow-
der, you sent to him by Davis ; and the powder
m •* p rison. 2. For the poisoned tarts : At
hiti you sent them cood, to disguise the bad ;
W (i Iter came the poisoned tarts which vou
«ul turn. And to make this uppear that they
i nine fioin you, continual posts ran between
Hvu «ud my lady ; and she writes to the Lieu-
'.vtuntu " I wai bid to tell you, Thaft in the

tarts and jellies there are letter?; Lot in the
wine none : And of that vou mav take vour-

» » •

self, and give your wife and children : but of
the other, not. Give him these tarts and jelly
this night, and all »bsill be well/* Ami it ap-
pears that the It tit n did signify poison. 3. The
third ch.trgc tiuri I lay upon yen, is, That you
writ to inv lady that you wondered these things
were not dispatciied. She presently sent fur
Franklin, and shewed him your letters; which
he read, and remember* the words. She then
al»o sent for Weston to dispatch him quickly:
who answered, That lie had ulieady given him
as much as would poison twenty men. And in
all these things, my lord, I shall prove you as
guilty as any whosoever hath been formerly
arraigned : And Weston, upon his Arraign-
ment, athrmed all these things to be trne. Now
to the proof: He sends a petition to the lord
Coke, to desire to speak with him, the very
night before Klwcs's arraignment, he knowing
nothing of it ; and says, That his conscience
troubles him so, that he cannot sleep, and there-
fore desires to reveal something to him ; and
that until he had done it, he could never be at
quiet.

Franklins exam. Mrs. Turner desired him
to buy some of the strongest poisons he could
get; which he did, and brought them to Mrs.
Turner and my lady, and at that time they
both swore him to secrecy. And afterwards
he perceived that these poisons were sent to
the Tower ; and amongst the rest u kind of
white powder called arsenick, which she told
him was sent Overbury in a letter; and after
shewed him, and told him of many more poi-
sons that were sent, and to be sent by Weston
to Overbury. And those poisons which my
lady shewed hiin, were wrapped in a paper,
written with a Itom.in hand. And tliev trved
some of the (jknjds upon a cat, or a dog, which
was wonderfully tormented, and died.

]Va,/on'i exam. My lady told him that he
should be well rewarded; but before she could
procure that, the fact must be done : And that
he hud already given him as many poisons as
would poison twelve men.

]/J. of Sum. exnui. Saith, That he caused a
vomit to he sent hiin at his own request, which
was a white powder ; and it was the .«ame that
he had had before of sir K. Killcgrcw, and sent
by Jtawlins; and it mav be thut tins second seul
by Davis was iu a letter.

fL. Davit exam. Saith, That three weeks
alter sir Jervis Khvcs came to be Lieutenant of
the Tower, my lord sent, in a letter by him, a
white powder io sir T. Overbury ; and that it
would nmkc him a little sick, so he miglit have
the better opportunity to speak for hiin to tlu?
king ; and he saw thu letter. Next day Wes-
ton told him how sick Overbore had been, and
shewed him what loathsome stutf he had vo-
mitted, which he would hn\e had to have car-
ried to the lord Somerset ; hut Weston would
not let him, saying, It was an unfit sight to shew
him.

H. Pay ton exam. Saith, That thii powder

989] STATE TRIALS, H James I. 1610 tf Sir Thomas Overbuy . [990

gave sir Thomas fifty or sixty stools and vomits I
lor four or five days. >

Serj. Mont, Four several juries liavo found
that this powder was poi»on, and of this poison
sir T. Overbury died; now for the proof of the
poisoned tarts.

La. of Sam. exam. She sailh, She knoweth
of no tarts were sent sir T. Overbury, but ei- |
ther from herself or my lord. '

Sir Jervis Elzcei exam. Saith, By letters \
my lady meant poison, but the word was then
used to clear his eyes.

The Lady Somerset's Letter to Sir Jervis

Elwes.

" I was bid to bid you say, that these tarts
cam* not from me ; and again, I was bid to tell
you, thut you must take heed of the tarts, he-
cause there be letters in t lie no, and therefore
neither give your wife nor children of them,
but of itiie wine you mav, for there are no Ut-
ten in it ; sir T. Monsou will cume from the
court this day, and then we shall have other
news."

La. of Som. exam. Saith, That by letters
she meant poison.

Serj. Mont. Now for my lord's haste to spur
this on, (and here I end) read Franklin's Exa-
mination.

Franklin exam. Saith, in a letter which
my lady told him was sent her from my lord,
third were these words, * That he wondered
'things were not yet dispatched,') and that he
thinks was meant about Overbury, by reason
of her then speeches to him, and present send-
ing for Weston.

Serj. Crtn\ My part is now to discover
those acts that succeeded the fact, and then
my lord begins to sew lig-leuvcs: J. Practices
to suppress all testimonies. 2. To surprize all
letters. 3. To get a pardon, and de>ires a
pattern of the most large pardon. Now for
your practice to suppress the testimony of
Franklin ; you come irom court and tell my
lady, that Weston was apprehended; theu
Mrs. Turner sends to Fraukliu to come to my
lady at one o'clock at night. Thin my lady
tells him thai Weston had confessed all, and
that we shall all be hanged ; and at that time
did again {jive . him another oath for secrecy.
And during this dialogue, she went into an
inner room, to speak with one (whom he took
to be my lord or' Somerset) ; when she came
out, then she instructs Franklin what to say, if
he were examined, but by no means to confess
the knowledge of her, or of Mrs. Turner : That
the Jordv will promise him, upon his confession,
hope of a pardon, but thut hy no means he
should believe their fair words ; for if ha did;
then they should all be ha lined. Now for the
course vou took in suppressing of letters: Law-
rence I)avis, after his master's death, made
suit to serve my lord, then his suit was reject-
ed ; bat last summer, fearing this might break
out, sends Hawlins to him, proifers him all
courtesy, and desires that he would send to him
all those letters and copies of letters^ which

had past between sir T. Overbury and him.
Davis did so ; and upon this my lord gave him
SO/. After Weston and Mrs. Turner were
committed, there was a trunk, wherein were
many letters : Tins trunk stood at the house of
Weston's son's master. For this trunk, my
lord (after he was commanded to forbear the
court) makes a warrant to the constable to
break it open, and to send unto him those bun-
dles of writings that were in it ; pretending
they were certain bonds and writings belonging
to Mrs. Hide, a sister of* Mrs. Turner's. Ac-
cording to this direction, those letters that were
in the trunk were brought unto him. Now for
those letters that passed betwixt my lord of
Northampton and you ; thirty of those you had
sent him, were delivered you after his death by
sir It. Cotton ; and all these the night before
your commitment to the dean of Westminster
you burnt. For those letters of Overhury's
that you had, sir R. Cotton advised you not to
burn, hut keep them : And all of them beinj;
without dales, Cotton told you there, might he
such dates given them as would be much to
your advantage : So you gave him order for
that purpose, to give dates to those letters.
According to your directions he did so; but
not till after Weston's Arraignment: And theu
understanding at what time the poisons in the
indictment a ere said to be delivered, he dated
some of them v* ith a purpose to cross the In-
dictment: and some of the letters he razes,
some pastes, some pares, as they were advanta-
geous or disadvantageous to him; and all this
to obscure the fact. My next aggravation is,
that my lord went about to get a pardon : and
that precedents should be sought of the largest
that ever were granted; and they were brought
him. Why should he seek this, but to be freed
from this murder? And in the precedent of
Henry Bth's pardon to cardinal Wolsey, after
manv oifcnccs were forgiven, both in the be-
ginning and ending, then in the midst come in
all treasons and murders. Lastly, now I urge
this declaration you sent to the king ; wherein
you seemed to doubt yourself, because that you
endeavoured und consented to the punishment
of sir T. Overbury: ami in respect you had
formerly been so much in the king's favour,
thought you might expect mercy : and seeing
you had never done any offence against the
king, nor the state, hoped that yon should
never be called in question for this ; Rut if you
should, then you implored grace for your wife :
but you never sought a pardon for her, as you
did for yourself. And then, lastly, vou desire
to have leave to dispose of your (anas to your
wife and child. Now for the proofs of all this
that 1 have said, first read Franklin, for the
suppression of his testimony.

Franklin's exam. When my lord of Somer-
set came to town, after Weston's apprehension,
he (Franklin) was sent for to the Coot- Pit ; and
there my lady swore him again to secrecy, told
him Weston was taken, and that it was hkely
he should he so shortly, and that they should
all be hanged. Then retiring into an inner-

991]

STATE TRIALS, 14 James I. 1616.— Trials qf the Murderers

[992

room, to speak with one, (whom he verily be-
lieves to be my lord of Somerset) she came
again, and told him, that die lords, if they exa-
mined him, would put him in hope of a pardon
upon confession : But, said she, believe them
not; for when they have got out of you what
they would, we shall all be hanged. Nay,
saitl), Mrs. Turner, madam, I will not be hang-
ed for you both.

Ma&y Erwin's Examination, (not upon oath)'
Mrs. Turner's maid.

Mrs. Turner sent her for Franklin, to bring
him to the Cock-pit, at ten o'clock at night ;
and is sure that night my lord of Somerset
came from court, and was at the Cock-pit
when she came.

Lady Som. exam. She confesseth all that
Franklin said concerning her discourse with
him ; and that my lord was with her tliat night
in the Cock-pit.

Mr. Sen. Crew* Next follows the proof for
surprizing letters.

L. Davis exam. Saith, that in summer last
my lord sent Rawlins to him, to desire that if
he had any letters, either from my lord to sir
T., or from him to my lore), that he would send
them by him ; which he did : And for this my
lord did afterwards send him by Rawlins SO/.

George Ere at the Constable's Examination.

Saith, that Poulter, a messenger, brought
luru a warrant from my lord of Somerset, to
break open and search a house for certain
writings, which were pretended to be one Mrs.
Hide's, a sister of Mrs. Turner's ; and that he
shewed him a part of the warrant only, but not
all ; so that for that cause he would not exe-
cute it. Whereupon, Poulter got smiths him-
self to break open the house and doors, and
found in the cellar, a box and bag of writings,
where he saw the name of Mrs. Turner ; and
those were carried to my lord.

L. of Som. For these letters, sir It. Cotton
delivered them ine back after my lord of
Northampton's death ; and concerning the
dates, you need not trouble yourself, for it now
grows late, and I shall have very little time to
answer for myself. I confess, sir It. Cotton
delivered me hack those letters I had sent my
lord of Northampton, and that I burnt them ;
and that some parts were cut off as impertinent.

Sir H. Cotton exam. Saith, my lord deli-
vered into his hands many of sir T. Overbury's
letters ; and that he cut and dated them by
my lord's direction ; and tliat he put in dates
the next day to some of the letters, after Wes-
ton's arraignment.

Mr. Serj. Crew. I desire my lord will be

f)l eased to look upon this book of Overbury's
ctters. And now for the copy of the largest
pardon :

Sir it. Cotton saith, that at my lord of
Somerset's intreaty, a little before Michaelmas
last, he sot him a draught of the largest par-
don, and the precedent was of one that king
Henry 8th granted to cardinal Wolsey : and if

he desired such a one, I told him the best way
was to follow precedents. — The pardon was
read ; wherein, amongst other offences, before
and after, of small account, treason and mur-
der be foisted in.

Mr. Serj . Crew. And this was it that made
Weston fear that the net was for the little
fishes, and that the great ones could break
through.

Alderman Bow I ft exam. Saith, that after
he had persuaded Weston from standing mute,
he told him, That he feared the net was laid
for the little fishes, and that the great ones
would break through.

Mr. Sen. Crew. The last thing I urge, is
my lord's Declaration to the king, which I de-
sire should be read. — The same that were not-
ed before, after lie understood by my lord Coke
that he was to be arraigned, 6tc.

Mr. Attorney. You see, my lords, in this
Declaration of my lord Somerset there is a
brink of confession ; I would to God it had a
bottom. He urges that in respect he hath for-
merly been so great in the king's favour, and
had never committed any treason, neither
against his person nor state, that he should
never have been culled to an account for this
fault, though he had been guilty : That grace
timely given is a benefit ; and that it is not
only enough to give life, but to save reputation.
But if he must be urged, then he desires his
wife might be pardoned, having confessed the
fact : And that if he must be put upon the
hazard of a trial, the king will before give him
leave to dispose of his lands and goods to the
use of his wife and child ; and that in the rotaa
time he will give my lord Hay and .sir It. Carr
leave to come to him.

Mr. Serj. Crew. This declaration is an im-
plicative confession.

Mr. Attorney. I think there is none here
but wonders, seeing that all poisons be works
of darkness, how this should so clearly appear :
But it seems, his greatness in fortune caused
this grossness in offending.

L. H. S. My lord of Somerset bath behav-
ed himself modestly in the hearing : And only
this, (before you speak for yourself) by way of
advice, I will say unto you, in giving you two
examples : Your wife, that yesterday confessed
die fact; and there is great hope of the king's
mercy, if you now mar not that which she
made. On the contrary, Byron, who when tot
king of France used all the means he possibly
could, to bring him to the acknowledgment' of
his offence, which if he had done, there was no

Juestion to be made of the king's grace. And
think there never was, nor is, a more gracious
and merciful king than our master. But Byron
still persisting in the denial of his fact, you
know his end.

L. of Som. I am confident in mine own
cause, and am come hither to defend it. And
in respect the king's counsel have been so long
in speaking against me, that neither my me-
mory nor notes will give me leave to answer
every particular in order, I will begin with

993]

STATE TRIALS, 14 J amm I. 1(515 tfSir Thomas Ortrbwy.

[994

some of the last things that they seemed most
to urge against me, ami so answer the rest that
1 think do any thing at all touch me. For the
powder that was sent Over bury to make him
tick, that so I might have ihe better occasion
to speak for him to the king for that purpose,
he himself desired it, and upon his letter I sent
it. And though it be true that I consented to
his imprisonment, to the end he should make
no impediment in my marriage ; yet I had a
care of his lodgings, that they should be where
he might have the best air, and windows both
to the water and within the Tower, so that he
might have liberty to speak with whom he
would. So you see it was against my intention
to have him close prisoner. — Whereas the
breach of friendship betwixt Ovei bury and me
is used for an aggravation ngainst me ; it is no
great wonder for friends sometimes to fall out,
and least of all with him ; for I think he had
oever a friend in his life that he would not
sometimes lull out with, and give offence unto :
And this they termed insolence in him ; but I
give it a better name. — For the great trust and
communication of secrets between Overbury
and me, and for the extracts that he took of
ambassadors' letters, I confess this ; I knew
his ability, and what I did was by the king's
commission. For other secrets, there were
never any betwixt us. — And for his fashion of
bra vine both in words and writing, there was
none that knew it better, nor feared it less '
than myself. At that time he was in disgrace
with the queen, and for that cause was enforced
for a time to absent himself from couit, and
this was for some particular miscarriage of his
towards her mnjesiy ; and though I laboured
his reconcilement and return, yet he with main
violent terms laid the cause of his disgrace
upon me. And .another time my lord of S.dis-
bury sent for him, and told him, That if he
would depend upon his favour, he would pre-
sently help him with a suit that should benefit
him £000/. which presently Overbury, coming
to me, told me of: To which I answered, lie
did not need to rely upon any body but me ;
and that, if he would, he might command my
purse, and presently have more than that ; and
so he had. And yet afterwards, upon some
causeless discontent, in a great passion he said,
That his love to me had put him out of my
lord of Salisbury's f.ivour, and made him lose
WOO/. Whereas it was urged that I caused
bim to refuse the employment that was impos-
ed upon him ; it is not so ; tor I was very will-
ing he should have uudei taken it, but he not.
My lord of Canterbury moved him to it, but
not without my privity ; for I should have been
glad to have removed him, both in respect of
my marriage and his insolence. But Overbury
rame to me, and said, 1 will tell sir Dudley
Diggs I will undertake this embassage, that he
may so return answer to my lord of Canter-
bury ; but then you must write to me not to
do so, and so take it upon you. Whereas it is
pretended that I should cause poisoned tarts
to be sent him to the Tower; my wife in her

VOL. 11-

confession saith, That there were none sent hut
cither by me or her ; and some were whole-
some, and some not : Then it must needs fol-
low, that the good ones were those which I
sent, and the bad hers.

L. Lisle. If you had sent him good tarts,
you should have seen them convoyed by a trusty
messenger.

L. Compton. My lady, in her letter to the
Lieutenant, writes, I was bid to bid you do
this. Who should bid her?

Mr. Serj. Montague. The continual letters
between my lord and her argues that.

L. of Som. If Franklin knew me so well,
and that I was privy to the plot, why should
then iny wife and I (as he pretends) when he
was there, speak so closely, and always out of
his hearing and sight ? But for Overbury, my
furthest intent in his imprisonment was, that he
should be no impediment to my marriage ; and
this I communicated to my lord of Northamp-
ton and Elwes.

Serj. Montague. You could not couple
yourself worse than with them two.

L. of Som, Whereas Simcocks says, front
the relation of Weston, Tint he so often came
to me; I protest I never saw him till after
Overbury 's death, and then It awl ins brought
him to me.

Serj. Crew. Sir Jervis Elwes in his ex-
amination saith, that Weston many times told
him, that my. lord of Somerset many times sent
Cor him : And for this purpose you shall have
Weston's examination.

Weston's examin. Saith, That my lord of
Somerset many times sent him directions, before
Overbury 's going to the Tower, to appoint
meetings betwixt him and my lady.

L. of Som. This may hold, and yet thnt I
never spake to him : So for those messages he
spoke of, he might receive directions from me
by a third person. And for thnt which Pay ton
alledgcs about the powder which I sent, and
made sir T. Overbury so sick ; that powder I
sent was one of them which I received fioin s}r
H. Killegrew.

Serj. Crew. But this, my lord, was none of
the powders you received from sir It. Killegrew,
for you had three from him : The first wan lost ;
the second vou sent him by Rawlins; and the
third yourself took at Buly. Now a fourth,
which was sent by Davis, was that that inada
him so sick, and gave him so many stools ; and
that was poison, and sent three weeks after thnt
that llawlins carried. .

Sir J{. K ill e grew s:uth, That my lord desired
him to give him powders, which he himself
sometimes used to take for a vomit ; but he
thought it had been only for himself, not that
he had had a purpose to send it to sir T. Over-
bury ; and that my lord never had of this powder
of him but thrice.

Mr. Ran litis, exam. S;«th, That the first
vomit sir ft. Killegrew gave my lord, wa« laid
upon a tester of a bed, and lost ; and that then
upon that he got another, whh h my lord sent
to sir T. Overbury by him ; and afterwards a
3 s

99*]

STATE TRIALS, u James I. 1 010.— Trials qf the Murderers

[99*

third, which my lord took at iiuly : But he
never heard that sir T. Overhury desired my
lord to send liiin any.

Franklin exam. Saith, That he provided a
white powder, which was poison, lor my lady
called it nrseuick : which, as mv ladv did after-
wards tell him, was sent to sir T. Overhury
in a letter.

L. of Som. I do not think y> u can take
Franklin for a good wittiess. Now for the
antedates which arc used as a circumstance
against me; Sir It. Cotton moved me to it,
saving, That the dates might prove useful to
me at this time. Whereas my lord of North-
ampton writes in one of his letters, that he had
prompted the Lieutenant: I conceive bis mean-
ing to be, That he should endeavour to make
Overbury be a good instrument betwixt my
lord of Suffolk and me ; and to that end, those
whom he thought to be his principal enemies
should be the only causers of his freedom.
And what I understand by EUves's conclusion,
which my lord of .Northampton relates in the
end of one of his letters to me. That death is
the best way ; 1 wish that my answers to those
letters were now to be seen : and if I hud ever
thought that those letters of my lord of North-
ampton's would be dangerous to me, it is likely
I would never have kept them. Tor the war-
rant I made, my wife desired me to do it for
Mrs. Turner's sake: Fucker formed it; and
told roe, I might do it as a counsellor alone,
without other hands; for I would have had at
that time my lord Knowles to have joined with
me, but that he was at council. And when this
warrant was sent, I was not commanded from
court, as is pretended.

L. H. S, All the council together could not
justify the making of such a v\ an ant.

L. of Som. lor my endeavouring to get a
pardon; having had many things of trust under
the king, and the custody of both the seals,
without particular warrant, I desired hy this
means to be exonerated. And tor all general
words, the lawyers put them in without my
privity. And for the precedent of the largest
pardon, which I had from sir It. Cotton, it was
upon this occasion : bir H. Cotton said, In re-
spect you have received some disgrace ju the
opinion of the world, in having past that pardon
which the la>i summer you desired, especially
seeing thtre be many precedents of lurger; I
would have you now gel one after the largest
precedent, that so l;y that addition you might
recover your honour. And upon this i bad
him search for the largest.

Serj. Mont, Sir R. Cotton says otherwise.

Sir R. Cotton's exam. Saith, My lord desired
K> seek precedents of the largest pardons.

L. of Som. For the Declaration which I
lately sent to tlie king, and particularly the
word [mercy], which is no »v so much urged
against me, it was the I Jeutenunt's ; for I would
have used another, hut he said it could he
nothing prejudicial unto me: But when 1 writ
it, I did n-.t think thus to bo sifted in this De-
claration ; for I an that, in all humility, did so

far endeavour to humble and yield myself, that
the king might the better express his grace.
And for the words, [That I did consent to and
endeavour the imprisonment of sir T. Over*
bury] it is true, for the reason there alledged.

Mr. Attorney. May it please your grace,
my lord here hath had a most gracious hearing,
and hath behaved himself modestly and wittily.

L. H. S. If you have any more to say, my
lord, you shall he heard at length; we will not
straiten you in time.

L. of iiom. For Loubell, I never saw him
but1 twice : he affirms the contrary, I deny it;
and there is none else that proves it but him-
self. For sir K. Cotton, I could wish that ha
were here to clear many things that now bt
obscure.

Mr. Attorney. If he were here he could not
be sworn for reason of state, being held for a
delinquent.

L. of Som. For sir D. Wood, there was a
suit wherein he might have teuehted himself
1200/. which I was willing to further him in,
conditionally, that Overbury should have been
a sharer: But for the not effecting of it, it
seems, he took some dislike of sir T. Overbury.
The money that is said sir J. Klwes gave for
his place, I had no part of it. Whereas the
shifting of offices is urged against me, to make
the more easy way for Elwes's entrance; itis
well known, the reason of Wade's displacing
was in respect of his carelessness, in suffering
the lady Arabella to have a key, by which she
might have conveyed herself out of prison.
More I cannot call to mind ; but desire favour.

Mr. Attorney. It bath, my lord, formerly
at arraignments, been a custom, after the kings
counsel and the prisoner's dek nee hath been
heard, briefly to sum up what hath been said:
But in this we have been so formal in the dis-
tribution, that I do not think it necessary:
And therefore now there is no more to be
done, but that the peers will be pleased to
confer, and the prisoner to withdraw until the
censure's be past.

E. of Som. My lords, before you go toge-
ther, [ beseech vou give me leave to recom-
mend myself an J cause unto you: As the king
hath raised me to your degree, so he hath now
disposed mc to your censures. This may be
any at' your own cases, and therefore I assure
myself you will not take circumstances for evi-
dence ; fur if you should, the condition of a
man's life were nothing. In the mean time,
you may see the excellence of the king's jus-
tice; which makes no distinction, putting me
into your hands for a just and ec|u;d censure.
For my part, I protest before God I was neither
guilty of, nor privy to, any wrong that Over-
bury suffered in this kind. A man sensible of
his own preservation, had need to express
himself.

So he being withdrawn from the bar, my
Lord High Steward briefly reported to the
lords die proofs against my lord of Somerset
Then the lords by themselves (and my Lord
Steward for his ease, but returning before the

997]

STATE TRIALS, U James I. 161C— tfSir Thoma* Overbuy.

[9»

rest) staid some time together ; in which in-
terim thej sent for the two chief justices.
Being returned, the Serjeant cryer, Mr. Feo-
shaw, called every lord by his naire, Robert
lord Dormer, an* I so to the rest, before my Lord
High Steward sp«tke.

1. H. S. Robtf-rt lord Dormer, how say
you? Whether is Rol>ert earl of Somerset
Ooilty of the felony, as necessary before the
fact, of the wil»ul poisoning nnd murder of sir
T. Overbury, whereof he hnth been indicted
and arraigned, 01 Not Guilty ? And so par-
ticularly to etery lord, one by one.

L. Dormtr. Guilty, my lord : (Standing
up, and baie-headed; then sitting again.) My
lord N orris, when it came to him, said, Guihy
of Murder: But being told by my Lord High-
Steward, that he must say either Guilty, or Not
Guilty, to the indictment, he said, Guilty.
Then Mr. Lieutenant brought the Piisoner
•fain to the Bar : But he had before taken off
his George himself.

Mr. Attorney. My Lord High-Steward,
Robert earl of* Somersi t hath been indicted
and arraigned, and put himself upon his peers,
who all, without the difference of one voice,
hare found him Guilty ; I pray Judgment.

Mr. Fenthflw. Robert earl of Somerset, hold
np thy hand. Whtreas thou hast been in-
dicted, arraigned, and pleaded Not Guilty, as
accessary before the fact, to the wilful poison-
ing and murder of sir T. Overbury, and hast
put thyself, upon thy peers, who have found
thee Guilty, what hast thou to sny for thyself,
why Sentence of Death should not be pro-
aounced againtt thee?

L. of Sam. The sentence that is past upon
me must be just: I only desire a death ac-
cording to my degree. For that Simcocks
said

L. H. S. My lord, you are not now to speak
any more in your defence : but why Judgment
of Death should not be pronounced.

L. of Sam. Then f have no more to sny ;
but humbly beseech you my Lord High-Stew-
ard and the rest of the lords to be intercessors
to the king for hi* mercy towards me, if it be
necessary.

My Lord High-Steward, taking the whitc-
stafF from sir R. Coning* by, pronounced sen-
tence.

L. H. S. Robert earl of Somerset, whereas
thou hast been indicted, arraigned, and found
Guilty, as accessary before the fact, of the
wilful poisoning and murder of sir T. Over-
bury ; you are therefore to he carried from
hence to the Tower, and from thence to the
place of execution, where you arc to be hanged
till you be dead : And the Lord have mercy
upon you.

L. of Som. My lords the peer*, I beseech
you, as you have been the judges of this day, so
yon will be my intercessors.

Then nay Lord Steward broke his staff, the
court dissolved, and the prisoner was carried
away.

Afterwaidi the Earl and his countess received

several reprieves, during which he wrote to the
king the following obscure Letter*.

" May it please your majesty ; l*y this gen-
tleman, your majesty's Lieutenant, 1 under-

* It is not improbable that some expres-
sions in this letter may have relation to a re-
port spread about at that time, of Somerset's
threatening message sent to king James by the
Lieutenant of the Tower, ' that if he had nut hi*
pardon, he would discover an important secret,
uhich it was tlie knit's interest to have* con-
cealed.'

The following passage in Weldon throws
some li&hton this muter ; " And now for the
j last act enters Somerset himself on the stage,
who being told as the manner is b}^ the Lieu-
I tenant, that he niMst protide to «o next (lav to
' his Trial, did absolutely refuse it, and said they
should carry him in bis bed : that the king
had assured him, he should not come to any
trial, neither durst the kin^ to bring him to
trial ; this was in an high strain, and in a lan-
guage not well understood by George Moore,
Lieutenant in Klwes his room) that made
Moore quiver and shake, and however he was
accounted a wise man yet was he near at his
wits end ; yet away goea Monre to Greenwich,
as late as it was, being 12 at night, bounceth
at the back stairs as if mad, to whoin came Jo.
Loveston, one of the grooms, out of his bed,
enquires the reason of that distemper at so late
a season ; Moore tells him, he must speak with
the king ; Loveston replies, he is quiet, which,
in the Scotch dialect, is fast asleep ; Moore
says, you must awake him ; Moore was cailed
in (the chamber left to the king and Moore); he
tells the king those passages, and desired to be
directed by the king, for he was govc beyond
his own reason to hear such bold and unduti-
ful expressions, from a faulty subject against a
just sovereign : the king falls into a passion of
tears. ' On my soul, Moore, 1 wot not what to
do, thou art a wise man, help me in this great
straight, and thou shalt find thou dost it for a
thankful master/ with other sad expressions ;
Moore leaves the king in that passion/ but as-
sures him he will prove the utmost ot his wit
to serve his majesty, and was really rewarded
with a suit worth to him 1500/. (although An-
nandale, his great friend, did cheat him of one
half) so there was f:\lshood in friendship. — Sir
George Moore returns to Somerset, about three
o'clock next morning of that day he was to
come to trial, enters Somerset's chamber, tells
him he hid been with the king, found him a
most affectionate master unto him, and full
of grace in his intentions towards him, but said
he, to satisfy justice you mu-t appear, although
return instantly again without any further pro-
ceeding, only you shall know your enemies and
their malice, though they shall have no power
over yon : With this trick of wit he allayed his
fury, and got him quietly, about eight in the
morning, to the Hall, yet feared his mrroer bold
language might revert a ja in, and being brought
by this trick into the toil,uiight have more enraged

999]

STATE TRIALS, 14- James I. 1616.— Trials qf the Murderer*

[1000

land of some halt you made, and the cause of
it, at such time as be offered to your majesy
my letters ; but boon after your majesty could
resolve yourself, and behold me nothing so dif-
fident of you, but in humble language peti-
tioning your favour; for I am in hope that my
condition is not capable of so much more mi-
sery, as I need to make my passage to you by
such way of intercession. — This which follows
after, I offer your majesty, though not as to
yourself, for upon le^ motive you can find fa-
vour for me. — Now I need only move, not
plead before your majesty, as my case doth
stand ; for what 1 seek to have done, .follows
upon what you have already done, as a conse-
quence and succeeding growth of your own
act. — But to the intent that your majesty may
see that there is enough to answer those (if

him to fly out into some strange discovery, that
he had two servants placed on each side of
him, with a cloak on their anns, giving them a
peremptory order, if that Somcr>et did anyway
fly out on the king they should instantly hood-
' wink him with that cloak, take him violently
from the bar, and carry him away ; for which
he would secure them from any danger, and
they should :<ot want also a bountiful reward.
But die earl finding himself over-reached recol-
lected a better temper, and went on calmly in
lus trial, where he held the company until
seven at night. But who had seen the king's
restless motion all that day, sending to every
boat be see lauding at the bridge, cursing- all
that came without tidings, would have easily
judged all was not right, and there had been
tome grounds for his fear of Somerset's boldness ;
but at last one bringing him word he was con-
demned, and the passages, all was quiet. This
is the very relation from Moore's own mouth,
and this told to two gentlemen, of which the
author was one, that had no assurance of their
honesty, but though he failed in his evidence,
or rather doted at this instant, yet they never
failed not in that worth, inherent in every nohle
spirit, never speaking of it till (he king's death,
both the gentlemen being now nine, and had
this verbatim from Moore in Wanstead Park. —
And there were strong inducements to believe
Somerset knew that bv him, he desired none
other in the world should i-e purtaker of, and
all that was not peace within in the peace-
maker himself: for he ever cowrted Somerset
to his dying day, and gave him 4000/ per ami.
for fee farm rents, after he wa> conde i.ned,
which he took in his servants irimcs, not his
own (as then mina condemiud not capable of,
and he then resolvt d never t* have pardon 1
have heard it credibly reported, he was told l>y
a wizaid, that could he hot come to see the
king's face again, he should be reinvested in
his former deamess: (hit had been no hard
experiment, but belike he had too much reli-
gion to trust to wizards : or else some friend*
of his had trusted them, and been deceived
by them, and he had little reason to put con-
£d«»c« id them. — Many believe him guilty

any such there be) as do go about to pervert
the exercise of your power, and to turn it from
its own clear excellency, for to minister unto
their passions; 1 have presumed to this end to
awake your majesty's own conceit upon this
subject, which can gather to itself better and
more able .defences in my behalf upon this view.
For though the acts of your mercy which are
not communicable, nor the causes of them with
others; as derived from those secret motives
which are only sensible and privy to your own
heart, and admit of no search or discovery to
any general satisfaction ; and that under this
protection I might guard my particular suffici-
ently; vet mv case need not hide itself, but
attend the dispute with any, that would pat
upon it a monstrous and heavy shape : though
that I must acknowledge, that both life and

of Ovcrbury's death, but the most thought him
guilty only of the breach of friendship (and
that in a high point) hy suffering his imprison-
ment, which was the high way to his murder;
and this conjecture 1 take to be of the sound*
est opinion; for hy keeping him out of the
actiou (if it w tie discovered) his greatness for-
tified with innocency, would carry their noccn*
cies through all dangers. For the gentleman
himself, he had misfortune to marry such a
woman in such a family, which first undermined
his honour, ultci wards his life (at least to be
dead in law; : our did any thing reflect up n him
in all his time of favourite, hut in, and by that
family, first in I -.is adulterous marriage, tlien iu
so hated a family, and the bringing in C ran field
and Ingram, as projectors, all by his wife and
friends means ; otherwise he had been the bravest
favorite uf our time, full of majesty, emploving
his time like a statesman, and the king kept
correspondency with him by letters almost
weekly to Ids dying day. And here have we
brought this great man to hi» end with his
counter, Mrs. Turner. Weston, Frauklyn, and
Klwes died in the Tower, and here died this
great business, Weston t\cr saying it never
troubled him to die with so many blue rib-
bands: and it is verily believed, when the king
made those terrible impr< rati .n» i.u himself,
deprecations of the judges, it was inunde: the
law should run in its proper channel, but was
stopt and put out of course, by the Yoliy oi that
great clerk sir Edward Coke, though no wiie
man, who in a vainglorious speech to >hevr
his vigilancy, enters into a rapture as he sate
on the bench, >avhg "(mxi <nows what be-
came of that sweet babt | int e Ileniy" (but
I know somewhat) and »i;relv iu sear* bm« the
I'al-ineis i e lighted on some paper* that frpai.p
plain in ti-.tt wlm h was i\er whispc red, which
li.id j. t? g.»ne on iu auntie w;iv, would hate
falit ii in of them <lv<>, nut to ha\e been pre-
vei.ie-i ; but this ,».||y of hi^ limine stoj t tlie
i re.ith .i -list niscovt-rx of lh.it so foul a mur-
der, which, I fear, cues stiil for vengeance.
'v\ eidun, Comt and Character of kine Jamet

115

ng James,

It does appear that there was in Somerset*!

1001] STATE TRIALS, 1+ James I. ma.—qf Sir Thomai (ktrbaq- [10(K

estate are forfeited lo you by law ; jet so for-
feited, that tie same law gives you the same
power to preserve, as it doth to punish, where-
by your majesty's higher prerogative doth not
wrestle with it, nor do you infringe those
grounds by which you hove ever governed, so
as llie resistance is not great, that your majesty
hath for to give life, and which is Ins in the
gift of estate, for that the taw casts wholly ujinn
yourself, and yields it as fit matter for exercise
of your goodliest. — Once it was your majesty's
gift to me, in it may tie better not taken, for to
avoid to take Unit, which hath been once
.their own ; and t may say farther, that the law
bath not been set ere upon the ruin of innocent
posterity, nor yet cancelled nor cut off the me-
rits of ancestors, before the politick hand of
state had contrived it into these several forms,

keeping an important secret of which the king
dreaded a discovery. " Some," says Harris,
" have thought the discovery dreaded was the
manner of prince Henry's dentil, which was
believed to have been by poison ; but if T may
be allowed to offer a conjecture, it was the re-
vealing of that [must unnatural] vice to which
James seems to have been addicted, that was
the object of his fear." See Hurra's Historical
Account of James 1st, 69, '205, and Oabom,
Weldos, and Peyton, ns quoted in pp. 70, 71,
of that work.

It is certain n suspicion extensively pre*
vailed that prince Henry was killed by poison.
The following Report of the slate of his body
after death is extracted from " Truth brought
in light by 'lime, &c."

Dis&ecto illustrissimi Piincipia corpnre bare ii
. nobis notata sunt inspections,

" I'rimo, aniinodvertimus ipsius jecur colore
pallidius quimisihiin in locis snblividam, clstam
anlemfellis;v bile vai-uam, Hutu vera turgiilatn.
— Secundo, J.ienem hahuit varus in locis prieter
naturam nigraiii. — Tcrlio, Ventriculum nulln
ci parte lariuui. — Quarto, Diaphragm* multis
in locis denignituui.— (Juiutn, I'ulmonea nigros
varie macukto* ct ichore niulto replttos. —
Venas habuit in posteriori; cerebri parte pie-
niores ; ventricuhn a at em aqua Imipida pleuus.

In quorum lidcin prscscntein rclutionem manu
propria subsignuvimus die ? Xoverabrii, 1619.
Dr. Mayernc; Dr. Atkins; Dr. Hammond ;
Dr. Palmer ; Dr. Gilford ; Dr. Butler.

Mortuus est illustrissiinus Princeps sexto die
Noeembr. 161S, tempore vespertiuo : ejusque
fun us celeb ratu in septiino die Dccemhrit prox-
ime sequent is."
The Dissection of the Body of prince Hcnrv.

" 1st, We found his liver paler (ban ordinary,
in certain places somen bat wan, bis gall with-
out ""J choler in it, and distended with wind.
— Sdty, his spleen "as in diicrs plares more
than ordinarily hlnck. — 3rily, is stomach win
in no part offended. — 4IIi1t, bis midriff Has in
divers places Unck. — .'ithlv, his lungs were
very black, and in divers places spoiled, and
fall of a thin watery blood.— Lastly, the veins

ns fitted to their ends of government. — To this
I may add, that whertupnn 1 win judged," even
the crime itself might have been none, if your
majesty's hand had not once touched upon it,
by which nil access unto your favour was quite
taken from me. Yet as it did at length ap-
pear, I felt rather for want of well defending,
than by the violence or force of any proofs; lor

nothing hath appeared, » herein
your majesty hath extended forme your power,
beyond the reasonable bound ; neither doth
any tiling stand so in the way of your future
proceedings but rather make en:>y your majes-
ty's favour lor my relief. — What may then he

in tlie hinder part of his head were fuller than
ordinary, but the ventricles and hollownesa of
the brum were lull of clear water.

In witness whereof, with our own hands w«
have subscribed this present relation, the 7tb
day of November, 1612. — Mayeme ; Atkins;
Hammond; Palmer; Gifford ; Butler."

In 2 Keimctt's Compl. Hist. 089, is tin fol-
lowing note on Wilson's intimations that the
prince's death was caused by poison, "How
well or ill grounded our author's conjectures*
were about the death of prince Henry, I shall
nut take upon me to determine; since few '
princes of so great hopes die an untimely death,
but the world is apt lo attribute it to foul play.
— This is certain, the court was lilll of suspi-
cions about it; and it was whispered about,
thai the prince having entertained a' mortal pre-
judice to the favourite Carr, he was taken olfto
prevent the effects of it. These surmises
came likewise to be insinuated in the pulj.it;
mid we hive yet extant in print, a sermon
preached at St. James's ujtun the dissolution
nf Lis family, wherein the preacher that bad
been his domestic chaplain made such broad
bints about the manner of his death, that
melted the auditory into a flood of tears, and
occa-iniitd Lis being dismissed die court. —
.Some years after, when the murder nf sir Tho.
Overburv cam" upon the stage, at one of I he
trials before ihe Lord Chief Justice Coke,
there ewnrnd him some words in heat, that
plninly imported his suspicion that Overburv
had been poisoned, to prevent the discovery
of another ciimc of the same nature committed
upon one of the highest rank, whom he termed
a swpct prince, which was taken to be meant
prince Henry; for which rashness the Lord
lust the king's favour, and some

I, tier

... pi-

Mr. I'm nrititig to Lord Lauderdale »..._
" I recollect that the impression upon my minf

rally allowed for suspecting that prince Henry
ivas ptiisnnrd by Somerset, and that the king
'■" "'it after tlte fart." See lord Holland's

. lo

i II i,t

V of t

tho Reign of James the isfcmd.

1003]

STATE TRIALS, U James I. \6\6.—TriaU qf the Mwderrrs

[lOOi

the cause that malice can pitrh upon, where-
fore your majesty should not proceed to accom-
plish your own work ? aspersions are taken
away by your majesty's letting rue loose to the
utmost power of law, with the lives of so many
offenders, which yieldeth the world subjects of
sorrow rather than appetite to more blood. But
truth and innoceucy protect themselves in poor
men, much more in kings, neither was there
such aspersion (-God knows) in any possibility
towards your majesty, but among those who
would create these pretences to mislead your
majesty, and thereby make me miserable ; if
not tins (whereof (he virtue and use was in the
former time, and is now determined) there is
not any but your pleasure. — It is true, I am
forfeited to your majesty, hut not against you
by any treasonable or unfaithful act ; besides,
there is to be yielded a distinction of men, as
in faults; in which I am of both under the
nearest degrees of exception. — Yet your ma-
jesty hath pardoned life and estate to traitors
and strangers, sometimes the one, sometimes
the other ; nay, to some concerned in this bu-
siness, wherein I suffer, yon have pardoned
more unto them, than I desire, who (as it is re-
puted) if they had come to the test, had proved
copper, and should have drunk of the- bitter
cup as well as others. — But I do not by this
envy your favours to any persons, nor seek I to
draw them into the yoke with myself, but ap-
plaud your majesty s goodness, being in that
respect in a near possibility to come at me ;
besides this, to Elwes your majesty has given
an estate, (which is a greater gift than life, be-
cause it extends to posterity) who was the worst
deserve r in this business, an unoffended instru-
ment, who might have prevented all after-mis-
chief, but for his own ends suffered it, and by
the like arts afterwards betrayed it. — To iliis I
may add Tresham in the Powder-treason, upon
whose successors I do not cast any of his in-
famy, yet he preserved himself to posterity; so
as what he, or others such as he, have defraud-
ed by the arts of law, and whom their own un-
faithfulness made safe ; I have much ado to
hold my ingenuity and confidence, how it may
he, because I distrusted not your majesty, or
because it returned in your power from whom
I had it. Is it in danger to be broken or dis-
membered? Let me hope that (here is nothing,
which by favour may be excused, or by industry
might have been avoided, that will fail me,
where your majesty is to determine. It is not
I, that put your majesty in mind opportunely,
it is he, that was your cieature; it is Somerset,
with all your hoi. ours and ei.\i<>us grcatue%*-,
that is now in question. Kii.ps themselves are
protected from the brt-aih of law, by being fa-
vourites and Cod's anointed; which gi\esyour
majesty like privilege over yours, as 1 took from
Dr. Donne hisstrnion, That the goodness of
God is not so much acknou ledned by us in be-
ing our Creator, sis in being our Redeemer:
nor in that he hath chosen us, as that nothing
can take us out of his hand ; which in your
majesty's remembrance let we challenge and

hope for : for the first accesses of favour, they
may be ascribed unto one's own pleasing them-
selves, but that appears to be for our sakes,
and for our good, when the same forsakes not
our civil desires. — This redemption I crave, not
as to my own person, but with your benefits
once given ; nor do I assume them very deep,
for I have voluntarily departed from the hopes
of my pension, place, omce, 1 only cleave to
that w hich is so little, as that it will suffer no

tiarting or diminution. — And as in my former
ctters, so by this, I humbly crave of your ma-
jesty not to let the practices of court work upon
your son the prince, not fearing the sufferings
of my loss in that paiticular so much (for I can-
not lose it but willingly all with it), as for to
take off the stage, that which in the attempt
may prove inconvenient. — But if yam majesty
have any respects to move you to suspend your
goodness towards me, let that which is mine
rest in your own hands, till that you find all op-

fosite humours conformed to your purpose.—*
have done wrong to myself, thus to entertain
such a doubt of your majesty ; but the unre-
lenting of adversaries, which, when you will
have them, will soon alter ; and that all tins
while I have received nothing of present notice
for direction, or to comfort me from your ma-
jesty, bath made me to expostulate with myself
thus hardly : for God is my judge, sir, I can
never be worthy of it, if I have these marks put
upon me of a traitor, as that tumbling and dis-
ordering of that estate, would declare. The
divorce from your presence, lays too much upon
me, and this would upon both. — I will say no
further, neither in that which your majesty
doubted my aptness to fall into : for my canst
nor my confidence is not in that distress, as for
to use that mean of intercession or any thiol
besides ; but to remember your majesty that I
am the workmanship of your hands, and hear
your stamp deeply imprinted in all the charac-
ters of favour; that I was the first plant in-
grafted by your majesty's hand in this place,

I therefore not to be unrooted by the same band,
lest it should taint all the same kind with the
touch of that fatalncss ; and that I was even
the son of a father, w hose services are registered
in the first honours and impressions I took of
your majesty's favour, and laid there as u foun-
dation stone of that building. — These and your
majesty's goodness for to receive them, is what

i I rely upon, praying for your majesty's prospe-
rity ; I :»m in all humbleness, your majesty's
loyal servant and creature, It. Somi rset."

On i lie HUh of January, 16^1, the king by
order of council granted them the liberty ot re-
tiiini; to a country house.

.'1/ Whitehall, Jan. 18fA, 1GC1.

Present, L. Keeper; L. Treasurer ; L. Pre-
sident ; L. M Hamilton ; Karl Marsha! ; L.
Vi*. Falkland ; L. Digby ; L. Brooke; Mr.
Treasurer; Mr. Secretary Calvert; Mr Chan-
cellor of the Exchequer ; Master of the Rolls.

" Whereas his majesty is graciously pleased
to enlarge and set at liberty the 9kA of Soma?*

1005] STATE TRIALS, 14 James I. lf3l6V— o/Str Thomas Overbuy. [100*

set and his lady, now prisoners in the Tower of i
London ; and that nevertheless it is thought fit |
that both the said earl and his lady be confined I
to some convenient place : it is therefore, ac-
cording to his majesty's gracious plea&ure and
command, ordered. That the earl of Somerset
said his lady do repair either to Grays or Cow-
shain, the lord \Yalliiigfrrri*s homes, in the
county of Oxon, and remain confined to one or
either of the said houses, and within three miles
•compass of either of the same, until farther
order be given by his majesty/'

At last in the year 1624, about four months
before the death of the king, they obtained
their Pardons; notwithstanding; the king had
formerly made a solemn declaration,* that he
would never pardon any person who should ap-
pear to have been concerned in this murder.

The Countess of Somerset's Paruon.

Jacobus Rex ; Rex omnibus ad quos, &c;
sftJutem. Cum tarn justic. quam misericord
fontes a solio Regis promanare consueverint et
debeant ex quibus prior ille justitiae in memo-
rabili casu mortis et intorfectionis Thorn* Over-
hury mil. cursu constant i, et reclo a nobis, ct
cura nostra regia fluxit, et derivatus est, in nos-
tram et subditorum satisfactionem plenariam :
Cumque divers' ct multiplices caus' et motiva
dementia nost' occurrnnt, quae misencordiam
nost. regiam erga Franciscaui Carr nuper Comi-
tiss. Somerset promovere possint, prsscrtim
csedeilla tot' et tal' exemplisjustitia* jam anten
expiata, pnecipue vero duae, quarum prima ud
patrem ejus et amicos spectat, familiamque ct
prusapiam praenobil. altera ad earn iptain,
quod lib. et spontanea delictum suum confess*
nt, se submittendo et prosternendo ad miseri-
corditt nost. ultare, nun solum durante tempore
iocarceratiouis sua?, verum etiam publice et in
judicio. Cumque Tho. Dominus Ellesmere
Caocellnr. nr' Anglian, et magnus Scncscalhis
nr* Anglisea vice existeus, necnon omnes pares
ejus per quonuin judicium couvicta fuit nd
hamil. Petitionem ejusdem Francisca? publice
fact' promisso *uo ad intercedend. pro miseri-
cordia nostra rrgia erga cam solennitcr se ob-
strinxerint. Imprimis nntem nobisruin perpen-
dentes natur' delicti ejus unde ipsa iudictat'
arraignat' convict' et condemn at* sit (viz.) quod
non raer' process, et judicium tanqu.im de prin-
cipal, sed de nccessoria ante fact' eaque ipsa
procuratio ex eonscclerata inKtigationchoniinutn
quorundum ignobilium originem susccpisse
videtur. Sciatis quod nos pittate moti de gratia
nostra speciali ac certa scienc' et mero inotu*
nost' pardonavimus, rcmisimus, et relax? vim us,
ac per present** pro nob' hiPreu" et suqm* nosiris

• At the time when thi> prosecution was
first set on foot, the kiw, j; ;-.,e a strict charge
CO the judges to mn.l:c a diligent search and m-
qeiry iuto the truth, and told them, If ever he
spared any that were guilty, he wished themrsc
of God might light on him, and his post frit v.
~ the Note at the beginning of the em I of So-
"* ■ Case, p. 966.

pardonamus, remittimus, et relax amus prafatf
Francisca: Carr nuper Comitiss. Somerset, seu
quocunque alio nomine, cog nomine sive addi-
tiooe nominis vel cognominis, dignitatis, loci vel
locorum eadem Francisca sciatur, ceoseatur,
vocetur, sive nuncupetur, aut nuper scii hatur,
censebatur, vocabatur, sive nuncupabatui , occi-
sionem, uecem, vtnenu Lion era, intoxicationrin,
mortem, feloniam, ct felonicum iirterfectionem
pnsd. Thom« Overhury mil. seu quocunque
alio nomine, cognomine, sive additione nominis
vel cognominis loci vel lucor' idem Thomas
Overhury mil. sciatur, censeatur, vocetur sive
nuncupetur, aut nuper sciehutur, censebatur,
vocabatur, sive nuncupabatur, per ipsam Fran-
ciscan! per se sclam sive cum aliqua ali.i per-
sona sive aiiquibus al' person is quibuscunque,
quomodocunque, qualitercunque,quandocunque
seu ubicunque fact' com miss, sive perpttrat' ac
omnes et omnimodas conspiration is, felonias,
ahettationes, procurations, incitationes, confor-
tation'manutension' auviliationes, conductions,
uiandat' consilia, crimina, transgre*siones, male-
facta, oft'ens. et delict' qua»cuuque prsd. mortem,
occUionem, necem, venenatiom m, in toxica -
tiouem, feloniam et felonicam interfectionem
jpnrd. Thomue Overhury mil. in aliqao tangen.
sive concern, ac uccessar. eorundem tarn ante
factum, quam post factum, ac fugam, et fugas
superinde fact, licet eadem Francisca de per-
nnss. vel aliquo pramissor. indictata im petit,
appcllat. rectat. vocat. waviat. convict, condem-
nat. attinct. sive adjudicat. per judicium parium
suorum coram pried, niagno Sen esc alio nostro
Angl. vel air. quomodocunque existit vel non
existit, aut indictari, impetin, appellari, rectari,
vocari, wuviari, convinci, condemnari, attingi,
sive adjudicari contigerit in futur. ac omnia et
singula indictnmeuta, judicia, condemnationes,
executiones, pa-nas, mortis pa-nas, corporal,
punicioues, ac omnes al. pcrnas, et poenalitat.
quascunque de pro sive concern, mortem, occi-
sioncm, necem, veueuationein, intoxicntionem,
feloniam, et felonicam interfertionera prsd,
Thorna* Overbury mil. in sup. vel versus ipsani
Franciscam hab. fact, reddit. *ive adjunicat.
aut im poster, hahend. timd. red dead, sive ad-
judicand. aut once nos versus ipsam Francisc'
pro proemiss. vel aliquo prarmUsnr. hubuim' ha-
oem' seu impost, habere poteritnus, aut luered.
seu sue. haheie pott-rim in lutur. (linprisona-
ment. ad arhitrimu nr' regitim aut re* trie, ullo
modo ad locum certum Anplirc confining, tan-
tuin except.) Pardonamus iiiHipcr ac per
praesent* pro nob. hvrrd. et sneer, nr' remitt. et
relax. praTat. Francisco omn. ct singul. utla-
gar. si qua? verbis \tx\m Francis<\ ratiune, sive
occasione prautn-ssor. seu eor. alicujus promul-
gat. filer, ?*ivc iinpostcr. cruet promulgand. ac
j oinii, et oMiniaiod. sect, qucrel. iinpcsitiones, et
! demand, qua'cunqUi.', quuu lms versus ipiuin
IVanci-cain pro pr.Tiniss. vel aliquo pruMiiissor.
hahuimib; hahem. v u in futur. habere poteri-
mu^, Srcicimrpic p:icis nostt;r7 quje ad nos ver-
sus ipsam Tranche, prriiuet, seu pertinere po-
tent r.\tiuu? pri'mi'-Mir. sou ior. alicujus, et fir-
mum p.iccni nr* eidero Francisc* inde datuus of

1007] STATE TRIALS, 14 James I. 1616.— Trials qf the Murdarn [1000

concedimus per praesentes: Nolentes, quod
euflein Franc, per just. \'ic. Escactor. Ballivos,
seu aliquus Ministr* nr' occasionibus praed. seu
eor. aliquo molestetur, perturbetur, seu in aiiquo
gravetur ; ita tamen quod stet rcct. in cur. nr.
si quis versus cam loqui voluerit de premissis
vel aliquo prwinissor' Licet eadem Fraucisca
bonam ct sufficient, securitnt. nun inveniat se-
cundum form am et elTectum cujusdnm Actus
Parliament. Duinini Ed ward i nupcr Regis An-
^lia: tertii, progenitor, nr. anno regni sui decimo
apud Wtstm. tent. edit, de se bene gerend. ex
nunc erga no3 ha red. ad succ. nr' et cunctum
populuin nr' Et ulterius pro nobis hsred. et
nice, nostris de ainpliori gratia nostra speciali,
uc ex certa scienc. et mero motu nostris v»lu-
mus et concedimus per praesentis, quod hie litt.
line, paten, pardonutioms, ac omnia et singula
iu eisdem content, bone, tirme, valide sufricient.
et effectual, in lege stabuut, et existent, et de-
hinc nullo modo vacua; devenicnt; Quod que
impost tr. eadem Franc i sea uilo modo non in-
dictetur, arrectetur, iineetatur, vexetur, hen
gravetur de pro vel conceruend. mort. occi-
sionem, nccim, venenationem, int >xicationem,
feloniam aut felonicain interfectiouein praed.
Tliomae Overbury mil. qualitercunqac seu quo-
cunque modo idem Thomas Cher bury mil. ad
mortem suam deveuit. Statut. in Parliament.
Domini Richard i nuper Regis Angliss sccundi,
anno regni sui decimo tertio tent. edit, aut ali-
quo alio statut. actu, ordination, provisione,
give restrictione in contrar. inde non ob*tan. In
cujus rei, &c. Teste, &c. Ex per F. Bacon.
" May it please your excellent majesty :
This Bill containeth your majesty's gracious
pardon unto the lady Frances late countess of
Somerset, tor being accessary be fire the fact,
of the death and impoisonment of sir T. Over-
bury, — It hath inserted, as motives to your ma-
jesty's mercy, four respects ; that is to say :
The respect of her father, friends and family.
— Her voluntary contessiou, both when she was
prisoner, and at the bar. — The promise made
publicly by the Lord High Steward, and her
peers, to intercede for \our majesty's mercy. —
And that the crime was not of a principal, but
of an accessary, before the fact, by the instiga-
tion of base persons. —The like pardon for-
merly passed your majesty's signature, and is
now amended by your majesty's special direc-
tion from your royal mouth, in two points :
The one is, That imprisonment in the Tomer,
or other confining at your majesty's pleasure,
is not pardoned. The other,, that the solemn
promise made at her arraignment by the Lord ;
Steward and the peers to intercede to your
majesty for vour mercy, is inserted. Francis
B.u »n." ' "

The aforesaid Bill translated into English.

" James Rex ; The kin^ to whom, &c.grtet- |
ing. Whereas ti»e fountains, as well of mercy I
as justice, are wont and ought to flow from the j
king's throne ; of which the former of justice f
in tiie memorable case of the death and murder .
of sir T. Overbury, in a constant and right

course, hath flowed and is derived from us and
our royal court, for the full satisfaction of our-
self and subjects. And whereas divers and ma-
nifold causes cfour clemency occur, which may
move our regal mercy towards Frances Carr,
late countess of Somerset ; chiefly, that murder,
with so many and such examples of justice,
before this time expiated; especially two,
whereof the first reapecteth her father, and
friends, and family, and noble progeny ; the
other hath respect to herself, because she freely
and willingly confessed her offence, snbmittiog
and prostrating herself at the altar of our mercy,
not only during the time of her imprisonment,
but also publicly, and in her trial. And foras-
much as T. lord Ellesmere our Chancellor of
England,and being our High Steward of England
in that behalf, and all her peers, by whose judg-
ment she was convict, at the humble petition
of the said Frances publicly made, solemnly
bound themselves by their promise, to intercede
for our royal mercy towards her : And first
weighing with ourselves the nature of her ok
fence, upon which she was indicted, arraigned,
convicted and condemned, viz. That the pro-
cess and judgment were not as of a principal,
but as of an accessary before the fact, and that
she seemed to have begun by the procurement
and wicked instigation of certain base persons:
Know ye, that we, moved with pity, of ov
special grace, and of our certain knowledge,
and our mere motion, have pardoned, remitted
and remised, and by these presents for us, ear
heirs and successors, do pardon, remise, and
release to the aforesaid Frances Carr, late
countess of Somerset, or by whatsoever other
name, or surname, or addition of name, or of
her surname of dignity, place, or places, the
same Frances may be known, esteemed, called,
or named, or lately was known, esteemed,
called or named, the slaughter, killing, poison-
ing, bewitching, death, felony and felonious
murdering of the aforesaid sir I\ Overbury; or
by whatsoever other name, surname, or addi-
tion of name or surname, of place or places,
the said sir T. Overbury may be known, es-
teemed, called or named, by the said Frances,
by herself alone, or with any other person, or
any other persons whatsoever, howsoever, in
what manner soever, whensoever, or whereso-
ever done, committed, or perpetrated ; and aH,
and all manner of conspiracies, felonies, abet-
meuts, procurements, incitations, partnerships,
maintenances, helps, hirings, commands,
counsels, crimes, transgressions, wrongs, offen-
ces and faults whatsoever, the aforesaid death,
slaughter, killing, poisoning, bewitching, felony
and felonious murdering of the aforesaid sir i.
Orerhury, in any wise touching or concerning.
And tlie accessary of them, as before the fact,
as afer the fact, and flight and flights made
thereupon, although the said Frances of the
said premises, or any of the premises stand, of
not stand indicted, impeached, apptllat. x*
cat. if clat. vuviat. convicted, condemned,
nttah.ted, or adjudged by the judgment of be?
peers, before the aforesaid Iiigh Steward of

1009] STATE TRIALS, 14 James L \6l6.-qf Sir Thoma$ Overbuy . [1010

"England, or otherwise howsoever, or thence in
time to come shall appear to he indicted, im-
peached, appellor, rectari, vocari, waviari,
convicted, coudeiuned, attainted or adjudged.
And all and singular indictments, judgments,
condemnations, executions, pains of death,
pains of corporal punishments, and all other
pains and penalties whatsoever of, for, or con-
cerning the death, slaughter, killing, poisoning,
bewitching, felonies, and felopious murdering
of the aforesaid sir T. Overhury, in, upon, or
against the same Frances, had, made, returned,
or adjudged ; or hereafter to be had, made, re-
turned, or adjudged, or which we against the
said Frances may have in time to come (impri-
sonment at our royal pleasure, or restraint,
confining to u certain place, only excepted).
Moreover, we do pardon, and hy these presents
for us, our heirs and successors, remit and re-
mise to the aforesaid Frances, all and every
outlawries which against the same Frances, by
reason or occasion of the premises, or any of
tlicin, have been proclaimed, or hereafter shall
be proclaimed; and all, and all. manner of
suits, complaints, impeachments, and demands
whatsoever, « hich we against the same Frances,
for the premises, or any of the premises, have
had, have, or in time to come shall have ; and
the suit of our peace which appertained to os
ngaiust the same Frances, or may appertain by
reason of the premises, or any of them. And
by these presents, We do give and grant our
firm peace to the same Frances, willing that the
some Frances, by the justices, sheriffs, eschea-
tors, bailiffs, or any other our ministers, by the
occasions aforesaid, or any of them, be not mo-
lested, troubled, or in any manner vexed ; so
as nevertheless she stand right in our court : if
any towards her should speak concerning the
premises, or any of the premises, although the
said Frances do not tind good and sufficient se-
curity, according to the form of a certain act
of parliament, of the sovereign lord Edward 3,
late king of England, our progenitor, held at
Westminster, in the tenth year of his reign, for
ber good behaviour from henceforth toward us,
our heirs and successors, and all our people.
And farther, for us, our heirs, and successors,
of our more ample special grace, and out of
our certain knowledge, and our mere motion,
we will and grant hy these presents, That these
our letters- patent of pardon, and all and singu-
lar the thing* contained in the same, shall
stand, and be good, firm, valid, sufficient and
effectual in the law, and from henceforth shall
by no means become void. And that m time
to come, the said Frances, by any means, shall
not be indicted, arrested, accused, vexed or
troubled of, for, or concerning the death, mur-
der, slaughter, poisoning, bewitching, felony,
or felonious killing of the aforesaid sir T. Over-
bury, howsoever, or by whatsoever means the
said sir T. Overhury came to his end : The
statute of the sovereign lord Richard % late
king of England, in the 13th year of his reign,
or any other statute, act, ordinance, provision,
or restriction to the contrary thereof uotwith-
vol. Jf.

standing. In testimony whereof, occ. Wit-
ness, &c. Ex. per Francis Bacon.

De Pardonatione speciali pro Roberto Karr,
nuper Comiti Somerset. *

" Rex omnibus ad quos, &c salutem. Cum
per quandam inqnisitionem captum apud civi-
tatem Wcstiu* in comitatu Middlesex ia*, in
magna aula placitorum ibidem, die Veneris
decimo nono die Januarii, anno regnt nostri
Anglis, Francis et Ilibernias tertio decimo, et
Scotia; quadragesimo-nono, coram : Edwardo
Coke, milite, capi tali justiciario nostra ad placita
coram nobis tcnenda assignato, uno de private
concilio nostro : Julio Cesar, milite, magistro
rotulorum cancellariae nostras, altera de privato
concilio nostro: Henrico Hobar :e, milite, capi-
tali j usticiario nostro dt banco : Laureutio Tuu-
field, milite, capitali barone scaccarii nostri :
Jacohi Althain, milite, uno barouum scaccarii
nostri : Johanne C roke, mil i te, u no justciH riorum
nostrorumad placita coram nobis tcnenda assig-
nato : Johanne Doddertdge,inihte, altera justici-
ario ad placita coram nobis teneuda assignato :
Roberto Houghton, milite, altera justiciario
nostro ad placita coram nobis tenenda assignato :
Rogero VVilbrahara, milite, supervisore curias
nostras wardorum et liberationum : Daniele
Dunn, milite, uno magistrorum curias nostras
requisitionuin : Jacobo Ley, milite, attornato
nostro curiae nostras wardorum et liberationum :
Et Edwardo Moseley, milite, attornato curias
ducatus uostri Lancastrian : Ad tunc justiciariis
nostris, per literas patentes nostras eis, et qui-
buscunque quatuor vel pluribus eoram, hide
confectas; ad inquirendum per sacramentum
probofum et legal i urn hominiira de comitatu
IVJiddlesexie, ac aliis viis, modis et mediis qui-
bus melius sciveriiit aut poterint, tain infra
libertalis qu&m extra, per quos rei Veritas me*
lius sciri poterit, de quibuscunque proditioni-
bus, misprisionibus proditionum, insurrectioni-
hus, rebellionibus, contramcturis, tonsuris, lo-
turis, falsis fabricationibus, et ahis falsitatibas
monetae hujus regni nostri Anglis? et aliorum
regnormn sive dominiorum nostrorum quorum-
cunque ; ac de quibuscunque murdris, feloniis,
homicidis, interfectionibus, burglariis, raptibus
roulierum, consregationibus et conventiculis
ilhcitis, verboruin prolationibus, coadunationi-
bus, misprisionibus, confoederationibus, falsis
all«*gatioiiibu«, traiisgressionihus, riotis, routis,
reteutionibus, escapiis, conteraptibus, falsitati-
bus, negligentiis, concelamentis, manutenentib,
oppresMonibus, cambipartiis, deceptionibus, et
aliis malef;ict is, offensis et injuriis quibuscun-
que ; nee non nccessariis eorundem infra comi-
tatum prssdictum, tain infra libertates quam
extra, per quoscunque et qualitercunque faeti%
habitis, perpetratis sive commissis, et per quos
vel per quein, cui vel quibns, qunndo, qualiter
et quomodo ; ac de ahis articulis et circunv-
stantiis pnemissa, et eorum quod li bet, sive
eorutn aliquod vel aliqua qualitercunque con-

' * 22 Jac. 1. a. d. 1624. Rymer's Fcedera,
vol. xvii. p. 025, et seq. edit. 1717.

3 T

1011]

STATE TRIALS, H James I. 1616.— Triah of the Murderer*

[1013

carnentihus plenius veritatem ; ct ad easdem
proditiones, et alia praemissa audiendi et termi-
naudi, secundum legem et consuetudines regni
nostri Anglia? assignutis, recitantes quod cum
lticardus Weston, nuper de London, ^eaman,
Deum pra? oculis sui* non liabens, nee acer-
bissima* pamas et punitioncs contra inalefito
tores per leges ct statu I a lmjus regni Anglise
cdita ct provisn, atque quotidie in exempium et
tcrroreiu eorundem in execution em positu, ali-
qualiterverens; sedinstigationediabolica motus
et seductus, machinaus et iutendens quendam
Tbomam Overbury mil item, auon solum in
gravissimos, odiosissimos et periculosissimos
uiorbos inducere, veruia etiam pnefatum Tho-
main Overbury de vita sua felon ice et volun-
tary deprivare atque spoliarc, et nequissimam
intentionem ilium atque aninn sui impium pro-
positum pr&dicuim emcere; dodo die Maij
anno regni nostri Anglic, Francis, et Ilibemiae
undecimo, et Scotia? quudragesinm-scxto, apud
Turrim London, in parochia Omnium Sanc-
torum Barking, in war da Turrib London, ex
xnalitia sua pru-cogitata, quoddam venenum co-
lor is sub* iridis ct subtiavi (A nghce, ' ot'a greenish
and yellowish colour') vocatum Rose-acre, in
manub suas obtinuerit et ucquisiverit : Ac pra>
dictus Ricnrdus Weston, eisdein die ct anno
apud Turriia London prsedictani in parochia et
warda predict is, sciens predictum venenum,
vocatum Roseacre lore venenum niortalc, idem
Rica rd us Wo ton venenum predict um vocatum
Roseacre, cum quodaui gencrc jusculi, Anglicfe
broth) in quodaui disculo per ip*iiin Ricardum
Weston ad tunc apud Turrim London pnedic-
tum, iu parochia et warda praedictis, composuit
et miscuit, et jusculum pnedictmn cum veneno
pnedicto, vocnto Roseacre, ad tunc apud Tur-
rim London pnedictam in parochia et warda
praedictis, vitiavcrit ct infeccrit ea intentione,
nt idem Ricardus Weston praefatum Thomam
Overbury cum veneno pnedicto, sic, ut prae-
iertur, composito et mix to, internee ret et mur-
draret. Et pixdictus Ricardus Weston, iuv
culuiu pra; dictum sic per ipsum Ricardum
Weston, ut prarfertur, vitiatum et in feet urn et
cum veneno pnedicto coin po bit u in ct mixtum,

£rafato Thoma: Overbury, ad tunc npud Turrim
oudou praxlictam, in parochia ct warda pne-
dictio, felon ice, voluntarie et ex malitia sua pne-
cogitiJi, tauquam salubre jusculum ad eden-
dum pnelmrrit et dederit: Super quo pnedictus
Thomas Overbury credcu* prxdictum jusculum,
sic, ut pnefertur, cum \eneno pnedicto per
ynefatuin Ricardum Weston compositum, mix-
turn, \ it latum ct iufectum, toie salubre, idem
Thoma* Otcrhury postea, scilicet, eisdern die
el anno apud Turrim 1/indon pnedictam, in
parochia et warda pra. diet i>, pnedictum jus-
culu.u vr, ut pneiertur, per pnclntum Ricardum
AVe>li>n.. cum veneno pnedicto compo*itum,
ini\umi, vitiatum et infectuin, ad tunc apud
Turrim London, iu parochia ct warda praedictis,
ccpcritct comedeih.

44 Cuinquc ctiam pnedictis Kicardus Westou
postea, tcilicet, primo die Junii annis undecimo
et quadragcdiino-sexto suprudictU, in parochia

et warda praedictis, ex malitia, sua pnecogitata,
quoddam aliud venenum in pulvere vocatum
white Arseuick, in manus suas obtinuerit et ar-
quibiverit, et prsdictus Ricardus Weston ad
tunc, scilicet, pnedicto primo die Junii aauis
supradictis, scieiib pnttdictuui pulvcrem, voca-
tum white Arseuick, lore mortale veuenum,
idem Ricardus Weston, eu intentione ut idem
Ricardus Weston cum veneno pnedicto, vocato
white Arscnick, pnclaiuiu Thouiam Overbury
magis ctieriitr inieriiccret it luurdniret, vene-
num illud, vocatum white Arseuick, tauquam
salubre m pulvertm, ad edenduin prostata Iho-
wtt Overbury ad tunc, scilicet, pranlicto priato
die Junii annis supradictis, apud Tunim Lon-
don pnrdictum, in parochia et warda pra*dicti<,
felon ice, \ohmtane ex malitia sua praeco^itata,
prajbucrit et dederit; super quo p r aid ic l us Tho-
mas Overbury, rrcdens prxuictum pnlvcrtro,
\ocaturi) white Ar>enir.k, fore salnbreni puive-
rem, idem Thomas Overbury pulvercm praiKc-
tum vocatum white Arsenick, ad tunc, si ilicct,
pra?dicto primo die Junii aunis supradictis, npud
Turrim London prxdictam, in parochia et
warda predict;*, sumpscrit et coun.ilcrit.

44 Cumquc itiam pi it diet us Ricardus WeMon
posteu, scilicet, decimo die Julii annli undi-
cimo et quadragesimo-sexto supradictis, apu.i
Turrim London pnedictam, in parochia et w:irda
predict is, ex malitia hua prac«u;tata, quoddam
aliuni \eujuuin, vocatum Mercury sublimate,
iu manus suas obtiuuerit et acquisiverit, ac piar-
dictus Ricardus Weston ad tunc, scilicet, pnx-
dicto decimo die Julii anni* supnuiiLti^, a\ uJ
Turrim London prxdictain, in p-.irochta et
warda pradictis sciens venenum predict urn, vo-
catum Mercury sublimate, fore inortale \eoe*
num, idem Ricardus Wo ton postea, scilici-*,
pnedicto decimo die Julii minis supradictis
apud Turrim London pra-dictam, in parochia
et warda praedictis, venenum irajfiirtuni, voca-
tum Mercury sublimate in pluccuti*, Angliob
tarts, posuerit ; et venenum pra dictum, voca-
tum Mercury sublimate cum placcnti* iliis ari
tunc, scilicet, pratdicto decimo die Julii annis
supradictis, apud Turrim London pnedictam in
parochia ct uarda praedictis, mibcuci it ; ct pla-
ceiitab praidictas cum veneno pnedicto, vocato
Mereuiy sublimate ad tunc, scilicet, pnedicto
decimo die Julii annis supradictis, apud Tunin
London pnedictam iu par&rhia et warda pre-
dictia, vitiaverit et infcceiit, ea intentione ut
idem Ricanlus Weston pnetntum Tho. Over-
bury cum veneno pneduto, vocato Mercury
sublimate sic, ut pnefcrlur, per piacfatuui lh-
enrd. Wi-stnn in plnccniis pra^hctis posito, et
cum place mis pisvuictis Mc,ut pra^ertur, mixt«>,
magis celcriter intrrfircret el murdrarct. Ht
pnedielns R^aulus Weston praulictas plarei>-
tas sic, ut pru'ftrutr, per pra.faium Ricanlum
Weston cum \ eueno pruedicto, vocato Mercurr
sublimate mixtas, vitiatas et in feet as, posted,
bcilicct, pnedicto decimo die Julii, annis uikJc*
cimo et fpiadragesimo sexto prsdictis apud Tur-
rim London predictam, in parochia ct ward*
pnvdictis, felon ice, voluntaric ct ex roahtiaw*
pnecogitata tanquain s:dubrein placentao pre-

1013] STATE TRIALS, f* James T. 161G qf Sir Thomas Ova bury. [lftH

fato Thorn « Overbury ad edendum prad merit
ct dederit ; super quo pra'dictu? Thoiuus Over-
bury, credcns pnedicta* placenta* sic, ut pnr-
iertur, per pnrf:itum Ricurdum Wetton cinn
veneno priedicto, vocato Mercury sublimate,
niixtu*, vitintm et iulectas, fore salnbres plu-
centu<»; idim Thomas Overbury postea, scili-
cet, pr.i'J'cto decimo die Julii, minis uudccinv)
et quudra^esimn-eexto suprndictis, upud 'lurrim
London predict am, in parochia c*t warda prw-
dictis, placentas praedictus *»ic, ut pra.»fertur, per
pre fat om Ricurdum Weston, cum veneno prie-
dicto, yocnto Mercury sublimate, mixta?, vitia-
tas et iutcctns, suinpscrit ct comedvrit.

" Cumquc etiam predict us Ricardu? Wes-
ton, et quidam homo ignotus existens pharma-
copula (AngJice, nu apothecary) Dctun prrc
oculis suis non hahentes, scd instigatioue dia-
bolica moti et seducti, postea, scilicet, quart o-
decimo die Septembris, anno regni nostri An-
glwe, Fran cite et Hibernia? undecimo, et Scotia?
quadnigesimo-scptimo, opud Turriin London
pnedirtani, in parochia et warda pradictis, ex
mulitiis suis pra*cogitatis, quoddam venenum,
vocatum Mercury sublimate in umnu5 suns ob-
tinmmiitet acqmsivenmt, nc praidictus Rica d-
us Weston et pralatus pharmacopeia nd tunc,
scilicet pnedicto quarto-decimo die Septembris,
annis undecimo et quadrascsimo-septimo supra-
dkttis, scienter pnvdictum venenum, vocatum
Mercury sublimate, ulti;n<> mention at inn, fore
taortale venenum, idem Ricnrdtis Weston et
praefatiK phunnacopola posrea, scilicet, pnedicto
quarto-deemio die Septembris annis undecimo
et quadragesiino-Meptimo bupradictis, apud Tur-
riin Tendon pnedictam, in parochia et warda
pnedictis venenum pnedictum, vocatum Mer-
cury sublimate, ultimo inentionatmn, in q nod-
dam cli^terium fAn^licc a t lister) mahtiose,
diabolicc, felon ice ct volnntarie iinpo-uerint, et
disterium prsedicium cum veneno pnedicto, vo-
cmto Mercury sublimate, ultimo mentionato ad
tunc, scilicet, quarto-decimo die Septembris,
annis undecimo et quudragesimo septimo su-
pradictis, apud Turrun Loudon pnedictam in
parochia ct warda prjedictis, vitiaverint ct infc-
terint, ea inteutione ut idem Ri card us West on
€*t pr&hitus pharmncopohi, pnefatum Thorn am
Overbury cum veneno pnedicto, vocato Mer-
cury sublimate, ultimo mentionato, sic ut pne-
tertur, in disterium pnedictum, per pnefatum
Ricardum Weston et predictum phannucopo-
.mn, impositum magis eel enter interfecerenc et
murdrarent; et praedictus pharmacopeia pro
iniquo lucro viginti librarian ci in ca parte dnn-
daram et solvcudaruin, c!is> tori inn predictum
tic at prefer! ur, per prrefatum Ricardum Wes-
ton et ipsuin pharmacopolam pradictawi, cum
veneno pnedicto, vocaio Mercury sublimates
■Itmtotiicittioiisito viriatum et infectum pnefnto
Thome Overbury, tanquam bonuiu tnedicina-
bile et srilutnre ciistcnum pro corpore ipsius
Thome Overbury nd tone, scilicet; praed icto
enarto-decimo die Septembris, annis undecimo
et qitadracesimu-septnno supradictis, apudTur-
ffhn London pnedictam, in parochia et warda
pradictif, fefonice, voluntary et ex malitia sua

pnecogttata suppeditaverint ( Anglicc, did minis-
ter) etm in: esliuu(Anglice, the guts) ipsius lho-
ma* ( )\erbury inluderint (Auglic^did infuse nud
pur up;; et quod pravlicius Ricardus Wesion
ad tunc, scdicer, pried icto qaarto-decimo die
Septembris, an ids undecimo et quadnigebinio-
fteptimo supradictis, apud Turrim London prae-
(hctam, in parochia ct warda pranlictit, felouicc,
voLuntarii', et ex malitia bua pr;ecognittita9
ftierit pra?sens et auxdians eidem phannacopuia
in sup|)editatione ct infusione pradicti clibterii
bic, ut praefcrtur, perprefatum Uicarduin Wes-
ton et prcc dictum pharmacopolam cum veneno
praed icto, vocato Mercury sublimate, ultimo
mcut ionato, vitiati et infecti, in intesiina prce-
dicti Tboma? Overbury; et quod immediate, .
tarn post praed ictas separales capti6nes et co-
mesturas separalium venenorum prsedictorum,
per praelatum Thomam Overbury in forma pras*
dicta, quain post prsdictam iutusionem et sup-
peditationem clisterii predicti in intestinas pre-
dicti Thoma? Overbury, per prxfatum pharma-
copolam in forma pnedicta, idem Thomas
Overbury apud Turrim London praedictam, hi
parochia et warda predict is Kgrotavcrit, et in
diversa genera morborum, tarn ration e proedic-
tnrum captiuuem el coraobturarum separalium
venenorum prsedictorum per prfedictuiu Tho-
mam Overbury in forma praidicta, quain ra-
tione iurubionin et suppeditationis clisterii pra>
dicti in intestina ipsius Thoina; Overbury, per
prat fat u in pharmacopolam in forma pnedicta,
inridcrir, ct in corpore suo vane distemperatus
et di«turbatus devenerit: et praedictus '1 nomas-
Oveibury de separalibus venenis pnedictis ct
operutione inde pnedictis separalibus teinpori-
bus, tarn caption is et corner tune separalium ve-
nenorum predictor uin per prsfatum Thomam
Overbury in forma predictn, quain pra?dict9B
in fusion is et sujjj ed'tationis clisterii pricdicti in
in test! oa ipsius Tfioinuj Overbury per prasfatum
pharinacop>duin in forma pnedicta usque in
quintum deciutum diem S'ptciubris, anno iei;m
nostri An^lia) l'Yancia* et Hdiernias undecimo,
ct Scotia* quadragesi mo septimo tupradiais,
apud Turrim London pi aidictim, in parochia et
warda pnedictis, gravitcr langnebat et intoxi-
catus luit ; quo quidem quinto-ilei'iino die Soj>-
tcinhri*, annis undecimo et qu ad ragesimo- sep-
timo supradietis, pned ictus Thomas Overbury
apud lurrim 1/Oiidon pnedictnin, in parochia
et warda predict is de sepamlibus venenis pne-
dictis obiit veuerintus : et sic praedictus Ricar-
dus Weston pnrfatum Thomam Overbury modo
ct forma supnulictis, felonicb voluntarife et ex
malitia sua pnecojiitata, vencnavent, interte-
ccrit ct murdravcrit, contra pacem nostram,
coronam et dijjniuitein nostras, et in jurium et
legum nostrarum coiitemptmu manifestum, ex
in pessiinum exemplum omnium aliorum in tali
castt rielitiquentium, nee non contra formani
statuti in hujustnodi casn editi et provisi.

<( Robertas Karr nuper comes Somerset, per
nomen Robert i com it is Somerset nuper de pa-
rochia Sanct;B Margarets in Westui. in comi-
tatu Middlesex indictatus rait, pro eo quod
ipse, Deum pre oculis sub -non habens, aed

1015] STATE TRIALS, HJame.I. [616.— Trial* qf the Mirdmrt

[1016

instigatione diabolic! mot us et seduetus, ante
felon iain et murdrum pradictu, per pre fa turn
Ricarilum Wtston modo et forma prsedictis
felon ice facta et perpetrata (videlicet) octavo
die Maii anno regm nostri Anplia?, Francis,
et Hiberniu* undecimo, et Scotias quadiage-
simo-Sjexto suprudictis, pradictuni Ricurdam
Weston apud pradictam parocluam Sancta?
Margaretae in VVcstm. iu dicto comitatu Mid-
dlesex ad feloniam et murdrum praedicta modo
et forma predict is faciemla et perpetranda ma-
litiosc, felonicc, voluularie etex malitia sua pra>
cogitata, incitavit, movit, prsecepit, conduxit,
auxiliutus fuit, abettavit, procuravit et consuluit
contra pacem nostram, coronara et dignitatem
nostras, nee uon contra fonnain statuti in hujus-
modi casu editi et provibi, prout per indictamcu-
tuni pnedictum in curia nostra coram nobis dc
Kecordo remanent*, plenius liquet et apparct.

'• Cumque prafatus Robertas Karr nuper
comes Somerset, super pranlictam inquisitiouem
in modo et forma prsdictis captain, de et
super accessariis felon iae et murdri pradicto-
rum, ante feloniam et murdrum ilia facta et
perpetrata in eadeni inquisiiione contenta men-
tionata, arrectatus, convictus, attinctuset adju-
dicatus exist it, prout per record um hide pknius
liquet et apparet.

*' Sciatis quod Nosf Oculis verc rcgiis et
gratiosisprxmissa nmientes, nee non gratissiina
et fidelissiraa servitia qua 1 nomas *Karr de Far-
niherst in regno nostro Scotia; miles, pater .
prefuti Roberti nuper Comitis Somerset, tnm
pnecharissime matri nostra? dominx Mar ire
nuper Scotia; et Francise Regiua?, ob etijus
causam pradictus Thomas Karr exilium ct for-
tun arum suaruin jaciuram et ruinas constanti
animo ct fide passu? est, quaui- nobis ipsis
lumma cum fide et alacritate multifarifc prac-
stiterit, animo benigno recolentes, pietateetiam
m )ti erga ipsum nuper comitem Somerset et
irmocentero sobolem suam ; qui etiaiu ipse
Kobertus multa fidclia et pcrquam acceptabilia
servitia nobis ante bac impendit.

" De gratia nostra speciuli, ac ex ccrta sci-
entia et inero motn nostris, purdouavimos, re-
misimus, et relaxavimns, ac per pra»sciites, pro
nobis, hacredibus et succes<tnribus nobtri>, p;ir-
rJonamus, remittimus et relaxainus praelato Ro-
berto Karr nuper comiti Somerset, alias dicto
Roberto commuuiter dicto comiti Somerset,
alias dicto Roberto nuper comiti Somerset, aut
quocunque alio nomine, cognomine, sive addi-
tione nominis vel coguominis officii, honoris,
dignitatis, loci vel iocorum idem Robertus
Karr sciatur, censeatur, vocetur sive nuncupe-
tur, aut nuper sciebatur, censebatur, vocabatur
sive nuncupabatur, omnes et oinuimodas con-
spirationes, felon i as, abettationcs, procura-
tionem incitationes, motiones, coufortationcs,
manuteniiones, praeceptiones, auxiliationes,
conducliones, man data, consilia, crimiiia, trans-
gression es, male facta, olfensa et delictaqusccun-
que in indictamento sive inquisitione praedicta
specificate, mortem, occisiouem, necem, veue-
nationem, in toxical ionem, feloniam, et feloni-
cain interfectionern predict! Tbomai Overbury

militis, in aliquo tangentia siv* concernentia :
Acaccessaria eorundem tain ante factum qoam

f)Ost factum, ac fogam et fugas superinde facta?,
icet idem Robertu* Karr nuper cornea Somerset
de prasmissis vel aliquo pnumissoruin indictatus,
impetitus, appellatus, arrectiitus, utlagatus, con-
victu*, condempnatus, attinctus sive adjudicates
existit etnon existit,aut inde indictari,Jmpetiri,
appellari, rectari, utlagari, couvinci, condemp-
nari, attingi sive adjudicari contigerit in futurum;
ac omuia et singula indictamenta, judicia, con*
demnationes, cxecutiones, poena* mortis, poenas
corporales, uecuni arias punitiones, imprisons-
menta, restnetiones ad locum certuni vel loca
certa, (Anglice confining) pecnas et pcenahtates
quascunque, de, pro, sive concernentes mortem,
occisioncm, necem, venenationem, iotoxica-
tionem, feloniam et felonicam interfectionern
predicti Thomas Overbury, militis, in aliquo
tangentia sive concernentia : ac accessaria eo-
rundem tarn ante factum quam post factum, tc
fugam et fugas superinde facias, licet idem Ro-
bertus Karr nuper comes Somerset de preniis-
sis vel aliquo prsmissorum indictatus, impeti-
tus, appellatus, arrectatus, utlagatus, convictus,
condempnatus, attinctus sire adjudicatus ex-
istit vel non existit ; aut inde indictari, impe-
tiri, appellari, rectari, utlagnii, convinci, cuo-
dempiuiri, attingi sive adjudicari contigerit in
futurum ; ac omnia et singula indictamenta, jo-
dick, condemnationes, executiones, poeaas
mortis, pocnas corporales, pecuniarias puni-
tione*, imprisonamenta, restrictiones ad locum
cert urn vel loca ccrta, (Anglice confining) po-
nas et pcenalitates quascunque, de, pro, sive
concernentes mortem, occisionem, neoero, *e-
ncnationem, intoxicatienem, feloniam et fe-
lonicam interfectionern praedicti Thorns Over-
bury, militis, in, super vel versus ipsum Rih
hertum Karr nuper comitem Somerset ha-
bita, facta, reddita, sive adjudicata, aut im-
posterum liabenda, fienda, reddeuda, sive ad-
judicanda; aut qua; not versus ip»um Rober*
tum Karr nuper comitem Somerset, pro pra>
mUsis vel aliquo pnemissorum habuunus, ha-
bemus *eu i in posterum habere potuimus, aut
haredt* vel successores nostri ullo modo ha-
bere potrrint in futurum.

" Pardonavimus insuper, ac pro nobis, bsre-
dibus et successoribus nostris remittimus, par-
donamus et relaxamus prafato Rob. Karr nu-
per com. Somerset omnes et singuias uUagaria,
si qua? versus pnedictum Rob. Karr nuper co-
mitem Somerset, ratione sive occasione pnenift-
soruin, sive eorum alicujus promulgatse fuerint,
sive imposterum erint promulgandae ; ac omnes
et omminodas sectas, querelas, impetitiooes et
demanda quscunque, qua nos, vessus ipsus
Hobertum Karr nuper comitem Somerset, pro
prxmissis vel i.liquo prsmissorum babuimus,
habemus, scu iu futurum habere potuerimus:
sectamque pacis nostne, qua: ad nos versus ipfsA
Robert urn Karr nuper cuinitem Somerset per-
tinct scu pertinere poterit ratione praimissonuD,
sive eorum alicujus, et firmain pacem nostram
eidem Roberto Karr nuper comiti " ""*
danius et coocedimus per pracseates.

1017] STATE TRIALS, 14 James I. 1(510 — qf Sir Viomas Overbuy.

[101$

" Nolentes quod idem Robertus Karr nuper
conies Somerset, per vicecomites, justiciar ios,
escaetores, ballivos sive alios ministros nostros
occasionibus prsedictis seu eorum aliquo, rooles-
tetur, occasionetur, perturbetur, seu in aliquo
gravetur; licet idem Robertus Kerr, nuper
comes Somerset, uon inveuiat sumcientes raa-
nucaptiones sive securitates, juxta formam et
cfiectum cujusdain actus in parliainento domini
Edwardi nuper regis Anglis tertii progenitoris
nostri, anno regni sui decimo, apud Westrao-
nasterium tento, editi, de se bene gerendo,
exnunc, erga nos, hseredes et successores
nostros et cunctuni populum nostrum.

" Sciatis ulterius quod nos, de ubcriori gratia
nostra speciali, et ex certa scienta et mero motu
nostris, pro nobis, lueredibus et successoribus
nostris concedimus prefato Robertus Karr,
nuper comiti Somerset, et hseredibus suis, quan-
tum in nobis est, quod idem Robertus Karr,
nuper comes Somerset, de catero plene ct in-
tegre adjudicetur, habeatur et reputetur in lege
de et in eisdem hujusmodi et consimilibus ho-
nore, statu, ordine, dignitate, stilo, sanguine, ct
loco honoris et precedential, ad omnes inten-
tiones et proponta, ac si predicts felon it, ve-
nenatio, iutoxicaiio et fclonica interfectio pras-
rati Thomas Overbury, militis et nccessaria
eorundcin, et predicts conspirutiones, felon ia^
nbettattoues, procurationes, incitationes, mo-
fiones, confortationes, proscriptiones, auxilia-
tiones, condemnationes, mandata, concilia, et
alia malefucta, transgressiones et offense, per
ipsum, per se solum, aut cum aliis nunquam
facta commissa sive perpetrata fuissent, et
prout praedictae eonvictiones, condemnationes,
judicla, utlagaria sive attincturx nunquam ha-
bita, data, seu proumlgata fuissent : ac euudem
Robertum Karr, nuper comitem Somerset, et
luerede* suos ad omnia et singula dignitates,
status, prameminentias sanguinis, loci honoris,
ordinis et pracedentin qua?cunque, que idem
Robertus Karr, nuper comes Somerset, ratioue
aliquot uni prxdictorum convictionum, judici-
orum, ullagariarura sive nttincturarum, seu
eorum alicujus, amisit seu forisfecit plenarie
quantum in nobis est da in us, reddimus et resti-
tuimus per presenter, adeo plene, libere et in-
tegre ad omnes intentiones et proposita, ac si
idem Robertus Karr, nuper comes Somerset,
prsdicta felonia aut alia malefacta nunquam
commisisset ant perpelrasset ; aut pro eidem
indictatus, arrectatus, convictus, mlagatus aut
attinctus nunquam extitisset: qnodque idem
Robertus Karr, nuper comes Somerset, et ha>
redes sui de catero et deinceps (quantum in
nobis est) sunt et erunt in lege capaces et ha-
bile* in sanguine, ac de csrero et deinceps fore
hseredes ad omnes et singulos antecessors liue-
ales sive collaterals suos quoscunque, et
(quantum in nobis est) ad petendum, haben-
dum, bsreditandum et gaudendum omnia et
singula, honores, maneria, dominia, terras, jura,
titulos, actiones, et hereditamenta quascunque
imposteruui descendentia seu devementia, per
descensum hiereditariura ab aliquo antecesso-
rum suorum quorumcunque. *

" Et ulterius de ampliori gratia nostril spe-
ciali, ac ex certa scientia et mero motu nostris
volumus et concedimus per praesentes, pro nobis,
hatred ibus et successoribus nostris, prsfato*
Roberto Karr, nuper comiti Somerset, h&redi-
bus et assignatis suis, quod ha* literal nostra)
patentes, et omnia et singula iu eisdem contenta
vel irrotulamentum earundem, erunt in omnibus
et per omnia finna?, vaiidac, bona;, sumcientes
et effectuales in lege erga et contra nos, Iiav-
redes et successores nostras, tarn in omnibus
curiis nostris quam alibi infra regnum nostrum
Anglnr, absque aliquibus con 6 r m at ion i bus, li*
ceutiis vel tolerationibus, de nobis, hxredibus
vel successoribus nostris per pradictuin Rober-
tum Karr, nuper comitem Somerset, aut hse-
redes sive assiguatos suos, procurandis vel ob-
tinendis ; quodque impostcrum idem Roberjtus
Karr, nuper comes Somerset, ulk> modo non
judicetur, arrectetur, impetatur, vexetur, seu
gravetur de, pro, vel concernente mortem, oc-
cisionem, necern, venenationeni praedicti Tho-
inaj Overbury militis qualitercunque, seu quo-
cunque modo idem Thomas Overbury miles ad
mortem suam devencrit : non obstante statu to
in parliainento domini Ricurdi, nuper regis An-
gliaj secuodi, anno regni sui decimo tertio, tento,
edito : et non obstante male aut non vere reci-
tando vel mentionando pnedictum indictamen-
tum sive inquisitipnem superius in prasentibm*
mentionatum, vel aliquam inde parcellam : et
non obstante non recitando vel non mentio-
nando aliquam inquisitionem de, pro, aut con-
cernentem pramissu per prasentes pardonata
sive relaxatu, aut eorum aliquod vel aliqua, aut
aliquo alio statute, actu, ordinatione, provi-
sione, restrictione, materia vel re, in contra-
rium inde non obstantibus. — In cujus rei, &c.
Teste rege apud Westmoiiasterium septiino die
Octobris. Per Breve de Privato Sigillo."

When king Charles came to the crown, So-
merset used great solicitations for the recovery
of his estate; for which end he presented the
following Petition :

" To the King's most Excellent Majesty : The
humble Petition of Robert earl *of So-
merset.

"Shcweth; That in the year 1616, after
your petitioner's troubles were over, the king
(your majesty *s father) was pleased by the earl
of Suffolk, the Lord Treasurer, the earl of Wor-
cester, Lord Privy Seal, and the duke of Rich-
mond, Lord Steward, to make known to your
petitioner his favourable intentions towards
him, as well touching bis pardon and enlarge-
ment, and the payment of his debts, as for his
estate, of which tltey shewed him that his ma-
jesty did mean to take some part to the crown;
but would make up to your petitioner in other
lands to as much in value : and in particular,
that with a manor which he had in Northamp-
tonshire, of 1,000/. per aim. there was 4,000/.
of the king's lands to be given him, which should
be improvable, aqd be esteemed at 6,000/. per
ann. But vour petitioner, in that he had never
taken any lands of gift from the king, as for

1019] STATE TRIALS, 1 1 James I. \6\0— Trials qfthe Murderers, S;c. [1020

tome other reasons, did delay to take hold rf
Uiat oiler, desir.ng tlrut he* might he ullcv.ed to
keep time estates hi -h he had turme/iy ;;ot,
without {Htejudicc t> his majesty or any j .msoii
In which hope he rt-ird, mml he jwuun (Iim
some pieces of it had U en disposed o:. W! t ve-
upon, being urged bv his vim's lVien-!s, he w is
content, in the behalf of her and hi^ d msli'iT,
to give way that they should sue to l:i-» majes y
for the performance of that which h id been
proffered to your petitioner ; hut in tiiat he
would not appear therein himself, (djablint:
lest thut might be understood to imply an a
sent on his part to that which had been (iun-r
with hia estate) it was tiiven otherwise thun an
it was at first intended. Not withstand ins;
whereof, and that your fwtitiontr continued in
tho same mind, without craving any reparation
therein ibr the space of eight or nine years
after, yet he found cnu*e at l.r»t to sue both for
his freedom and pardon, and fir that part of
hi? estate which rested in the crown; which
pardon he had not nboie f-»ur months before
Old took the king. And his muji*:y beincr
moved a little before concerning y.mr peti-
tioner's estate (he U-mg then at Newmarket)
professed thut lie would give order therein at
his coming to Whitehall; which it pleased (*od
to prevent.

" Since that time he hath sued to your ma-
jest v bv the duke of Buckingham, the earl of
Portland, and afterwards by my lord of Can-
terbury, my lord of CottinjiToii, and others. At
the marriage o\' hi* daughter with the now earl
of Bedford, he was bv the dnche^ of Dackmg-
ham aud the earl of Pembroke, ihrsired, f>r rea-
sons they then guw him, not to press your
majesty therein at that time:' bem:: aw.rtd
by them, that whaf-ocvir h,- hid to demand
justly of your mnje>ly, <»r should make appe.ar
to have been ine mt of him bv vmir fnth-i\ vuu

■ • • • *

would do him njit in it. Whereupon he went
on, and engaged himself to the late earl o»"
Redloid, and for hit use, in which he stand*
yet bound, to his exceeding prcai prejudice:
all which notwithstanding, wnd tint lm after-
wards did petition your mije-tv fo; a referciuv
in this s tine cause, \vt he- touhl not then nti-
ther obtain any.

" Your Petitioner bin ably pmveth, That
your majesty will be pleased to take into y«»ur
consideration this suit of h;-, of a nature far
diifciiug from all others that are made to you;
that which he craves being only the performance
ofw!i;rt your father intended for him, in lieu
of so much as he had taken of his, aud the same
no otherwise in vour majistv to five him. than
ns he hath foiborn to take hold of it; and for
which your majesty may conceive there hath
been a muse, and tint ti- >L a common one,
which hath made him so long dispute with him-
self the receipt of so great :i benefit, and
wherein his whole fortune consisted, aud all
that he had been getting for many years. Ilow-
erer, he bemj: the fust that hath left in the
crown that which I it* might have had from it,
may well hope that his confidence will not be

imputed to him for a crime, or that your ma-
jesty (if he had thereby given you any advan-
tage) w« uld th.nk tit to make u*c oi" it, acair.^t
one wh'nii vmi m <v have cause to find, wlien it
come* Li be eiMpiut-d into, that l.e hath been
more than any trusted by the crown, and hnth
more proufs to shew than nny other, thut he
hath deserved well of the king your father, of
your majesty, and of all these your three king-
doms.

•' II i> he-t and humble suit to vour maje^tv
is, That in re -poet of the many erodes he hath
met. with m lii.s present. cause, and that time
hath taken away thojp great men b< fore-men-
tioned, a3 also the earl of Carlisle and other*,
that were employed by the king to your peti-
tioner, or present when he received his njcs;sn*e
fr >m the lord*, there remaining only now some
noble pcivm* of a greater number in this king-
dom, that can testily h> much as will gi\e
credit to i Is'it which is delivered here ; thtt
yum iii.ijci'v will therefore please to be in-
furiiit d by iliem what your petitioner hath fur-
ther to s iv herein for himself, and what they
themselves can report touching the in lent ion J
of the kin*;, your majesty's father, towards him
in this particular which is now sought of yon:
That after the many losses he hath sustained
by his want id* access to your majesty, and the
assistance of those about you, such course may
be taken now at length by your majesty for die
repairing him nt:am, either out of that estate
which was his own, or otherwise, as may accord
• with the purpose of the king your father, with
y »ur majesty's justice, and is due to the demand
of your pet it Knier. — And he shall pray f'>r
your majesty's Imii and happy men."

The rer|iu>t oi ihi^ Petition was never graut-
c;l. and he- and id* countess both died in ol>-
scuriiv.

"Pie Rook called "Tnth hro»ij;ht to Lic'it
by Time," eVrc. part Qd, p. i:W, say?, " After
inv lord of Somerset h;-d been i.-mceeib-d with
as i> shewed in his Peliti.'ii, the earl ot " t'*;riislw
wa^ sent lo him by ?he kini'. wl;o tolil him n«
from h:s ina'ie-tN, lh.it he wis son v lor what
had ]»ast, but he could not hmtler the «'oiirse «»l
ju<fice to lo on. I fit it h ><i c«»ncerncd hi-* oxm
.son, and that t » r< p-.iir hi;n i^aiu he would \\o
what he mirht by law or otherwise. In a few
days after, the I«ord Treasurer and the other
lords came to him Mid spake to the Siinie effect
and as it is in the Pet it i m a while utter, wher
some psecr s of hi^ e«-t.ite wen» passed away
undor the ^ea!s, inv lord William Howard, rot
lady Rcnbury and «>ome of bis own friemlt
came and ihewed b.ru what was done, willinj
him tint he would take care, if not of hiinseit,
yet of his w:fi:aiioe:.ial, and of his children !•€
lmidit have ; whereupnii, he i»ave way to hn*e
hi«» wife writ<: t.'» my lord • f furl isle, to move
the kine at, out that <s:aie which he.d been ten-
dered them before in bis inajc«tv's name;
which letter l>cing sliewed to the kin^, his ma-
jesty wave order to the Lord Treasurer, (lis*
the same fchould be done accordingly, but th*

1021] STATE TRIALS, 13 James I. 101 S^Prttduigsagtmst Sir J. HoUis,2fc. [IQH

and pardon ; which pardon be bad got but four
month* before the king died immediately after
he had his pardon, he moved for that which
rested of his estate, which sir Henry Gibb ac-
quainted the king withaL But the king, with-
out looking upon the paper in which the par-
ticulars were to be shewed him, told sir Henry
that what Somerset had to demand of him in
that matter, he should have it, if he had so
much land in England. This was at Newmar-
ket, a little before the king sickened at Theo-
balds-.— So afterwards when hit majesty came
to the crown, he did by my lord of Buckiog-
iugham, and the other lords he names in the
Petition, coutinue this suit of his without- inter-
mission, but he could obtain no answer, nor
reference, until about -the time that his daugh-
ter was to be married, then by the duchess of
Buckingham's menus, the queen got the king
to promise one, and this my lord Cottington
■ told him of also, but it came no further, only
this, he benefited thereby, that advising with
my lord Cottington upon the time of the refer-
ence, for tlmt he hud the testimony of a noble-
man to produce on his part, who1 was then
troubled with the gout, and 100 miles off in the
country, my lord Cottington bid him get it in
writing, and it would he as weil, and this lord's
testimony, who died soon after, we have in a
letter to my lord Cottington, yet sealed, but
because the reference went uot on, was never
delivered him ; so as here we have this letter
which makes good that part of the Petition,
wluch mentions the particulars of the king's
gift for the estate, and our report for that
which passeth herein Scotland, shews, the con-
tinuance of the king in the same mind- and dis-
position, and sir Henry Gibb is now present
m this kingdom, who wdl testify so much as
hath been delivered here; in his name/'

falling out to be not long before the king's go-
ing into Scotland, it wus expressly delayed till
then, at which time the Lord Treasurer sent to
him, aud let* him know, that he now had order
to make teady two warrants, one o£ lands, and
another of tec-m.-ni rem?, and if he would uot
u*»e means, uud that by h.a own suit, to have
the king put in mind of his first directions, it
was like lie should have the worst of them re-
turned to him ; but the other apprehending
what was meant thereby, would not be induced
to make any such suit, for the reason he gives
in the Petition, wherefore the king being in his
way as far as Huntingdon, the warrant with
the fee-farms was sealed with the want of 1,000/.
a yesr, besides of the sum formerly offered to
In in, which altogether took off, of the value of
the whole, about the one half. This made some
of his court friends then in Scotland with the
king, to acquaint his friends here, with those
passages, whereupon iiis sisters, and divers of
our greatest lords, went to the king, to whom
and to that which was desired his majesty, he
made answer. — But after the king's return into
England he continued as before without mov-
ing either for his estate or any thing else, until
the king fell dangerously sick at Uoys'ou, then
he hastened to puss through those fee-farm
rents, taking them for a maintenance in the

Jjrejeut, or in part of tlmt which was meant for
)iin, attendmg a litter time when to move for
the rest, since there was nothing could set him
right, or repair him in all, hut a reversal of the
judgment, which he sought no otherwise than
as the means whereby he might in his own per-
son, be enabled to hold an estate or sue for
one, for it seems he had some hold which he
would not quit, of a hope of having that which
had been his own formerly, hut tlie times going
oq to the worse for him, he found cause seven
or eight years after, to seek both for his liberty

1 10. The Proceedings against Sir John* Hollis, Sir John Went-
worth, and Mr. Lumsden, in the Star-Chamber, for traducing
the Publick Justice : 13 James I. a. d. 1615.

In Camera Stcllata decimo NnvembrUy 13 Jacobi

Regis, 1C15.

Present,

1 HE Lord Chamberlain, archbishop of Can-
terbury, lord Crew, lord steward, earl of Pem-
broke, bishop of London, bishop of Winton,
lord Zouch, lord Knowles, secretary Win wood,
Chancellor of the Duchy, sir Thomas Lake, and
the three Chief Justices, being sat, there were
brought to the bar, sir John Hollis, (now lord
Houghton) sir John Wentworth,and Mr. Lums-
den, a Scotish gentleman, as offenders and pri-
soners, committed by the Lords of the Council.
Mr. Attorney-general (sir Francis Bacon) did
inform against ihem ore terms in this manner :
The offence wherewith I shall charge the
three offenders at the bar, is a misdemeanor of

a high nature, tending to the defacing and scan-
dal of justice in a great cause capital. The par-
ticular charge is this : .

The king, amongst many his princely virtue?,
is known to excel in that proper virtue of the
I imperial throne, which is Justice. It is a royal
virtue^ which doth employ the other three car-
dinal virtues in her service. Wisdom to disco-
ver, and discern nocent or innocent: fortitude
to prosecute and execute: temperance, so to
carry justice as it be not passionate in the pur-
suit, nor confused in involving persons upon
light suspicion nor precipitate in time. For
this his majesty's virtue of justice God hath of
late raised an occasion, and erected as it were
a stage or theatre much to his honour for him
to shew it, and act it in the pursuit of the un-
timely death of sir Thomas Overbury, txa&

1023] STATE TRIALS, 13 James I. 1615.— Proceedings against Sir J. Holla, fa [1021

therein cleansing tlie laud from blood. For, my
lords, it* blood spilt pure doth cry to heaven in
God's ears, much more blood dttiled with poi-
son.—This great work of his majesty's justice,
(he more excellent it is, your lordships will soon
conclude the greater is the offence of any that
have sought to uffront it, or traduce it. And
therefore, before I descend unto the charge of
these offenders, I will set before your lordship*
the weight of that which they have sought to
impeach; speaking somewhat of the general
crime of imprisonment, and then of the parti-
cular circumstances of this fact upon Overbury ;
and thirdly and chiefly, of the king's great and
worthy care and carriage in this business. —
This offence of impoisonmeut is most truly fi-
gured in that device or description, which was
made of the nature of one of the Roman ty-
rants, that he was In turn sanguine muceratum,
mire mingled or cemented with blood : for as
it is one of the highest offences in guiltiness, so
it is the basest of all others in the mind of the
offenders. Treasons, ma»num aliquidspectant :
They aim at great things; but this is vile and
base. I tell your lordships what I have noted,
that in all God's books, (both in the Old and
New Testament) I lind examples of all other
offences and offenders in the world, but not any
one of an impoisonmeut or an impoisoner. 1
And mention of fear of casual impoisonment : |
when the wild vine was shred into the pot, they ;
came complaining in a fearful manner; « Master, j
' mors in olla.' And I find mention of poisons |
of beasts and serpents ; ' the poison of asps is
' under their lips/ But I hud no example in
the book o'C God of impoisonment. I have
sometime thought of the words in the Psalm,
' let their table be made a snare.' Which cer-
tainty is most true of impoisonment ; fur the
table, the daily bread, for which we pray, is
turned to a deadly snare: but I think rather
that that was meant of the treachery of friends
that were participant of the same table.

But let us go on. It is an offence, my lords,
that hath the two spurs of offending ; sp<* per-
fcitndi. and spn eclandi : it is easily committed,
"and easily concealed.

I: i* an offence that is ' tanqunm sagitta

• r.-vie \olans;* it i? the arrow that flies by

ruht. It discerns not whom it hits; for many

: .r.io isc poison is laid for one, and the other

:*kf* :I : a* nl Sandcr\ case, where the poi-

«w* *w"f «a> lJ'd l"or lnc nether, a»d was

;»ker iir : ■* she child, and killed the child :

*!»:.*.■ /:.::■ a: notorious case, whereupon the

,.liV.{ ..- >; Hra. Is cap. 9. was made, where

: ^ -nrrv K- .^ :•' rci*m but one or two, poison

i "*l. n;i mv i ;:ioev»i lot" barm that stood in

i- -iv» " ■ * i"4^*^P °* Rochester's house ;

. "V-.-i ?.u •« ,vs:W «r gruel was made,

*.x • •' hi* bishop's family were

r. v* **:"thc poor that came

*iv. t m ?uil the broken pot-
's^ i***" '*¥* M' p*1**111^. And ;
, . ««ui » d *vwu»rt himself, or i
...„,■. *»« »i^« talk of iuipoi-

■ ^ x^t . vr i have uo cne-

* . — ■»

-i » \»i>

V >

mies ; nor I have nothing that any body should
long for. Why ? that is all one ; for lie may
sit at table by one tor whoro-poison is prepared,
and have a drench of his cup, or of his pottage.
And so, as the poet saitli; ' Concidit infelix
' alieuo vulnere ;' he may die another man's
death. And therefore it was most gravely,
and judiciously, and properly provided by thai
statute, that impoisonment should be liigb-
t reason ; because whatsoever offence tendeth to
the utter subversion and dissolution of human
society, is in the nature of high- treason.

Lastly, it is an offence that I may truly say
of it, ' non est nostri generis, nee sanguinis.'
It is (thnnks be to God) rare in the Isle of Bri-
tain : it is neither of our country, nor of our
church ; you may lind it in Rome or Italy.
There is a region, or perhaps a religion for it :
and if it should come ainongot us, certainly it
were better living in a wilderness than in a
court.

For in the particular fact upon Overbury.
First, for the person of sir Thomas Overbury :
I knew the gentleman. It is true, his mind
was great, but it moved not in any good order;
yet certainly it did commonly fly at good things;
and the greatest fa nit that I ever heard bv him
was that he made his friend his idol, liut I
leave him as sir Thomas Overbury.

But take him as he was the king's prisoner
in the Tower ; and then see how the case
stands. In that place, the state is as it were
respondent to make good the body of a pri-
soner. And if any thing happen to him there,
it may (though not in this case, yet in some
others) make an aspersion and reflection upon
the state itself, i or the person is utterly out
of his own defence, his own care and providence
can serve him nothing, lie is in custody and
preservation of the law ; and we have a maxim
in our law, (as my lord the judges know) that
when a slate is in preservation of law, nothing
can destroy it, or hurt it. And God forbid but
the like should be for the persons of those that
arc in custody of law ; and therefore this was
a circumstance of great a^gra\ation.

Lastly, To have a man chased to death in
such manner (as it appears now by matter of
record ; for other prixacy of the cause I know
not) by poison after poison, first roseacre, tlien
arseuick, then mercury sublimate, then subli-
mate again ; it is a thing would astonish man's
nature to hear it. The potts feign, that the
furies had whips, that they were corded with
poisonous snakes; and a mun would think
that this were the very case, to have a mau
tied to a post, and to scourge him to death
with snakes: for so mav trulv be termed dim-
sity of poisons.

Now I will come to tliut which is the prin-
cipal ; that is, his majesty's princely, yea. and
:is I may truly term it, »acred proceeding io
this cause. Wherein 1 will first sj>eak ofths
temper of bis justice, and then of the strength
thereof.

First, it pleased my lord chief justice to let
me know, (that which I heard with great com-

1035] STATE TRIALS, 13 James I. 1615.— for traducing the Public Jiuticc. [1090

fort) which was the charge that his majesty
gave to himself first, and afterwards to the com-
missioners in this case, worthy certainly to he
written in letters of gold, wherein his majesty
did fore-rank and make it his prime direction,
that it should he carried without touch to tiny
that was innocent ; nay more, not only without
impeacbmeut, hut withuut aspersion : whibh
was a most noble and princely caution from his
majesty ; for meu's reputations are tender
things, and ought to be like Christ's coat, with-
out seam. And it was the more to be res-
pected in this case, because it met with two
mat persons ; a nobleman that lis majesty had
favoured and advanced, and his lady being of a
peat and honourable house : though 1 think
it be true, that the writers say, that there is no
pomegranate so fair or so bound, but may have
a perished kernel. Nay, I see plainly, tliat
in those excellent papers of his majesty's own
hand-writing, being as so many beams of jus-
tice issuing from that virtue which doth shine
in him ; I say, I see it was so evenly carried
vitboat prejudice, (whether it were a true accu-
lation of the one part, or a practice of a false
iccosation ou the other) as shewed plainly that
bis majesty's judgment was * tanquam tabula
: rata/ a* a clean pair of tables, aud his ear
: tanquam janua aperta,' as a gate not side open,
but wide open to truth, as it should be by
ittle and little discovered. Nay, I see plainly,
fat at the iii st (till farther light did break
brth) bis majesty was little moved with the
irst tale, which he vouchsafeth not so much as
Jw name of a tale ; but calleth it a rumour,
vhich is an headless tale.

As for the strengtti or resolution of his ma*
esty*» justice, I must tell your lordships plainly :
[ do not marvel to see kings thunder out justice
n cases of treason, when thev are touched
bemselves; and that they arc * vindices do-
lorii proprii :' but that a king should * pro
amore juslitue' only, contrary to the tide of
ib own affection, for the preservation of his
>copJe, take such care of a cause of justice,
bat is rare, and worthy to be celebrated far
ind near. For, I. think, C may truly afiirm,
hat there was never in this kingdom, nor in
my other kingdom, the blood of a private gen-
leman vindicated, ' cum unto motu regni,' or
■o say better, ' cum tanto plausu regni/ — If it
lad concerned the king or prince, there could
lot have been greater nor better commissioners

0 examine it. The term hath been almost
■urned into *ju%titiumy or vacancy ; the peo>-
|ue themselves being more willing to belookcrs-
wi io this business, than to follow their own
There hath been no care of discovery omitted,
tio moment of time lost. And therefore I will
conclude this part with the saving of Solomon,

1 Gloria Dei celare rem, et gloria regis scruturi
1 rem.' And his majesty'* honour is much the
greater, for that he hath shewed to the world
ru thii business, as it luih relation to my lord
r>f Somerset, (whose case in no sort I do pre-
judge, being ignorant of the secrets of the cause,
hut taking him as the law takes him hitherto,

VOL. II.

for a suspect) I say, the king hath to his great
honour shewed, that were any roan in such a
case of blood, as the signet upon his right
hand, (as the scripture says) yet would lie pull
him off.

Now will 1 come to the particular charge of
tliese gentlemen, whose qualities and persons I
respect and love ; for they are all my parti-
cular friends : hut now I can only do this duty
of a friend to them, to make them know their
fault to the full.

And therefore, first, I will by way of narra-
tive declare to your lordships the fact, with the
occasion of it ; then you shall have their con-
fessions read, upon which you are to proceed,
together with some collateral testimonies by
way of aggravation : and lastly, I will note and
observe to your lordships, the material points
which I do insist upon for their charge, and so
leave them to (heir answer. And this I will
do very briefly, for the case is not perplexed.

That wretched man Weston, who was the
actor or mechanical patty in this impoisou-
raent, at the first day being indicted by a very
substantial jury of selected citizens, to the num-
ber of nineteen, viho found bill a vera, yet ne-
vertheless at the iirst stood mute ; but after
some days intermission, it pleased God to cast
out the dumb devil, and that he did put him-
self upon his trial ; find was by a jury alio of
great value, upon his confession, aud other
testimonies, found guilty : so as thirty-one suffi-
cient jurors have passed upon him. Where-
upon judgment and execution was awarded
against him. After this, being in preparation
for another world, he sent for sir Dioinas
Overbury's father, and falling down upon his
knees, with great remorse and compunction,
asked lum forgiveness. Afterwards, again, of
his,o\vn motion, desired to have his like prayer
of forgiveness recommended to his mother,
who was absent. And at both times, out of
the abundance of his heart, confessed that he
was to die justly, and that he was worthy of
death. And after, again, at his exerution
(which is a kind of sealing-time of confessions),
even at the point of death, (although there
were tempters about him, as you shall l>enr by
and bye) yet he did again cdnhrm puhlickly, that
his examinations were true, and that he had
been justly and honourably dealt with. Here
is the narrative which induced] the charge.
The charge itself is this :

Mr. Lwnsdeu, whose offence stands alone
single (the offence of the other two being in
consort ; and vet all three meeting in their end
and center, which was to interrupt or deface
this excellent piece of justice:) Mr. Lumsden,
1 lay, mean while, between Weston's standing
unite and his trial, takes upon him to make a
j;. >st ful«e, odious, and libellous relation, con-
tain inn as many untruths as lines, and sets it
down in writing with his own hand, and delivers
it to Mr. Henry Gibb, of the bed-chamber, to
be put into the king's hand ; in which writing
lie doth falsify and pervert all that was done
the first day at the arraignment of Weston;

% v

1097] STATE TRIALS, IS James I. 1 0 1 5.—Pr«xetiiigi again* Sir J. Hollis, *c. [1091

turning the pike and point of his imputations
principally upon my lord chief justice of Eng-
land, whose name (thus occurring) I cannot pass
by, and yet I cannot skill to flatter. But this I
will say of him, and I would say as much to
ages, if I should write a story ; that never man's
person and his place were better met in a busi-
ness, than my lord Coke and my lord chief jus-
tice, in the cause of Overbury.

Now, my lords, in this offence of Mr. Lums*
den's, for the particulars of these slanderous
articles, I will observe them unto you when the
writings and examinations are read ; for I do
not love to set the gloss before the text. But
in general I note to your lordships, first, the
person of Mr. Lumsden : I know he is a Scots
gentleman, and thereby more ignorant of our
laws and forms: But I cannot tell whether this
doth extenuate his mult in respect of ignorance,
or aggravate it much, in respect of presump-
tion; that he would meddle in that that he
understood not : but 1 doubt it came not out of
his quiver ; some other man's cunning wrought
upon this man's boldness. Secondly, I may
note unto you the greatness of the cause,
wherein he being a private, mean gentleman,
did presume to deal. Mr. Lumsden could not
but know to what great and grave commis-
sioners the king had committed this cause; and
that his majesty in his wisdom would expect
return of all things from them to whose trust he
had committed this business. For it is the part
of commissioners, as well to report the business,
as to manage the business; and then his ma-
jesty might have been sure to have had all
things well weighed, and truly informed: and
therefore it should have been far from Mr.
Lumsden to have presumed to put forth his
hand to so high and tender a business, which
was not to be touched but by employed hands.
Thirdly, I note to your lordships, that this in-
fusion of u slander into a king's ear, is of all
forms of libels and slanders the worst. It is
true, that kings may keep secret their informa-
tions; and then no man ought to enquire after
them, while they are shrined in their breast.
But where a king is pleased that a man shall
answer for his false information ; there, 1 say,
the false information to a king exceeds in of-
fence the false information of any other kind ;
being a kind (since we are in matter of poison)
of imprisonment of a king's ear. And thus
much for the offence of Mr. Lumsden.

For the offence of sir John Wentworth and
sir John Hollis, which 1 said was in consort, it
was shortly this : At the time and place of the
execution of Weston, to supplant his Christian
resolution, and to scaudulize the justice already
past, and perhaps to cut otf the thread of thai
which is to come ; the*e gentlemen, with others,
came mounted on h .rsrhack, and in a ruffling
A id facing manner, put themselves forward to
re-examine Weston upon questions : and what
questions? Directly cross to that that had l>eeti
tried and judged ; for what was the point tried ?
That Weston had poisoned Overbury. What
Iras sir John Wentworth's question; whether

Weston did poison Overbury or no ? A contra-
dictor? directly : Weston answered only, that
he did him wrong ; and turning to the sheriff
said, Yon promised me I should not be troubled
at this time. Nevertheless, be pressed him to
answer ; saying, he desired to know it, that be
might pray with him. I know not that sir
John Wentworth is an Ecclesiastick, that he
should cut any man from the communion of
prayer. And yet for all this vexing of the spirit
of a poor man, now in the gates of death, Wet-
ton nevertheless stood constant, and said, I die
not unworthily i my lord chief justice hath ny
mind under my hand, and he is an honourable
and just judge. This is sir John Wentworth's
offence.

For Sir John Hollis, he was not so much t
questionist ; but wrought upon the other's ques-
tions, and, like a kind of confessor, wished hin
to discharge his conscience, and to satisfy the
world. What world ? I marvel ! It was sore
the world at Tyburn. For the world at GuiU-
Hall, and the world at London, was satisfied
before; teste the bells that rung. But men
have got a fashion how-a-days, that two or
three busy-bodies will take upon them the name
of the world, and broach their own conceits, ss
if it were a general opinion. Well, what more?
When they could not work upon Weston, then
sir John Hollis in an indignation turned about
his horse (when the other was turning over the
ladder) and said, he was sorry for such a con-
clusion ; that was to have the state honoured
or justified : but others took and reported hb
words in another degree : but that I leave, tee-
ing it is not confessed.

Sir John HoIhVs offence had another appen-
dix, before this in time ; which was, that at the
day of the verdict given by the jury, he alio
would needs give his verdict, saying openly,
that if he were of the jury, he would doubt
what to do. Marry (he saith),he cannot tell
well whether he spake this before the jury hid
given up the verdict, or after ; wherein this is
little gained. For whether sir John Hollis were
a pre-juror or a post-juror, the one was to pre-
judge the jury, the other as to taint them.

Of the offence of these two gentlemen in
general, your lordships must give me leave to
say, that it is an offence greater and more dan-
gerous than is conceived. I know well, thatss
we have no Spanish inquisitions, nor justice in
a corner ; so we have no gagging of men's
mouths at their death, but that they may speak
freely at the last hour ; but then it must cone
from the free motion of the party, not by temp-
tation of questions. The questions that are to
be asked, ought jto tend to farther revealing of
their own or others guiltiness; but to use a
question in the nature of a false interrogator/,
to falsify that *hich is rex judicata, is intolera-
ble. For that were to erect a court or commit"
sion of review at Tyburn, against the KingV
Bench at Westminster. And besides, it is •
thing vain and idle : for if they answer accord-
ing to the judgment past, it adds no credit ; or
if it be contrary, it derogateth nothing: BA

1089] STATE TRIALS, 13 James I. 1615.— for traducing the IHMic Justice. [1090

yet it subjected) the majesty of justice to popu-
lar and vulgar talk and opinion.

My lords, these are great and dangerous of-
ferees ; for if we do not maintain justice, jus-
tice will not maintain us.

But now your lordships shall hear the Exa-
minations themselves. Hereupon the Exami-
nations were read.

Mr. Lumsdcn for Answer to this charge said,
that himself was not at the arraignment, but
what he had spokeo, or set down in writing, he
bad received of manj in common discourse ;
*bv being now demanded to justify the same,
lo deny it; and therefore he would confess
thai which was written was false, lie pleaded
ignorance of the law, and that be did it without
any purpose* of prejudice to the public business,
bat ouly as he conceived out of duty ; and be-
cause he had always lived as a gentleman, he
would not so much degenerate from himself
tod his birth, nor so much offend against
human society, as to become a base accuser ;
but would submit himself and lus offence to
[he censure of the court, and, to the favourable
interpretation of their lordships.

Mr^ Attorney replied, that his answer and
mbeaission were modest, and therefore he
irookl not press his offence farther; yet he
rould tell him, that in criminal causes whoso-
ever would raise a slander, and refuse to tell
lus author, he must tell him1 that which the
bws tell him, that he was the author himself.
[lus kind of slandering judges to kings and

E'nces is common. Pophain, a great judge in
time, was complained of by petition to
]ueen Elizabeth; it was committed to four
privy-counsellors ; but the same was found to
lie slanderous, and the parties punished in the
»urt. He likewise said, I may not admit of
iiis new learning ; I hold it not unworthy a
gentleman to discharge his fault upon the first
wthor ; and by the law, the not doing thereof
nakeih him the first author ; so he becomes a
felee accuser of himself.

Sir John Wentworth'% answer was, that he
voald not willingly be conceived to speak more
lere than he had done heretofore. It was true,
hat lie was at the execution of Weston, and
lid ask those questions touching the poisoning
if air Thomas Overbury ; which he did on two
lessons: the one was, because he had seen
Mfaers do the same at the same time, and espe-
ally one Parkes ; and he thought he might do
t at well as he. Another reason was, because
ie not being at the arraignment, and hearing
hat Weston had denied the fact, he was desi-
:«ms to be satisfied of the truth from himself;
ret be purposed not to ask any questions when
ie came thither ; but if to ask questions of a
nan going to execution were offensive to the
tat«> he did humbly submit to their lordship's
ensures.

Sir John Hollit answered, that the matter
ledared against him contained three crimes.
rhe first, that whereas at the first upon the in-
flfcaneat he should fore-judge the jury, by de-
livering his opinion; saving, that hi should

doubt what to do ; and this he confessed, as a
: man perhaps more trickish and curious to give
his verdict or judgment of life or death than
: others : and if a bare word of his opinion
, drawn by discourse (he being but a stand er- by
! in this business) be to he censured, I appeal
to your judgments. His second offence was
| for giving of counsel, and asking questions of
Weston at the execution. He said, he contest
1 lie was there, but carried with a general desire
i which be had to see the execution, as he had
I done in many like cases before. And he had
formerly seen that it was a common thing for
men standere-by to ask questions of those that
were to be executed : and now many asking
this question of the fact of Weston, and he
answering in general terms, I die not unwor-
thily; he also, among many others, did ask
him tlie question (as hath been opened ;) which
was not purposed of him when he came thither,
: but was occasioned bv reason of one that stood
behind him at the gallows, who said to Weston,
that he should confess the truth of this fact, for
if he had had his right, he had been hanged
many years ago : whereunto Weston answered,
fact or no fact I die worthily. Sir John said,
! that Mr. Attorney had so well applied his
I charge against him, that though he carried the
I seal of a good conscience with him, he would
almost make him believe that he was guilty ;
but he hoped their lordships would take the
Jbird by the body and not by the feathers : his
speech, lie said, might be well understood, but
the worst end of it was turned towards him ;
he did but the part of a christian to persuade
Weston to discharge his conscience, and in-
tended not to controvert the law and justice
that had passed on him. As for the testimony
of Bearingbornc, I know not what he is that
hath deposed against me ; but1 it seems he is
some man of trade, against whom I think I
may now put myself in opposition, that my
denial may stand against his affirmation. In
lus youth some of your lordships know, that he
[sir John Hollis] had spent some of his time
in the wars and travel, and afterwards had
lived in place ut court, both in the time of queen
Elizabeth, and lus majesty eight years : he had
served the late most worthy prince, the me-
mory of whom, he said, did grieve him that he
should plead his name at the bar, whom for
the misery of this state it pleased God to take
away ; since whose death he had been as a
fish out of the water. Thus much, he said,
was pulled out of his mouth, by reason of his
testimony produced against him ; but he knew
that not words but his cause must help him out
of this mire. And therefore if their lordships
had determined any thing against him for these
offences, he did humbly submit himself to their
honourable cewsures. — The lord chancellor
said, that tnis deposition of Bearingborne was
not read but in explanation and aggravation,
and not for evidence of condemnation against
sir John Hollis.

Air. Attorney replied upon sir John to this
answer of his, that his speech to Weston was

1031] STATE TRIALS, 13 James L 1015.— Proceedings against Sir; J. Hollisf*c. [10M

occasional, and nut resolved on before his
coining to the execution; that it was new
matter thought upon and devised since Ins
being questioned tor his offence ; for there was
never a word thereof spoken in this examina-
tion : and there this is ihc feather you spoke of,
and not the body. W hereunto sir John Hollii
answered, that they might very well staud to-
gether.

Hereupon sir Edward Coke, the chief justice
of the king's- Hench, pronounced the Sentence ;
*.jhen he said, that he would say of this busi-
ness, and his dealing therein, as Abimelech said
of himself, ' Tu scis, Domine, quod feci in sim-
' plicitute cordis et muuditie manuum ;' and
therefore would also boldly affirm, that there
were none brought into question of this great
business of poison, but such as in his soul and
conscience were apparently guilty : He said he
was no fit man for a common-place ; yet he
had found some records of poisoning which he
would shew : as namely in the treasury 31 Ed.
3, as thfe king indeed had two treasuries, the
one of records, the other of gold and silver ;
where a woman committed adultery, and after
poisoned her husband. And '21 Edw. 1, Solo-
mon le Itoch, a judge, was poisoned by n monk,
who afterwards prayed to be delivered to the
censure of the church ; and lie was denied, be-
cause the same was a wrung to the state to por-
son a judge. And it is to be observed in the
first case, that poison and adultery no together ;
and on the second, that poison and popery go
together. ■ From Edward 3, down to 'lfl Henry
8, (which was a great lump of time) no mention
is made of poisoning any man ; and then a
statute was made, that those tlmt did poison
any body should he boiled to death, and were
first to be put in at the tiptoes. In this busi-
ness, he said, he would tell no news, but he
was not yet at the root ; God forbid that those
kind* of offences should he n use arched and un-
punished, wheresoever they are found : There
are divers sorts of poisoning, by some whereof
a m;m shall die a month or a quarter of a year
after, « ut sic se sentmt mori ;' and shall not
kuow in what manner he is poisoned : as one
Squire, a priest, should have poisoned queen
Elizabeth by poisoning her saddle. This poi-
soning came iin>t from popery. In this case of
Weston he would never confess the indictment,
because the iudictim-nx was, that he poisoned
sir Thomas Ovcrhury with arseniek, roseaker
and mercury sublimate ; whenas indeed it was
not known what poison killed him. Here the
pof>r man conceived a scruple, that' if he did
not know with which of the poisons Overbory
was poisoned, he was not guilty of the offence
laid in the indictment; and therefore said he
was not guilty of the offence. Now ' ut ob-
* strnatur os iniqui,* that the mouth of the
wicked man may be- fully stopped ; after that
it was resolved unto him, that the manner of
killing, laid in the indictment, was not the point
of the indictment, hut the matter of killing; as
if the indictment be, tlmt a man was killed with
ft sword, whereas indeed he was killed with a

dagger ; yet the party is guilty, because the
killing of a man is the point of the indictment ;
then he confessed the fact. And for this gen-
tleman, Mr. Lurosden, a Scotish geutUman, a
nation than he loved well, (and to his majesty
both J'Lnglish and Scotish were equally dear)
' Scoti et Angli nullo discrimine, &c* He that
infuseth into his majesty's ears the least fab-
hood concerning his judges unjustly, is like him
that infuseth never so little copper into coin ;
they both commit a kind of treason ; and for
the matter of it, which wns informed, for
' qui non bene respond et, non respondet ;*
and a little to divert from this business, you,
Mr. Lumsden, were a pandar to the earl of
Somerset, and were his favourer in deed, bat
his follower in evU. ' AfHictio dat intellectual/
let your affliction now give you sense and feel-
ing of your sins ; your service of a pandar is
apparently to be shewed you by a letter under
my lord of Somerset's own hand, and your an-
swer to it. Let it then enter your heart and
soul to assure yourself, that there is now so
safety, protection, nor assurance, but under •
religious faith in Jesus Christ; and that, * radii
' justitisc est pietas,' the foundation and root
of justice is piety. I confers I had a great sus-
picion out of whose quiver the murder came
first ; but because I had no certain proofs, I
would never question them. This resolution of
Weston to be route, was very great. When he
was persuaded by the bishop of London and
Ely to plead, he would not : and after beiflt
promised that if he would speak, he should
(rave a popish priest ; he thereunto answered,
Have 1 refused the godly persuasions of the bi-
shop, of Ixmdon, and shall I answer to a popish
priest? And for your persuasions, Mr. Lums-
den, that you will not be an accuser, this is t
contemptuous answer ; for this is not to be an
accuser, being examined of another to discover
him ; but yotir refusal in this kind of answer is
a manifest contempt : and for the like offence,
a great lady of the land lieth now in the Tower,
only for refusing to answer being examined.
* Quod diabolus ad malum exposuit, Deus id
' bonmn exposuit ;' That which the devil ex-
poseth to evil, God disposeth to good. Thif
refusing to discover an offender, is a contempt
to a master of a family ; if he should command
any of his sen ants to tell him of an offence
committed, and by whom ; and the servant
that is so asked shall refuse to tell him, be shall
be worthy of punishment : much more any
subject being examined by the king's authority
and commissioners, if he shall refuse to make
discovery of the truth. The statute of the 1st
and 2d of ltich. «2, is, that he that doth raise
false news between the king and his nobles,
shall be imprisoned for the space of a year ; I
think fit that Mr. Lumsden's imprisonment
should be for a year, and afterwards, until he
should produce his author. As for sir John
Hollis, his fault of questioning and counsellinfc
it is very great, the same being made after a
verdict ; for if a man commit treason the, 90th
day of May, and soil his lands the $lh day, «*•

f035]

STATE TRIALS,. 1 3 James I. 1615.— 7*e Case of Duels.

[1034

after is indicted thut lie did commit the treason
the 1st day, which goes before the sale, and
after is found guilty of this indictment ; he that
is to lose the land cannot deny tins verdict,
and say the treason was committed the 20th
day, though it concern him for all that he hath
of laying ; if that he that is to be undone by a
verdict shall not speak cross matter to a ver-
dict (as the books of Ed. 3, and Ed. 1, are,
and 11 Hen. 4, 53 Estophel. 137,) what shall
be done to him that having no cause in a mat-
ter capital, wherein he had nothing to do,
would intermeddle? For as the law saith,
4 Turpis est ad miss io ret ad se non pertinentis.'
Sir John said, that it hath been a custom to ask
questions at those times, and that he did usu-
ally go to executions. For bis own part, he
said, that ever since he was a scholar, and had
read those verses of Ovid, Trist. iii. 5.

* Et lupus ct vulpes instant morientibus

' Et quaecunque minor nobilitate fera est/

he did never like it ; and therefore, he said, he
did marvel much at the use of sir John. Sir
John answers here at the bar, and saith, that
if any thing were determined against him, 'he
did humbly submit himself thereto : by which
term so determining, he meant, I think, as if
we did give our censures against him by con-
spiracy. For my own part, 1 talked with none
other, nor I think did any of us one speak with
other before we came together here. 'Perad-
venture he thinks, as some have thought, that
all the carriage of this business is but a con-
spiracy against the earl of Somerset. He saith,
he hath been since the prince's death but as a
fish out of the water. I know not what he means
by a fish out of the water : I have heard that
' Clericus io oppido, tanquam piscis in arido,'
a clerk in the town is like a fish out of the
water : he is a justice of peace, a commissioner
of Oyer and terminer ; a man of fair lands,
1500/. per annum at the least; this money is
enough to be a privy-counsellor : and yet sir
John Hollis is like a fish out of the water. I
know he hath travelled many countries, speaks
many languages, hath seen many manners and
customs, and knows much of foreign nations ;

yet a little knowledge of the common-law of
this land would have been better for him than
all these; it would have kept him from asking
questions, and counselling in scandal of reli-
gion and justice ; two of the main pillars of
the kingdom, and that in cold blood. Evi-
dence is above eloquence ; the party himself
acknowledged that he died justly; and ihoi-e
that saw him said he died penitently: h> to
conclude, as it was sometime said of Home,
' Et qua; tanta fuit Romam tibi causa videndi,'
he might very well now say of sir John Hollis
his going to Tyburn, with a little alteration of
the words, * Et quae tanta fuit Tyburn tibi cau-
' sa videndi. For the censure, he agreed with
that which had been set ; and the acknowledg-
ment of Mr. Lumsdcn should he also in the
court of Common-Pleas and the Exchequer,
because the justice of all courts maybe wrong-
ed with slanderous petitions. He moved that
information might be made against the other
gentlemen that were asking such questions as
these were ; and that they might receive their
due punishment : lie meant, he said, Mr. Sack-
vil, sir Thomas Vavasor, and sir Henry Vane,
who would be a baron if attainders did not lie
in the way : If these be not punished, these
gentlemen will think that they have wrong;
for ' qua* mala cum multis patimur leviora vi-
' dentur/ He said he would wish gentlemen
to take heed how they fell into discourses of
these businesses, when they be at their cham-
bers ; for in the proceeding of these great bu-
sinesses and affairs, if a man sneak irreverently
of the justice thereof, the bird that hath wings
will reveal it. *"

The Sentence was fine, imprisonment, and
submission, as followeth :

Lumsden fined 2,000 marks, imprisoned in
the Tower for a whole year, and after until he
shall, at the King*s-b4hch bar, submit himself
and confess his fault, and also produce his au-
thors.

Sir John Hollis was fined 1,000/. imprisoned
in the Tower for the space of a year.

Sir John Wentworth fined 1 ,000 marks, im-
prisoned in the Tower for a year ; and both to
make submission at the King's-bench bar.

111. The Case of Duels; or Proceedings in the Star-Cham ber,
against Mr. William Priest for writing and sending a Chal-
lenge, and Mr. Richard Wright for carrying it: 26th Jan.
13 James I. a.d. 1615. [2 Bacons Works, 563.]

Charge of sir Francis Bacon, the King's
Attorney-general.

lVlY lords; I thought it fit for my place, and
for these times, to bring to hearing before your
lordships some cause touching private Duels,
to see if this court can do any good to tame
and reclaim that evil, which seems unbridled.
And I could have wished that I had met with
tome greater persons, as a subject for your

censure; both because it bad been more worthy
of this presence, and also the better to have
sliewed the resolution myself hath to proceed
without respect of persons in this business.
But finding this cause on foot iu my prede-
cessor's time, and published and ready for hear-
ing, I thought to lote"no time in a mischief that
groweth every day : and besides, it passes rtot
amiss sometimes in government, that the greater
sort be admonished by an example made in the

1035}

STATE TRIALS, 1 3 Jambs I. 1615.— Tie Caie tf Dmb.

[10W

meaner, and the dog to be beaten before the
lion. Nay, I should think, my lords, that men
of birth and quality will leave the practice,
when it l»egins to be vilified, and come so low
as to barber-surgeous and butchers, and such
bat* mechanical persons. And for the great-
ness of this presence, in which I take much
comfort, both as I consider it in itself, ' and
much more in respect it is by his majesty's
direction, I will supply the meanness of the
particular cause, by handling of the general
point : to the end, that by the occasion of this
present cause, both my purpose of prosecution
against Duels, and the opinion of the court,
without which I am nothing, for the censure
of them, may appear, and thereby offenders in
that kind may read their own case, and know
what they are to expect ; which may serve for a
warning until example may be made in some
greater person : which I doubt the times will
but too soon afford.

Therefore before I come to the particular,
whereof your lordships are now to judge, I
think it time best spent to speak somewhat

1. Of the nature and greatness of this mischief.

2. Of the Causes and Remedies. 3. Of the
justice of the law of England, which some stick
not to think defective in this matter. 4. Of
the capacity of this court, where certainly the
Remedy of this Mischief is best to be found.
5. Touching mine own purpose and resolution,
wherein I shall humbly crave your lordships
aid and assistance.

For the Mischief itself, it may. please your
lordships to take into your consideration, that
when revenge is once extorted out of the magis-
trate's hands, contrary to God's ordinance,
* mihi vindicta, ego retribuam,' and every man
shall bear the sword, not to defend, but to
assail ; and private men begin once to presume
to give law to themselves, and to right their
own wrongs ; no man can foresee the danger
and incon leniencies that may arise and multiply
thereupon. It may cause sudden storms in
court, to the disturbance of his majesty, and
unsafely of his person. It may grow from
quarrels to bandying, and from bandying to
trooping, and so to tumult and commotion ;
from particular persona to dissension of fami-
lies and alliances ; yea to national quarrels,
according to the infinite variety of accidents,
which faU not under foresight. So that the
state by this means shall he lite to a distemper-
ed and imperfect body, continually subject to
inflammations and convulsions. Besides, cer-
tainly, both in divinity and in policy, offences
of presumption are the greatest. Other ofFeuces
yield and consent to the law that it is good,
not daring to make defence, or to justify them-
selves; but thi» offence expressly gives the law
an affront, as if there were two laws, one a
kind of gown-law, and the other a law of re-
putation, as they term it. So that Paul's and
Westminster, the pulpit and the courts of jus-
tice, must give place to the law, us the king
speaketh in his proclamation, of ordinary tablet,
and such reverend assemblies : the Year-Books

and statute-books must give place to some
French and Italian pamphlets, wbicb handle
the doctrine of Duels, which if they be in the
right, transeamus ad Ma, let us receive them,
and not keep the people in conflict and distrac-
tion betweeu two laws. Again, my lords, it is
a miserable effect, when young men full of
toward ness and hope, such as the poets call
Aurora filiiy sons of the morning, in whom the
expectation and comfort of their friends coo-
sibteth, shall be cast away and destroyed in
such a vain manner. But much more it is to
be deplored when so much noble and genteel
blood should be spilt upon such follies, as if it
were adventured in the field in service of the
king and realm, were able to make the fortune
of a day, and to change the fortune of a king-
dom. So as your lordships see what a des-
perate evil this is; it troubleth peace; it dis-
furnisheth war; it bringeth calamity upon pri-
vate men, peril upon the state and contempt
upon the law.

Touching the Causes of it : the first motive,
no doubt, is a false and erroneous imagination
of honour and credit; and therefore the king,
in his last Proclamation, doth most aptly and
excellently call them bewitching Duels. For,
if one judge of it truly, it is no better than a
sorcery that enchantetb the spirits of young
men, that bear great minds with a false shew,
species falsa; and a kind of Satanical illusion
and apparition of honour against religion,
against law, against moral virtue, and against
the precedents and examples of the best times
and valiantest nations ; as I shall tell yon by
and by, when I shall shew you that the law of
England is not alone in this point. But then
the seed of this mischief being such, it is nou-
rished by vain discourses, and green and unripe
conceits, which nevertheless have so prevailed,
as though a man were staid and sober-minded,
and a right believer touching the vanity and
unlawfulness of these duels; yet the stream of
vulgar opinion is such, as it imposeth a neces-
sity upon men of value to conform themselves;
or else there is no living or looking upon mens
faces: so tint we have not to do, in this case,
so much with particular persons, as with as-
sound und depraved opinions, like the domina-
tions nod spirits of the air which the scripture
speaketh of. Hereunto may be added, that
men have almost lost the true notion and
understanding of fortitude and valour. For
fortitude distinguished! of the grounds of quar-
rels whether they be just ; and not only so, bat
whether they be worthy ; and setteth a better
price upon mens lives, than to bestow then
idly. Nay, it is weakness and d is -esteem of a
man's self, to put a man's lite upon such liedier
performances. A man's life is not to be trifled
away : it is to be offered up and sacrificed to
honourable services, public merits, good causes,
and noble adventures. It is in expence of
blood as it is in expence of money. It a do
liberality to make a profusion of money upon
\ every vain occasion ; nor no more it is fortitude
j to make effusion of blood, except the cause kt

1087]

STATE TRIALS, 13 James I. 1615.— Tie C*x qf DtxU.

[lost

of worth. And thus much for the causes of
this evil.

For the Remedies, i hope some great and
noble person will put his hand to this plough,
and I wish that my labours of this day may be
but forerunners to the work of a higher and bet-
ter hand. But yet to deliver my opinion as may
be proper for this time and place, there be four
things that I have thought on, as the most ef-
fectual for the repressing of this depraved custom
of particular combats.

The first is, that there do appear and be de-
clared a constant and settled resolution in the
state to abolish is. For this is a thins, my
lords, must go down at once, or not at all; for
then every particular man will think himself ac-
quitted in his reputation, when he sees that the
state takes it to heart, as an insult against the
king's power and authority, and thereupon hath
absolutely resolved to master it ; like unto that
which was set down in express words in the
edict of Charles 9, of France touching duels,
that the king himself took upon him the honour
of all that took themselves grieved or interested
for not having performed the combat. So must
the state do in this business ; and in my con-
science there is none that is but of a reasonable
sober disposition, be he never so valiant, except
it be some furious person that is like a firework,
bat will be glad of it, when he shall see the law
and rule of state disinterest him of a vain and
unnecessary hazard.

Secondly, care must be taken that this evil be
no more cockered, nor the humour of it fed ;
wherein I humbly pray your lordships, that I
may speak my mind freely, and yet be under-
stood aright. The proceedings of the great and
noble commissioner* martial I honour and re-
verence much, and of them I speak not in any
sort. But I say the compounding of quarrels,
which is otherwise in use by private noblemen
and gentlemen, it is so punctual, and hath such
reference and respect unto the received con-
ceits, what is before-hand, and what is behind-
hand, and I cannot tell what, as without all
question it doth, in a fashion, countenance and
authorize this practice of duels, as if it had in it
somewhat of right.

Thirdly, I must acknowledge, that I learned
out of the king's Inst proclamation, the most
prudent and best apphed remedy for this of-
fence, if it shall please his majesty te use it, that
the wit of man can devise. This offence,
my lords, is grounded upon a false conceit of
honour ; and therefore it would be punished in
the same kind, ' in eo quis rectissime plectitur,
' in quo peccat.' The fountain of honour is
the king, and his aspect, and the access to bis
person continueth honour in life, and to be
banished from bis presence is one of the greatest
eclipses of honour that can be. If his majesty
shall be pleased that when this court shall cen-
sure any of these offences in persons of eminent
Suality, to add this out of his own power and
iscipline, that these persons shall be banished
and excluded from his court for certain years,
and the courts of his queen and prince, I think

there is no man, that hath any good blood in
him, will commit an act that shall cast him into
that darkness, that he may not behold bis sove-
reign's face.

Lastly, and that which more properly con-
cerned this court : we see, my lords, the root
of this offence is stubborn ; for it despiseth
desth, which is the utmost of punishments ; and
it were a just but a miserable severity, to exe-
cute the law without all remission or mercy,
where the case proveth capital. And yet the
late severity in France was more, where, by a
kind of martial law, established by ordinance of
the king and parliament, the party that had
slain another was presently had to the gibbet,
insomuch as gentlemen of great quality were
hanged, their wounds bleeding, lest a natural
death should prevent the example of justice.
But, my lords, the course which we shall take
is of far greater lenity, and yet of no less effi-
cacy ; which is to punish, in this court, all the
middle acts and proceedings which tend to the
duel, which I will enumerate to you anon, and
so to hew and vex the root in the branches,
which, no doubt, in the end will kill the root9
and yet prevent the extremity of law.

Now for the Law of England, 1 see it except-
ed to, though jgnorantly, in two points. The
one, tlwt it should make no difference between
an insidious and foul murder, and the killing of
a man upon fair terms, as they now calf it.
The other, that the law hath not provided suf-
ficient punishment, and reparations, for con-
tumely of words, as the lye, and the like. But
these are no better than childish novelties
against the divine law, and against all laws in
effect, and against the examples of all the
bravest and most virtuous nations of the world.

For first, for the Law of God, there is never
to be found any difference made in homicide,
but between homicide voluntary, and involun-
tary, which we term misadventure. And for
the case of misadventure itself, there were cities
of refuge ; so that the offender wa* put to his
flight, and that flight was subject to accident,
whether the revenger of blood should overtake
him before he had gotten sanctuary or no. It
is true that our law hath mode a more subtle
distinction between the will inflamed and the
will advised, between manslaughter in heat and
murder upon prepensed malice or cold blood, as
the soldiers call it ; on indulgence not unfit for
a choleric and warlike nation ; for it is true,
* ira furor brevis/ a man in fury is not himself.
This privilege of passion the ancient Roman law
restrained, but to a case : that was, if the hufe
band took the adulterer in the manner. To
that rage and provocation only it save way, that
an 'homicide was justifiable. But for a diffe-
rence to be made in case of killing and destroy-
ing man, upon a fore-thought purpose, between
foul and fair, and as it were between single'
murde* and vied murder, it is but a monstrous
child of this latter age, and there is no shadow
of it in any law divine or human. Only it is
true, I linn in the scripture that Cain inticed
his brother into the field and slew him treacher-

1039]

STATE TRIALS, 13 James I. Kilo.— The Case qf Duels.

[1040

oualy ; hut Lamech vaunted of his manhood,
that he would kill u young man, and if it were
to his hurt ; so as I see no difference between
an insidious murder and a braving or presump-
tuous murder, but the difference between Cain
and Lantech.

As for examples in civil state*, all memory
doth consent, that Grwcia and Home were the
most valiant and generous nations of the world;
and, that which is more to be noted, they were
ii ee estates, and not under a monarchy ; where-
by a man would think it a great deal the more
reason that particular persons should have
righted themselves. And yet they had not this
practice of duels, nor any thing that bare shew
thereof : and sure they would have had it, if
there had been any virtue in it. Nay, as he
saith, ' fat est et ab hoste doceri/ It is memo-
rable, that is reported by a counsellor ambassa-
dor of the emperor's, touching the censure of
die Turks of these duels. There was a combat
of this, kind performed by two persons of qua-
lity of the Turks, wherein one of them was
slain, the other party was con vented before the
council of bashaws. The manner of the repre-
hension was in these words: * How durst you

* undertake to fight one with the other ? Are
' there not Christiaus enough to kill ? Did you

* not know that whether of you shall be slain,
' the loss would he the great seizor's ?' So as
we may see rhat the most warlike nations, whe-
ther generous or barbarous, have ever despised
this wherein now men glory.

It is true, my lords, that I find Combats of
two natures authorized, how justly I will not
dispute as to the latter of them. The one,
when upon the approaches of armies in the face
one df the other, particular persons have made
challenges for trial of valours in the field upon
the public quarrel. This the Romans called
' pugna per provocationem.' And this was '
never, but either between the generals ttrem- '
selves, who were absolute, or between particu- '
lars by licence of the generals; never upou pri-
vate authority. So vou see David asked leave
when he fought wirh Goliah ; and Joab, when
the armies were met, gave leave, and said, * let

* the young men* play before us.' And of this
kind was that famous example in the wars of
Naples, between twelve Spaniards and twelve
Italians, where the Italians bare uway the vic-
tory ; besides other infinite like examples wor-
thy and laudable, sometimes by tingle-*, some-
times by numbers.

The second Combat is a judicial trial of
right, where the right is obscure, introduced by
the Goths and the northern nation?, but more
anciently entertained in Spain. And this yet
remains in some cases as a divine lot of battle,
though controverted by dhines, touching the
lawfulness of it: so that a wise writer saith,
' taliter pugn antes videntur tentarc Deuin, quia
' hoc volunt ut Deus ostendat et faciatmiracu-

* lum, ut justam cansain habens victor efiiciatur,
' quod sspe contra acridit.' But howsctever it
be, this kind of fiuht taketh its warrant from
law. Nay, the French themselves, whence j

this folly secmeth chiefly to have flown, never
had it but only in practice and toleration, and
never as authorised by law ; and yet now of
late they have been fain to purge their folly
with extreme rigour, in so much as' many gen-
tlemen left between death' and life in the duels,
as I spake before, were hastened to hanging
with their wounds bleeding. For the state
found it had been neglected so long, as nothing
could be thought cruelty, which tended to the
putting of it dow n. As for the second defect
pretended in our law, that it hath provided no
remedy for lies and fillips, it may receive like
answer. It would have been thought a mad-
ness amongst the ancient lawgivers, to have set
a punishment upon the lye given, which in effect
is but a word of denial, a negative of another's
saying. Any lawgiver, if he had been asked
the question, would have made Solon's answer:
That he had not ordained any punishment for
it, because he never imagined the world would
have been so fantastical as to take it so highly.
The civilians, they dispute whether an action of
injury lie for it, and rather resolve the contrary.
And Francis the first of France, who first set
on and stamped this disgrace so deep, is taxed
by the judgment of all wise writers for begin-
ning the vanity of it ; for it was he, that when
he had himself given the lye and defy to tat
emperor, to make it current in the world, said
in a solemn assembly, * that he was no honest
• man that would boar the lye :' which was tbt
fountain of this new learning.

As fur words of reproach aud centumely,
whereof the lye was esteemed none, it is not
credible, but that the orations themselves art
extant, what extreme and exquisite reproaches
were tossed up and down in the senate of Rome
and the places of assembly, and tlie like in
Gnecia, and yet no man took himself fouled by
them, but took them but fur breath, and the
stile of an enemy, and either despised them
or returned them, but no blood spilt about
them.

So of every touch or light blow of the person,
they arc not in themselves cnnsiderable,save that
they have got them upon the stamp of a disgrace,
which maketh these light things pass for great
matter. The law of England, and all laws,
hold these degrees of injury to the person, slan-
der, battery, maim, and death ; and if there
be extraordinary circumstances of despite and
contumely, as in case of libels, and bastinadoes,
and the like, this court taketh them in hand
and ptmisheih I hem cxemplarily. Hut for this
apprehension of a disgrace, that a fillip to thf
person should he a mortal wound to the repu-
tation, it were good that men did hearken unto
the saying of (jonwilvo, the great aud famous
commander, that was wont to sny, a gentle-
man's honour should be do. tela craisiorct'of a
pood strong warp or web, that every little thing
bliouid not catch in it ; when as now it seoui»
they are but of cobweb-lawn or such light stuff*
which certainly is weakness, and not true great-
ness of mind, but like a sick man's body, that
is. so tender that it feels every tiling. Audsu

i

1041]

STATE TRIALS, 13 James I. 1615.— fie Cote qf Duels.

[1042

nuch in maintenance and demonstration of the
risdom and justice of the law of the land.

For the Capacity of this Court, 1 take this
a be a ground infallible : that wheresoever au
ffence is capital, or matter of felony, though
I be not acted, there the combination or prac-
ice tending to that offence is punishable in this
oart as a high misdemeanor. So practice to
npoison, though it took no effect ; waylaying
9 murder, though it took no effect ; and the
ike; have been adjudged heinous niisdemean-
rs punishable in this court. Nay, inceptions
ud preparations in inferior crimes, that are not
apital, as suborning and preparing of witnesses
hat were never deposed, or, deposed nothing
laterial, have likewise been censured in this
oart, as appearetii by the decree in Garnou's
toe.

Why tlien, the major proposition being such,
ie minOr cannot be denied : for every an-
ointment of the field is but combination and
lotting of murder. Let them gild it how they
rt, they shall never have fairer terms of me in
lace of justice. Then the conclusion fol-
>wetb, that it is a case fit for the censure of
ie court. And of this there be precedents in
le very point of challenge. It was the case
f Wharton, plaintiff, against Ellckar and Ack-
im defendants, where Acklam, being a fol-
>wer of Ellekar's, was censured for carrying a
liallenge from Ellekar to Wharton, though
le challenge was not put in writing, but deli-
wed only by word of message; and there are
ords in the decree, that such challenges are

> die subversion of government. These things
re well known, and therefore I needed not so
neb to huve insisted upon tbeni, but that in
lit case I would be thought, not to innovate
ly thing of my own head, but to follow the
finer precedents of the court, though I mean

> do it more thoroughly, because the time re-
tires it more.

Therefore now to come to that which coo-
srreth my part ; I say, that by the favour of
te king and the court, I will prosecute in this
wirt in the cases following. If any man shall
>point the field, though the fight be not acted

* performed. If any man shall send anyQhal*
age in writing, or any message of challenge,
'any man carry or deliver any writing or mes-
ge of challenge. If any man shall accept or
turn a challenge. If any man shall accept

• be a second in a challenge of either side.
any man shall depart the realm, with inten-
mi and agreement to perform the fight be-
Mid the seas. If any man shall revive a quar-
1 by any scandalous bruits or writings, con-
ary to a former proclamation published by his
aiesty in that behalf.

Nay, I hear there be some counsel learned
f Duels, that tell young men when they are
eture-hand, and when they are otherwise, and
Hereby incense and incite them to the duel,
nd make an art of it. I hope I shall meet
»ith some of them too : and 1 am sure, my
wds, this course of preventing duels in nipping
hem in the Dud, is fuller of clemency ana pro-
TOU II.

vidence, than the suffering them to go on, and
hanging men with their wouuds bleeding, as
they did in France.

To conclude, I have some petitions to make
first to your lordship, my lord chancellor, that
in case I be adierti*ed of a purpose in any to
go beyond the sea to fight, I may have granted
his majesty's writ of we exeat regnum to stop
him, lor this giant bestrideth the sea, and I
would take and snare hiiu by the foot on* this
side; for the combination and plotting is on
this side, though it should be acted beyond sta.
And your lordship said notably the lust time I
made a motion in tins business, (hat a man
may be as weWj'ur d* te, as ft to de te, if he
steal out of the realm for a bad purpose. As
tor the satisfying of the words of the writ, no
man will doubt but be doth wachimiri contra
coronam, as the words of the writ be, that seek-
eth to murder a subject;' for that is ever
contra coronam et digmtattm. I have also a
suit to your lordships all in general, that for
justice sake, and for true honour's sake, honour
of religion, law, and the king our master,
against this fund and false disguise or puppetry
of honour, I may in my prosecution, which, it is
like enough, may sometimes stir coals, which
I esteem not for mv particular, but as it may
hinder the good service, I may, I say, be coun-
tenanced and assisted from your lordships.
Lastly, I have a petition to the nobles and gen-
tlemen of England, that they would learn to
esteem themselves at a just price. ' Non kos
1 qu&situin munus in usus/ their blood is not
to be spilt like water or a vile thing ; therefore
that they would rest persuaded there cannot
be a form of honour, except it be upon a wor-
thy matter. But for this, ipti viderunt, I am
resolved. And thus much for the general, now
to the present case.

Decree of the Star-Chamber against Dufls.

In Camera Steliata coram concilio ibidem, '26
Januarii, 13 Jac. regit.

Present, George lord archbishop of Can-
terbury, Thomas lord Ellesmere, lord chan-
cellor bf England, Henry earl of Northampton,
lord privy seal. Charles earl of Nottingham,
lord high admiral of England, Thomas earl of
Suffolk, lord chainberluin, John lord hi>h>p of
Ixmdon, Edward lord Zouch, William lord
Konlle*, treasurer of the houshold, Edwnrd
lord Wotton, comptroller, John lord Stauho{ e,
vice-chamberlain, sir Edward Coke, knight,
lord chief justice of England, sir Henry Hobai t,
knight, lord chief justice of the Common Pleas,
sir Julius Cffisar, knight, chancellor of the
Exchequer.

This day was heard and debated at large the
several matters of Inclination* here exhibited
by sir Francis Bacon, kt. hit majesty's Attomey-
G( nerul : the one against William Pr.est, gent,
for writing and sending a letter of Challenge,
together with a stick, which should be the
length of the weapon : and the other against
Richard Wright, esq. for carrying and delivering
the said letter aad stick uute the party chal-

1043]

STATE TRIALS, 13 James I. 1615.— 17* Case of Duels.

[1044

lenged, and for other contemptuous and inso-
lent behaviour used before the justices of the
pence in Surry at their sessions, before whom
he was convented. Upon the opening of which
cause, his highness's said Attorney-General
did first give his reason to the court, why, in a
case which he intended should be a leading
case for the repressing of so great a mischief in
the common-wealth, and concerning an offence
vi iiich reigneth chiefly amongst persons of ho-
nour and quality, he should begin with a cause
which had passed between so mean persons as
die defendants seemed to be ; which he said
was done, because he found this cause ready
published, and in so growing an evil, he thought
good to lose no time ; whereuuto he added,
that it was not amiss sometimes to beat the
dog before the lion; saying farther, that he
thought it would be some motive for persons of
high birth and countenance to leave it, when
they saw it was taken up by base and mecha-
nical fellows ; but concluded, that he resolved
to proceed without respect of persons for the
time to come, and for the present to supply the
meanness of this particular case ' by insisting
the longer upon the general point.
^ Wherein he did first express unto the court
at large the greatness and dangerous conse-
quence of this presumptuous offence, which
extorted revenge out of the magistrate's hands,
and gave boldness to private men to be law-
givers to themselves ; the rather, because it is
an offence that doth justify itself against the
law, and plainly gives the law an affront ; de-
scribing also the miserable effect which it
diaweth upon private families, by cutting off
young men, otherwise of good hope; and
chiefly the loss of the king and the common-
wealth, by the casting away of much good
blood, which, being spent in the field upon oc-
casion of service, were able to continue the
renown which this kingdom hath obtained in
■ all ages, of being esteemed victorious.

Secondly, his majesty's said Attorney-Ge-
neral did discourse touching the Causes and
Remedies of this mischief that prevailed so in
these times ; shewing the ground thereof to be
a false and erroneous imagination of honour
and credit, according to the term which was
given to those Duels by a former Proclama-
tion of his majesty's, which called them be-
' witching duels, for that it was no better than a
kind of sorcery, which enchunteth the spirits
. of young men, which bear great minds, with
a shew of honour in that which is no honour
indeed ; being against religion, law, moral
virtue, and against the precedents and exam-
ples of the best times, and vuliantcst nations of
the world ; which though they excelled for
prowess and military virtue in a public quarrel,
yet know not what these private duels meant ;
saying farther, that there was too much way
and countenance given unto these duels, by
the course that is held by noblemen and gen-
tlemen in compounding of quarrels, who use to
stand too punctually upon conceits of satisfac-
tions and distinctions, whit is before-hand, and

what behind-hand, which do but feed the
humour: adding likewise, that it was no forti-
tude to shew valour in a quarrel, except there
were a just and worthy ground of the quarrel;
but that it was weakness to set a man's life at
so mean a rale as to bestow it upon trifling
occasions which ought to be rather offered up
and sacrificed to honourable services, public
merits, good causes, and noble adventures.
And as concerning the Remedies, he con-
cluded, that the only way was, that the state
would declare a constant and settled reso-
lution to master and put down this presump-
tion in private men, of whatsoever degree, of
righting their own wrongs, and this to do at
once; for that then every particular man
would think himself acquitted in his reputation,
when that he shall see that the state takes
his honour into their own hands, and standeth
between him and any interest or prejudice,
which he might receive in his reputation for
obeying. Whereunto he added likewise, that
the wisest and mildest way to suppress these
Duels, was rather to punish in this court all
the acts of preparation, which did in any wise
tend to the duels, as this of Challenges and
the like, and so to prevent the capital punish-
ment, and to vex the root in the branches,
than to suffer them to run on to the execution,
and then to punish them capitally .after the
manner of France ; where of late times £en-
tlemen of great quality that bad killed other*
in duel, were carried to the gibbet with their
wounds bleeding, lest a natural death should
keep them from the example of justice.

Thirdly, his majesty's said Attorney-General
did, by many reasons which he brought and
alledged, free the Law of England from certain
vain and childish exceptions, which are taken
by these duellists. The one, because the lair
makes no difference in punishment between an
insidious and foul murder, and the killing a man '
upon challenge and fair term?, as they call it.
The other, for that the law hath not provided
sufficient punishment and reparation for con-
tumely of words, as the lye, and the like.
Wherein his majesty's said Attorney-General
did shew, by many weighty arguments aud ex-
amples, that the law of England did consent
with the law of God and the law of nations in
both those points, and that this distinction in
murder between foul and fair, and this ground-
ing of mortal quarrels upon uncivil and re-
proachful words, or the like disgraces, was
never authorised by any law or ancieut exam-
ples ; but it is a late vanity crept in from the
practice of the French, who themselves since
nave been so weary of it, as they have been
forced to put it down with all seventy.

Fourthly, his majesty's said Attorney- General
did prove unto the court by rules of law and
precedents, that this court hath capacity to
punish sending and accepting of Challenges}
though they were never acted nor executed ;
taking for a ground infallible, that wheresoever .
on offence is capital or matter of felony, if it
be acted and performed, there the conspiracy,

1045]

STATE TRIALS, 13 James I. 16 1 5— 17ie Case qf Duels.

[1046

combination, or practice tending to the same
offence, is punishable as a high misdemeanor,
although they never were performed. And
therefore, that practice to impoison, thongh it
took no effect, and the like, have been pu-
nished in this court ; and cited the precedent
in G anion's Case, wherein a crime of a much
inferior nature, the suborning and preparing of
witnesses, though they never were deposed, or
deposed nothing material, was censured in this
court. Whereupon he concluded, that for as
much as every appointment of the field is in
law but a combination of plotting of a murder,
howsoever men might gild it ; that therefore it
was a case tit for the censure of this court :
and therein he vouched a precedent in the very
point, that in a case between Wharton plain-
tiff, and Ellekar and Acklam defendants. Ack-
lam being a follower of Ellekar, had carried
a challenge unto Wharton ; and although it
were by word of mouth, and not by writing,
yet it was severely censured by the court; the
decree having words, that such challenges do
tend to the subversion of government. And
therefore his majesty's attorney willed the
standcrs-by to take notice that it was no inno-
vation that he brought in, but a proceeding ac-
cording to former precedents of the court,
although he purposed to follow it more tho-
roughly than had been done ever heretofore,
because the times did more and more require
it. Lastly, his majesty's said attorney-general
did declare and publish to the court in several
articles, his purpose and resolution in what
cases he did intend to prosecute offences of
that nature in this court; that is to say, that if
any man shall appoint the field, although the
fight be not acted or performed ; if any man
shall send any challenge in writing or message
of challenge; if any m:sn shall carry or deliver
any writing or message of challenge ; if any
man shall accept or return a challenge ; if any
man shall accept to be a second in a challenge
of either part ; if any man shall depart the
realm with intention and agreement to perform
the fight beyond the seas ; if any man, shall
revive a quarrel by any scandalous bruits or
writings contrary to a former proclamation,
published by his majesty in that behalf; that
in all these cases his majesty's attorney-gene-
ral, in discharge of his duty, by the favour and
assistance of his majesty mid die court, would
bring the offenders, of what state or degree
soever, to the justice of this court, leaving the
lords commissioners martial to the more exact
Remedies: adding farther, that he heard there
were certain counsel learned of duels, that tell
young men when they are before-hand, and
when they are otherwise, and did incense and
incite them to the duel, and made an art of it;
who likewise should not he forgotten. And so
concluded with two petitions, the one in parti-
cular to the lord chancellor, that in case adver-
tisement were given of a purpose in any to go
beyond the seas to fight, there might be granted
his majesty's writ of ne exeat rcgnum against
kim ; and the other to the lords in general,

that he might be assisted and countenanced in
this service.

After which opening and declaration of the
general caus.e, his majesty's said Attorney did
proceed to set forth the Proofs of this particu-
lar challenge and offence now in hand, and
brought to the judgment and censure of this
honourable court ; whereupon it appeared to
this honourable court by the Confession of the
said defendant Priest himself, that he, having
received some wrong and disgrace at the hands
of one llutchcst, didf thereupon, in revenge
thereof, write a letter to the said Hutchtst,
containing a challenge to fight with him at sin-
gle rapier ; which letter the said Pritst did de-
liver to the said defendant Wright, together
with a stick containing the length of the rapier,
wherewith the said Priest meant to perform the
fight. Whereupon the said Wright did deliver
the said letter to the said Hutchest, and did
read the same unto him ; and after the reading
thereof, did also deliver to the said Hutchest
the said stick, saying, that the same was the
length of the weapon mentioned in the said let-
ter. But the said Hutchest, dutifully respect-
ing the preservation of his majesty's peace, did
refuse the said challenge, whereby no farther
mischief did ensue thereupon.

This honourable court, and all the honoura-
ble presence this day sitting, upon grave and
mature deliberation, pondering the quality of
these offences, they generally approved the
Speech and Observations of his majesty's said
Attorney- Geueral, and highly commended his
great care and good service in bringing a cause
of this nature to public punishment and exam-
ple, and in professing a constant purpose to go
on in the like course wiih others: letting him
know, that he might expect from the court all
concurrence and assistance in so good a work.
And thereupon the court did by their several
Opinions and Sentences declare, how much it
imported the peace and prosperous estate of
his majesty and his kingdom to nip this prac-
tice and offence of Duels in the head, which
now did pverspread and grow universal, even
among mean persons, and was not only enter-
tained in practice and custom, but was framed
into a kind of art and precepts : so that, ac-
cording to the saving of the scripture, ' mis- ( v/
' chief is imagined like a law.' And the court
with one consent did declare their opinions :
That by the ancient law of the land, all incep-
tions, preparations, and combinations to exe-
cute unlawful acts, though they never be per-
formed, as they be not to be punished capital-
ly, except it be in case of treason, and some
other particular cases of statute law, so yet
they are punishable as misdemeanors and con-
tempts : and that this court was proper for of-
fences of such nature ; especially in this case,
where the bravery and insolency of the times
are such as the ordinary magistrates and jus<-
tices, that are trusted with the preservation of
the peace, are not able to master and repress
those offences, which were by the court at
large set forth, to be not only against the law

i

1047]

STATE TRIALS, 13 Jambs I. 1«!5.— Tht Coat qfDuth.

[1049

,• i

of God, to whom, and his substitutes, all .re-
venge belongeth, as part of his prerogative, but
also against the oath and duty of every subject
unto his majesty, for that the subject doth
swear unto him by tlie ancient law allegiance
of life and member ; whereby it is plainly in-
ferred, that the subject hath no disposing
power over himself of lite and member to be
spent or ventured according to his own passions
and fancies, insomuch as the very practice of
chivalry in justs and to u mays, which are but
images of martial actions, appear by ancient

J precedents not to be lawful without the king's
icence obtained. The court also noted, that
these private duels or combats were of another
nature from the combats which have been al-
lowed by the law, as well of this land as of
other nations, for the trial of rights or appeals.
For that those combats receive direction and
authority from the law : whereas these contra-
riwise spring only from the unbridled humours
of private men. And as for the pretence of
honour, the court much misliking the confusion
of degrees which is grown of late, every man
assuming unto himself the term and attribute
of honour, did utterly reject and condemn the
opinion, that the private duel, in any person
whatsoever, had any grounds of honour ; as
well because nothing can be honourable that
is uot lawful, and that it is no magnanimity or
greatness of mind, but a swelling and tumour
of the mind, where there faileth a right and
sound judgment ; ns also for that it was rather
justly to be esrecnied a weakness, and a con-
science of small value in a man's self to be de-
jected so with a word or trifling disgrace, as to
think there is no re-cure of it, but by the
hazard of life ; whereas true honour in persons
that know their own worth is not of any such
brittle substance, but of a more strong compo
sition. And finally, the court, shewing a firm
and settled resolution to proceed with all seve-
rity against these duels, gave warning to all
young noblemen and gentlemen, that they
should not expect the like connivance or tole-
ration as fonnerly have been, but that justice
should have a full passage without protection
or interruption. Adding, that after a strait
inhibition, whosoever should attempt a chal-
lenge or combat, in case where the other
party was restrained to answer him, as now
all good subjects are, did by their own prin-
ciples receive the dishonour and disgrace upon
himself.

And tor the present Cause, the court hath
ordered, adjudged, and decreed, that the said
William Priest and Richard Wright be com-
mitted to the pri>ju of the Fleet, and the said

Priest to pay 500/., and the said Wright 500
marks, for their several fines to his majesty's
use. And to the end, that some more public
example may be made hereof amongst his ma-
jesty's people, the Court hath further ordered
and decreed, that the said Priest and Wright
shall at the next assizes, to be holdeii in the
county of Surry, publicly in face of the court,
the Judges sitting, acknowledge their high con*
tempt and offence against God, his majesty,
and his laws, and shew themseh es penitent for
the same.

Moreover, the wisdom of this high and ho-
nourable Court thought it meet and necessary,
that all sorts of' his majesty's subjects should
understand and take notice of that which hath
been said and handled this day touching this
matter, as well by his highness's attorney- gene-
ral, as by the lords judges, touching the" law io
such cases. , And therefore the Court hath en-
joined Mr. Attorney to have special care to the
penning of this Decree, for the setting forth in
the same summarily the matters and reasons,
which have been opened and delivered by the
Court touching the same ; and nevertheless
also at some time convenient to publish the
particulars of his Speech and Declaration, at
very meet and worthy to be remembered and
made known unto the world, as these times are.
And this Decree, being in such sort carefully
drawn and penned, the whole court thought it
meet,, and so have ordered and decreed, that
the same be not only read and published at the
next assizes for Surry, at such time as the said
Priest and Wright are to acknowledge their of-
fences as aforesaid ; but that the same be like-
wise published and made known in all shires of
this kingdom. And to that end the J u* tiers
of Assize are required by this honourable court
to cause this Decree to be solemnly read and
published in all the places and sittings of their
several circuits, and in the greatest assembly;
to the end, that all his majesty's subjects may
take knowledge and understand the opinion of
this honourable court in this case, and in what
measure his majesty and this honourable court

f>urposeth to punish such as shall fall into the
ike contempt and offences hereafter. Lastly,
this honourable court much approving that,
which the right honourable sir Edward Coke,
knight, Lord Chief Justice of England, did
now deliver touching the law in this Case of
Duels, hath enjoined Iris lordship to report the
same in print, as lie hath formerly done divers

I other cases, that such as understand not tie
law in that behalf, and ail others, may better
direct themselves, and prevent tlie danger
thereof hereafter.

\

1049] STATE TRIALS, IS James I 1610.— Tfe Case qf Wary Smith. [1050

112. The Case of Mary Smith,* for Witchcraft :| 13 James I.

a. d. 1616.

MARIE wife of Ilenrie Smith, glover, pos-
sessed with a wrathfull indignation against
some of her neighbours, in regard that they
made gaine of their buying and selling cheese,
which aliee (using the same trade) could not
doe, or they better (at the least in her opiuion)

* From a curious Tract printed in 1616,
with the following Title, ' A Treatise of Witch-
' craft : wherein sundry Propositions are laid
' d mne, plainely discovering the wickedness of
' that damnable art, with diverse other special!
' points annexed, not impertinent to the same,
' such as ou^ht diligently of every Christian to
' he considered. — With a true Narration of the

* Witchcrafts which Mary Smith, wife of Henry
' Smith, Glover, did practise : of her contract
4 vocally made between the Devill and her, in
' solemne termes, by whose meanes she hurt

* sundry persons whom she envied ': which is
4 confirmed bv her owne confession, and also
c from the puDlique Records of the Examination

* of diverse upon their oat hes: and lastly, of her
' death and execution, for the same ; which was
' on the twelfth day of Januarie last past. — By
< Alexander Roberts, B. D. and Preacher of
« Gods Word at Kings-Linne in Norfolke.
$ Exod.22, 18. " Thou shalt not suffer a Witch
t to live/'

' Impium est nns illis esse Remissos, quos

' coelestis Pietas,
' Non Patitur impunitos: Alarus Rex apud

' Cassiodorum.

' London, Printed by N. O. for Samuel Man,
' and are to be sold at his Shop in Pads
€ Church-yard at the signe of the Ball, 1616/

f " A sixth species of offences against God
and religion, of which our ancient books are
full, is a crime of which one knows .not well
what account to give. I mean the offence of
witchcraft, conjuration, inchantment, or sor-
cery. To deny the possibility, nay, actual
existence of witchcraft and sorcery, it at once
flatly to contradict the revealed word of God,
in various passages both of the old and new
testament : and the thing itself is a truth to
which evefy nation in the world hath in its
turn born testimony, either by examples seem-
ingly well attested, or by prohibitory laws,
which at least suppose tb*. possibility of a com-
merce with evil spirits. The civil law punishes
with death not only the sorcerers themselves,
but also those who consult them; (Cod.' 1. 9.
1. 18.) imitating in the former the express law
of God, (Exod. xxii. 18.) * thou shalt not suffer
a witch to live/ And our own laws, both be-
fore and since the conquest, have been equally
penal ; ranking this crime in the same class
with heresy, and condemning both to the flames
(3 Inst. 44.) The president Montesquieu (Sp.
L. b. 12, c. 5.) ranks them aUo both together,

then she did, oftentimes cursed them, and he-
came incensed with unruly passions, armed
with a setled resolution, to effect some mis-
chievous proiects and designes against them.
The Devell who is skilful I, and rejoyceth of sura
an occasion offered, and kno*eth how to stirre

but with a very different view : layiug it down
as an important maxim, that we ought to be
very circumspect in the prosecution- of magic
and heresy; because the most unexceptionable
conduct, the purest morals, and the constant
practice of every duty in life, are not a suffi-
cient security against the suspicion of crimes
like these. And indeed the ridiculous stories
that are generally told, and the many impos-
tures and delusions that have been discovered
in all ages, are enough to demolish all faith in
such a dubious crime, if the contrary evidence
were not also extremely strong. Wherefore it
seems to be the most eligible way to conclude,
with an ingenious writer of our own, (Mr. Ad-
dison, Spect. No. 117.) that in general there
has been such a thing as witchcraft ; though one
cannot give credit to any particular modern in-
stance of it. Our forefathers were stronger
believers, when they enacted by statute 33
Hen. 8. c. 8. all witchcraft and sorcery to be
felony without benefit of clergy ; and again by
statute 1 Jac. 1. c. 12, that all persons invoking
any evil spirit, or consulting, covenanting. with,
entertaining, employing, feeding, or rewarding
any evil spirit; or taking up dead bodies from
their graves to be used in any witchcraft, sor-
cery, charm, or inchantment; or killing or
otherwise hurting any person by such infernal
arts ; should be guilty of felony without benefit
of clergy, and suffer death. And, if any person
should attempt by sorcery to discover hidden
treasure, or to restore stolen goods, or to pro-
voke unlawful love, or to hurt any man or
beast, though the same were not effected, be
or she should suffer imprisonment and pillory
for the first offence, and death for the second.
These acts continued in force till lately, to the
terror, of all ancient females in the kingdom :
and many poor wretches were sacrificed there-
by to the prejudice of their neighbours, and
their own illusions ; not a fen having, by some
means or other, confessed the fact at the gal-
lows. But all executions for this dubious crime
are now at an end ; our legislature having at
length followed the wise example of Louis 14
in France, who thought proper by an edict te
restrain the tribunals of justice from receiving
informations of witchcraft.* And accordingly

* Voltaire Steel. Louis xiv. ch, 29. Mod. Un.
Hist. xxv. 215. Yet Vuughlans (de Droit Cit-
minel, 353. 459.) still reckons up sorcery and
witchcraft ainoag the crimes punishable iu
France.

1051] STATE TRIALS, 13 James!. 1610.— Tlie Case of Mary Smith, [10S3

up the evill affected humours of corrupt mindes
(she becoraming now a fie subiect, through this
her distemper, to worke upon, having the un-
derstanding darkened with a cloude of passion-
ate, and revenge full affections) appeared unto
her amiddes these discontentments, in the shape
ofahlacke man, and willed that she should
continue in her malice, envy, luitred, banning
and cursing ; and then he would be revenged
for her upon all those to whom she wished
evill: and this promise was uttered in a lowe
murmuring and hissing voyce : and at that
present tbey entered tearmes of a compact, he
requiring that she should forsake God, and de-
pend upon him : to which she condescended iu
ex pr esse tearmes, renouncing God, and betak-
ing herselte unto him. I am sparing by anie
amplification to enlarge this, but doe barely
ana nakedly rehearse the trueth, and number
of her owne words unto mee. After this hee
presented hiraselfe againe at sundry times, and

it is with us enacted by statute 9 Geo. 2. c. 5.
that no prosecution shall for the future be car-
ried on against any person for conjuration,
witchcraft, sorcery, or inchantment. But the
misdemeanor of persons pretending to use
witchcraft, tell fortunes, or discover stolen
goods, by skill in the occult sciences, is still
deservedly punished with a year's imprison-
ment, and standing four times in the pillory."
See 4 Bl. Comm. p. 60.

" The law against witches," says Selden,
(Table Talk) u doe* not prove there be any, but
it punishes the malice of those people that use
such means to tnke away men's lives If one
should profess that by turning his hnt thrice
and crying Buz, he could take away a man's
life (though in truth he could do no such thing)
yet this were a just law made by the state that
whosoever should turn his hat thrice and cry
fiuz with an intention to take away a man's
life, shall be put to death."

Some curious particulars of Ohc, or Obi,
the witchcraft of negroes in the West Indies,
are to be found in Edwards's Hist b. 4, c. 3.

Mr. Barrington, Obs. on st. 20 H. (>, thinks
" such a law as that suggested by Selden, may
be declared to be not only ridiculous and fu-
tile, but highly unjust." Among other matter
relating to witchcraft, he mentions, from Grey's
notes on Hudibra?, that Hopkins, the noted
witch-finder, hanged sixty suspected witches
in one year ; and that thirty thousand had been
burned within an hundred and fifty years. He
also mentions from Etnilc, thnr} in the year
1572, there were supposed to be in France
thirty thousand persons addicted to necro-
mancy. And he speaks of an able pamphlet,
written by sir Robert: Kilmer, entitled, u An
Advertisement to the Jurymen of England .
touching witches." King Jain« s in his Dai- !
monologia says, that he was u moved to write .
that work, by the fearful abounding, at this
time in this country, of those detest nolo slave* :
#f the devil, the witches or euehaunters." ,
Ifowell, in two letters, one dated l:cb. 3, 16lo\

that to this purpose (as may probably bee con-
icctured) to hold her still hi his possession, who
was not able, eyther to look further into these
subtil ties, then the superficial! barkc thereof,
or not discover the depth of his desiguements,
and in other formes, as of a mist, and of a
ball of fire, with some dispersed spangles of
blacke ; and at the last in prison (after the
doome of iudgement, and sentence of condem-
nation was passed against her) two severall
times, in that figure as at the first: only
at the last he seemed to have, a paire of horns
upon his head, as she came downe from
her chamber, being sent for to conferre with
some learned and reverend divines, by whose
prayers and instructions she might be brought
to the sight and confession of her grievous
offences, be regained and rescued out of his
hands, brought to repentance, and the favour
of God, assured hope of mercie, and cternull
life, and at these times he wished her to con-

the other Feb. 20, 1617, says, that in two years
there were indicted in Suffolk, and Essex, be-
tween 200 and 300 witches, of whom more
than half were executed." In 1659 wa$ pub-
lished, from an original MS. which had be-
longed to sir Robert Cotton, " A true relation
of Dr. Dee's actions with Spirits, &c." It is
stnffed with the strangest fancies, that a dis-
ordered imagination could conceive. His fa-
miliars not only predict matters, relative to
those about whom he consults them, but in-
struct him in their own natures and conduct
Thus we learn th:»t " Trithemius is wrong,
when he asserts, that no good angel would ever
appear forma muliehri." Of the morality and
piety of these spirits, the following specimen is
uttered in the name of the Deity : *' adulttri-
zans propter me in sempiternum heoedicetur, ct
premio afticietur coelesti." Yet to this boor
the learnrd Dr. Meric Casaubon, published a
copious preface, in which he affirms the truth
and sincerity of all the matters, related in it
to have happened, but asserts, that the author
mistook false lying spirits, for angels of ligkt.
Dr. Johnson's opinions concerning the agency
of spirits, and the arguments, which he era-

flojed in support of them, are recorded by
lawk ins and B>swcll. In addition to the very
frequent convictions for extorting money, under
pretence of telling fortunes, recovering lost or
stolen goods, &c. by skill in the occult sciences,
the case of Ilex v. Mary Bateman, York Spring
Assizes, 1809, has just now afforded a very re-
markable proof, that a disposition to give credit
to the power of witches is by no means extinct
in this country. Sir Francis Bacon was a
member of the house of commons when the St.
1 Jac. 1. c. 12, was enacted. It is not likely
In* opposed it, considering the trash he wrote
about witches. See b*vo. Edition, 1803, Bacon'*
works, pp. QT, 46, 02, 69. This act originated
in the Upper House, where the committee to
which it wiis referred, contained 12 bishop*.
1 Cobb. Pari. Iliat. 1018. Coke was Attoro«J
General.

1053]

STATE TRIALS, 13 James I. 161 6— /or Witchcraft.

[1054

fesse nothing to any of them, but continue con-
stant in her made promise, rely upon him, and*
bee would save her. This was too high a
itraine above his reach to have made it good,
and a note of his false descant, who having
compassed this wretched woman, brought her
to a shamefull and untimely end ; yet doing
aothiug herein contrary to his malicious pur-
poses, for hee was a murtherer from the begin-
ning, Iohn 8, 44. Now then, to descend to
particulars, and the effects of tins hellish asso-
ciation made. Being thus ioyned and linked
together in a reciprocal! league, he beginneth
to worke for her, in procuring the mischiefe of
those whom she maligned, whereof these few
acknowledged by herselfe, may yeeld some
taste of mure, though concealed.

Her wicked practice against John Orkton.

The first who tasted of the gall of her bitter-
ness was lohn Orkton a sailer, and a man of
strong constitution of body, who about some
five yeares sithence, returning out of Holland
in the Netherland, or Low Countries beyond the
seas, happened, for some misdemeanors com-
mitted by him to strike the sonnc of this Mary
Smith (but in such sort as could not in reason
bee offensively taken) who hearing his com-

Stint, came foorth into the streete, cursiugand
nning him therefore, as oftentimes shee did,
dwelling in the next adjoyiung house, and
wjshed in a most earnest and bitter manner,
that his fingers might rotte otf; whereupon
presently hee grew weake, distempered in sto-
macke, and could digest no meate, nor other
nourishment received, and this discrasie or fee-
blenesse continued for the space of three quar-
ters of a yeare ; which time expired, the fore-
mentioned griefe fel downe from the stomacke
into his hands and fcete, so that his fingers did
corrupt, and were cut otf; as also his toes pu-
trified and consumed in a very strange and ad-
mirable manner Neverthelcsse, notwithstand-
ing these calamities, so long as hee was able,
went still to sea, in the goods and shippes of
sundry merchants (for it was his onely meanes
of lining) but never could make any prosperous
voyage (as then other men did) eyther bene-
ficiau to the owners, or profitable to himselfe.
Whereupon, not willing to bee hindrance to
others, and procure no good for his own main-
tenance by his labours, he left that trade of life,
and kept home, where his former griefe en-
creasing, sought to ohtaine help and remedie
by chirurgery, and for this end went to Yar-
mouth, hoping to be cured by one there, who
was sccomptcd very skillfull : but no medicines
applyed by the rules of arte and experience,
wrought any expected or lioped for effect : for
both his handes and feete, which seemed in
some measure every evening to be healing, in
the morning were found to have gone backward,
and growne far worse then before : so that the
chirurgian perceiving his labour to bee wholly
frustrate, gave over the cure, and the diseased
patient still contiuueth in a most distressed,
and miserable estate, unto the which hee was

brought by the hellish practises of this mali-
tious woman, who long before openly in the
streetes, (when as yet the neighbours knew of
no such thing) reioycing at the calamity, said,
Orketon now lyeth a rotting. And no marvell
though she could tell that which hereclfe had
done, and her good maister would not suffer
to be coucealed, but that the testimony of her
owne tongue should remane as a record to-
wardes her further detection and condemnation,
who sought meanes of her voluntary accord to
be reconciled with the wofull distressed party,
but this was nothing else but to plaister over
and disguise her former inhumane and barba-
rous actions, for no reliefe at all followed
thereof: for oftentimes, as hath been pro-
cured, the divells and witches his instruments
doe cause such diseases, which neytherthe one,
nor the other can remove ngaine. And this
is not any vaporous imagination, but a most
undoubted trueth. For now this poor man
continued) still in a lamentable estate, griefe,
and paines encreasing, without hope of helpe,'
except God in the abundance of his tender
mercies vouchsafe to grunt comfort and dthr
verance.

Her wicked practice against Elizabeth Han-

cocke.

The second person distressed, by tins witch,
was Elizabeth Hancocke, then widdow, now
wife of lames Scot : the maner, occasion, and
proceeding of whose dealing against her was
thus. She comining out of the towne from the
shoppe of one Simon Browne a silkeman, unto
whom she bad carried home some worke, which
was by him put out unto her ; Henry Smith,
as shee passed by his doore, tooke her by the
hand, and smilingly said, that his ducke (mean-
ing his wife, this woman of whom we now
speake) tolde him that shee had stolne her
hemic ; which wordes shee then passed over,
as onely spoken in merriment, and denying the
same : in the ineane time, as they were inter-
changing these words, shee came herselfe, and
directly charged her with the henne, and
wished that the bones thereof might sticke in
her throat, when she should eate the same :
which speech also she made no great reckoning
of, supposing them to be but words of course,
and might bee uttered in jest. Nevertheless,
afterward better considering of the same, con-
ceived much griefe, to bee counted one of so
evill quality and disposition, and espying that
hen for which she was accused, to sit upon the
hatch of her shoppe doore, went to her, and
mooved with the indignity ot* that slaunder,
and unjust imputation, told her in some pas-
sion and angry manner, tliat it was a dishonest
part thus to blemish the good name of her
neighbors with >o untrue aspersions : where-
upon, breaking foorth in some violence, *he
wished the pox to light upon her, and named
herprowde Iinny, pro*de flurti, and shaking
the hand, bade her go in, for she should repent
it; and the same night, within three or foure
liourcs after these curses and imprecations

1

1055] STATE TRIALS, 13 Jam*s t. 1615. — 7%r Case qf Mary

tittered, sbe was taken imd pinched at the
heart, and felt a sodaine weaknesse in all the
parts of her body ; yet her appetite to roeate
nothing diminished, and so continued for the
space of three weekes; m which time, when
she was any thing well, would come to the
doore, and leane upon the stall, whom this
Marie Smith seeing, did ever banne, adding
the^ former curse, the poxe light upon you, can
you yet come to the doore ? and at the end of
these three weekes, beeing but very weake,
came foorth as shee used to doe, to take the
ayre, this mischievous woman most bitterly
cursed her againe, whereupon she went into
the house, fell into such a tort a ring fit, and nip-
ping at the heart, that she fainted, hardly re-
coverable for the space of halfe an houre, and
so grievously racked and tormented through all
pmts of her body, as if the very flesh had beene
tome from the bones, by the violent paiue
whereof sbe could not refraiue, but tore the
haire from off her head, and became as one
distraught, bereaved of sence, and understand-
ing : and the same night the bed whereon she
lay, was so tossed, and lifted up and downe,
both in her owne feeling, and in the sight of
others, then present beholders of her extreami-
ties, by the space of one houre or more, that
she was therewith exceedingly terrified, and
did thinke oftentimes in her sleepe, that she did
sec this Marie Smith standing before her. And
this fit continued sixteene houres, during which
passion Kdwurd Drake her father came to the
towne, touched with griefe for this torture of
his daughter (as parents hearts are relenting
and tender, and naturall compassion is soone
stirred \\p in them) tooke her urine, went to
one for hi* advice (whose fact herein is no way
justifiable, and argued but a small measure of
religon, and the knowledge of God in him)
who first tolde unto him the cause of his com-
ming, thut is, to seeke help for his daughter,
and then added, ihat she was so farre spent,
that if hee had s»tayed but one day longer, the
woman who had wronged her, would have
spent her heart, and so. become unrecoverable,
and thereupon shewed him her face in a glasse;
and further, opened the beginning cause of
falling out, which was for a hen, which before
this, Drake neither knew nor heard of, and
then gave his counsel! for remedy, which was
the matter sought for and desired, and that was
in this order. To make a cake with flower
from the bakers, and to mix the same instead
of other liquor, with her owne water, and bake
it on the harth, whereof the one half was to he
applyed and laid to the region of the heart, the
other halfe to the back directly opposit ; and
further, gave a box of ointment like triacle,
which must be spread upon that cake, and a
powder to be cast upon the same, and certaine
words written in a paper, to be layd on like*
wise wiih the other, adding this caveat, that if
his daughter did not amend within six houres
sifter the taking of these receits, then there was
no health or recovery to be looked for : and
farther, wished silence to be kept herein! for

[105C

the woman who bad done this, would know
any thing.

And being thus furnished with instructions,
and returning home, as hee alighted from bis
horse to enter into that house where his daugh-
ter lay (being the next unto Mary Smiths) shee
then stood leaning over her shop window,
whom bee knew to be that person, which was
shewed unto him, and she cursed lam passing
by, and told his daughter that her father had
beene with a wisard. And the next day fol-
lowing after they had put in practice the direc-
tions given, she affirmed to divers of the neigh-
bours, that Drake the afflicted womans father,
had beene to aske counsel], and made a witch
cake, but shee would leame how they came
to have that knowledge : yet for the present
she found helpe, and was treed from the lan-
guishing and other conflicts wherewith she wis
assaulted bv the space of sixe weekes.

After this, being married unto lames Scot, a
great cat which kept with this witch (of wiiose
iufernall both purposes and practises wee now
speake) frequented their house; and upon
doing some scathe, her husband moved ther-
with, thrust it twice through with his sword:
which notwithstanding those wounds received,
ran away : then he stroke it with all- his force
upon the head with a great pike staffe, yet
could not kill her ; but shee leapt after this
upward almost a yard from the boords of that
chamber where she now was, and crept downe:
which hee perceiving, willed his lad (a boy of
foureteene yeares; to dragge her to the muck-
hill, but was not able ; and therefore 'put her
into a sacke, and being in the same, she still
moved and stirred. Whereupon they put her
out againe, and cast her under a paire or staires,
purposing in the moraine, to get more helpe,
and carry her away ; but then she could not
be found, though all the doores thai night were.
jncked, and they never heard what afterward
became thereof.

Not long after, tins witch came forth with a
birchin broome, and threatened to lay it upon
the head of Elizabeth Scot, and defiled tier
cloathes therewith, as she swept the street be-
fore her shop doort, and that in the sight of her
husband, who not digesting this indignity
offered unto bis wife, threatened that if tut
had any such fits, as she endured being a
widow before marriage, hee would bang her.
At this she clapped her hands, and said het
killed her cat. And within two or three dayes
after this interchange of words betweene them,
hi* wife was perplexed with the like paine and
griefe at her heart, as formerly shee had beene;
and that for two dayes and a night : wherefore
her husband went to this wrathfull and lnalt*
cious person, assuring that if his wife did not
amend, hee would accuse her to the magistrate,
and cause the rigor of the law to l>e executed
upon her, which is due to such malefactors.
These things were done some three yeares
sithence. The party troubled vet liveth, bet
in no confirmed health, nor perfect soundncssf
of body.

1057]

STATE TRIALS, ISJamwL \Z\6.—fi» Witchcrqft.

[1058

Her wicked practices against Cicely Balyc.

A third subiect wbereupon this wrathfull
womans anger wrought, was Cicely Balye, then
servant to Robert Coulton, now wire of Wil-
liam Vaux, who sweeping the street before her
inaisrers doore upon a Saturday in the evening,
Mary Smith began to picke aquarrell about the
manner, of sweeping, and said unto her she
was a great rut-tailed sow, but that fatnesse
should shortly he pulled downe and abated.
And the next night being Sunday immediately
following, a cat came unto her, sate upon her
breast, with which she was grievously tor-
mented, and so oppressed, that she could not
without great difficulty draw her breath, and at
the same instant did perfectly see the said Mary
in the chamber where she lay, who (as she con-
ceived) set that cat upon her, and immediately
after fell sicke, languished, and grew exceeding
leane ; and so continued for the space ur' hulfe
a yeare together, during the whole continuance
in her maister's service ; untill departing from
him, she dwelt with one ni:3trcss Garroway,
and then began to bee amended in her health,
find recover of her former pining skknesse :
for this witch hud said, tliat so long as s-he dwelt
neare her, she should not be well, but grow
from evill to worse.

• Thus every fight trifle (for what can bee lesse
then sweeping of a little dust awry ?) can mi-
nister matter to set on fire a wrathfull indig-
nation, and inflame it unto desired revenge, the
Divell being willing to apprehend and take
hold upon such an occasion, that so he might
do some pleasing office to his bond-slave, whom
she adored in suhmisse maner, upon her knees,
with strange gestures, uttering many murmur-
ing, broken, and imperfect speeches, as this
Cicely did both heare and see, there being no
other partition between the chamber wherein
shee performed these rites, and the house of her
maister with whom she then dwelt, \)ut only a
thin seeling of boord, through a cranny or rid
whereof she looked, listened attentive unto her
words, and beheld diligently her behaviour,
and might have seene and heard much more,
hut that she was with the present spectacle so
affrighted, that shee hasted downe in much
feare and distemper.

Her wicked practice against Edmund Newton,

The fourth endamranged by this hagge, was
one Edmund Newton : the discontentment did
arise from this ground ; because hee had bought
severall bargain es of Holland cheese, and sold
them againe, by which she thought her benefit
to be somewhat impaired, using the like kiude
of trading. The manner of her dealing with
him was in this sort. At every severall time of
buy in v cheese he was grievously afflicted, being
thrice, and at the last, either she or a spirit in
her likenesse did appeare unto him, and whisked
about his face (as he lay in bed) a wet cloath
of very loathsome savour ; after which hee did
see one cioathed in russet with a little hush
. beard, who told hiiu hee was tent to looke upon
VOL. H.

| his sore lesjge, and would heale it ; l.ut rising
to shew the same, perceiving hee hud cloven
feet, refused that offer, who then (these being
no vaine conceits, or phantasies, but well ad-
vised and diligently jconsidered observances)
suddenly vanished out of si^ht. After this she
sent her impe% a toad, and crabs crawling
about the house, which was a sh'nn-pe plnn-
chered with boord«, where his servants (hee
'btiii£ a shooe-maker) did worke : one of which
tooke that toad, put it into the fire, where it
made a groaning noyse for one quarter of an
houre beibre it was consumed ; during which
time Mary Smith who sent it, did endure, (as
was reported) torturing paiues, testifying the
felt grief e by her out-cryes then made. >

The S'cknesse which he first sustained, was
m manner of a madjiesse or phrensie, yet with
some interposed re have of extremity : so that
for thirteene or fouretcene weekes together
hee would be of perfect memory, other times
distracted and deprived of all sense. Also the
ioynts and parts of his body were benummed,
besides other pains and griefes from which hee
is not yet freed, but contmueth in great wcak-
nesse, disabled to j.ertorme any labour, whereby
hee may get sufficient and competent mainte-
nance. And by the councel of some, sending
for this woman by whom hee was wronged, tii.tt
he might scratch her (for this hath gone as
currant, and may plead prescription for warrant,'
a foule sitine among Christ iiins to thinkc ona
witch-craft can drive out another) his nailes
turned like feathers, having no strength to lay
his hands upon her.

And it is not improbable but that she had
dealt no better with others then these above
mentioned. For Mr. Thomas Yonges of Lon-
don, fishmonger, reported unto me, that after
the demand of a debt due unto Mr. Tohn
Mason, silkc-mnn of the same "cit-e, whose
widow hee married, from Henry Smith plover
her husband, some execrations and curses being
wished unto him, within three or fuure dayes
(being then gone to Yarmouth in Nor (bike
upon necessary businesse) he there fell sicke,
and was tortured with exceeding and massacring
griefes, which by no meanes (having used the ad-
vise of sundry learned and experienced phy*itians
in Norwich) could in any part be mitigated, and
so extraordinarily vexed thirteene moncths, was
constrained to go on crutches, not being able
to feed hiinsclfe, and amended not before this
mischievous woman was committed to prison*
(accused for other wickednesses of the like
kiude) at which time (so neere as he could con-
iectqre) he then received some release of his
former pains, though at the present when bee
made this relation, which was at Candlemas
last past, had not perfectly recovered his
wonted strength : for his left hand remained
lame, and without use.

But thus much by the way onely, omitting
how before this accident a great water-dogge
ran over his bed, the doore of the chamber
where he lay being shut, no such one knowna
(for careful! enquiry was made) either to hav#

2 V

i

IQ59] STATE TRIALS, 16 James I. \6\H.— Proceeding agtbist 3fr. Wraynham, [lOfiO

beene in that house where hee lodged, or in
the whole towne at any time.

I doe not insist upon this, because shec did
not nominate him or any other unto us, hut
onely those foure already expressed : and fur
the wrongs done to them, she craved mercy at
Gods hands, as for nil other her sins, and in
particular for that of witch-craft, renounced
the Divell, tin I) raced the mercies of God pur-
chased hv the obedience of Itsus Christ, and
professtd that her hppe was oik ly by h>s suffer-
ing ami passion to bee sautd. And all these,
that is lo say, her former grievous offences com-
mitted against God, and his people, her defi-
ance of the Divell, and reposing ad confidence
of valuation in Christ lesus alone, and hi*
merits, she in p irticular manor conferee
openly at the place of execution, in the audi-
ence of multitudes of people gathered together
(as is usu.dl it ^uih time s) to be beholders of
her death. Andm.uU there also proie^i<n of
lier faith, and hope of a hetter life lierea'ter ;
and the rn canes wherein she trusted to obtaine
tlve same, a» before, hath bee.»e specified. And

being asked, if she would be contented to hare
a psalme sung, answered willingly that she de-
sired the same, and appointed it heneifc, the
Lamentation of a Sinner, whose beginning is;
Lord turne not away thy face, &c. And after the
ending thereof thus finished her life : so that
in the iudgement of charily we are to conceive
the best, and (hinke she resteth in peace, not-
withstanding her hey nous transgressions for-
merly committed : for there u no malady in-
curable to the Almighty physitian, Esai. 1, 18.
Ezech. 33, 11. 1 here fore Cain e did iniury to
God, w lien coin icted of the barbarous and unna-
tural 1 muiihcr of his righteous brother, he cryed
out that his sinne was gi eater then could be
forgiven, Gen. 4, 13. U>* Gods mercy is greater
then mans misery can be. Aud eveu tor the
like unto this very fact, we have a booke case,
already adiudged, and over- ruled in those Ephe-
sian«, wh«i brought tht ir coniuring U> ikes, sa-
crificed them in the fire, ttstiuiated at the
value of 900/. of our money, r< pen ted of their
sinues, and obtained mercy, Acts 19, vers. 191

113. Proceedings against Mr. Wratxiiam, in the Star-Chamber,
for Slandering the Lord-Chancellor Bacon of Injustice, Pasch,
16 James I. a. d. 1618.*

BEFORE the duke of Lenox; the earl of
Suffolk, l«>rd trrasurer ; the earl of Worces-
ter, lord privy seal ; the earl of Pembroke,
lord chain herlain ; the earl of Arundel ; Vis-
count Wailiiicford ; sir Fu'ke Greville, chan-
cellor of the exchequer ; Dr. Abbot, lord
archbishop of Canterbury; Dr. King, bishop
of London; Dr. Andrews, bishop of Ely; sir
Edward Montague, 1. c. justice of the King V
bench ; sir Henry Hobart, 1. c. justice of the
Common Pleas ; sir Laurence Tanfield, Lord
chief baron of the Exchequer; sir Edward
Coke; sir Thomas Lake, principal secretary ;
sir Henry Cnry, comptroller.

Sir Henry Yclvcrton, Attorney General. —
May it please your Lordships; It i> the honour of
this Court, that it represents the highest earthly
majesty, and his presence; and it is his majesty's
honour, that as nim>elf is clothed with justice,
so you, as the greatest and highest next hisma-

* Tt should seem from the pt oceedings agninst
Wraynhain for libelling lord liacon with regard
to one of his Decrees, that the Chancellors some-
times decided causes rather in a more summarv
manner than is iiiiial at presmt. See also what
Roper, as quoted by Mr. Harrington, s::ys of sir
Thomas M ore's often stopping proceedings upon
his perusal of bills preferred to him. Among
other curious particulars to l.e inferred from
this trial, it ib very clear that the Master of the
Rolls was then considered only as the first
Master in Chancery, as his rcpo. ta are frequently
alluded to. See barring ton Observations on
•tat. 15 Hen. 6.

jesty, should put on the same garment. Cle-
mency aud justice are the two lights of every
kingdom, without which your persons and es-
tates would be exposed to violence, and with-
out which great monarchies would be bat great
thefts; and as justice is not to be recompensed
in price, so ought not the scandal hereof to |0
unpunished ; especially, when it tnuclteth so
great a person, as, iu the sacred seat of justice,-
is next to the king; tile Chief Judge in uu*
Court, and the sole Judge in Chancery, who is
much defamed by the gentleman at the bar, ia
the most precious point of all his virtues, his
Justice : be it spokeu without offence, basely
and blamelessly is my Lord Chancellor tra-
duced, as if he deserved that all the thunder-
bolts of heaven should fall upon him.

At my lord's first coining into this place, be
found a Cau«c in Chancery, between this gen-
tleman at the bar, and one Mr. Fisher, not con-
troverted in the title, but concerning the value
of the lease, which Fisher held of. Wraynham;
in which, the Lord Chancellor perused the pro-
ceedings ot the cause, called the parties to give
a summary end to so tedious a cause; and be-
cause the success answered not the desire of
this gentleman, therefore he kicks against au-
thority, who before was not more grieved at the
expenee, than now impatient at the sentence;
which was not want of justice in my lord, but
of equity in the cause.

I confess I was of counsel with Mr. Wraya-
hnm, and pressed his cau*e as fur as equity
would suffer ; but I kuow that Judges look "ilk
other eyes thau Counsellors do ; they go not

1061] STATE TRIALS, 16 Jams* I. mt.^Jor dmdering Lord Bacon. [1062

by tale, but by weight. And therefore, their
judgment mutt answer the counsel, and quiet
the mind of the party ; and though in gaming
losers may speak, yet in judgment they must
be silent ; because it is presumed that nothing
is taken from them but what is none of theirs.
Bat this gentleman being of an unquiet spirit,
after a secret murmuring, breaks out into a
complaint to his majesty ; nnd not staying his
return out of Scotland, but fancying himself, as
if lie saw some cloud arising over my lord,
wearyiog and tiring his majesty with infinite
supplications in tliis case. And now, my lords,
as if ull his former cause had been lost, he pre-
sents it no more in parts, or loose papers,
but compiling his undigested thoughts into a
Libel, though tho volume was but in quarto,
fastens it on tlie king on Good Friday last. And
bis most princely majesty, finding it stuffed up
with most bitter reviling speeches against so
great and worthy a Judge, hath of himself com-
manded roe this day to set forth and manifest
bis fault unto your lordships, that so he might
receive deserved punishment.

In this velvet pamphlet (for this Book is
bound in velvet) is set forth his cause, the work
of this day; wherein Air. Wraynham saith, he
had two decrees in die first Lord Chancellor's
time, beth under the great seal, and yet both
are altered since the last lord chancellor's death,
and cancelled by this lord clmnceilor in a pre-
posterous manner; and 1, without cause; 9,,
without matter ; 3, without any legal proceed-
ing ; 4, without precedent; 5, upon the party's
bare suggestions; and 6, without calling Mr.
IVraynhum to answer. And of this, my lords,
spitefully he imagines a threefold end : 1, to
reward Fisher's fraud and perjuries ; 3, to pal-
liate his unjust proceedings, und to rack things
out of joint : and 3, to confound Wraynham's
estate : and that my lord was therein led by the
rule of hit own fancy. Yet he stayed not here ;
bat, as if tie would set spurs ugainst my lord,
be aggravate;} my lord's injustice to be worse
(ban murder ; saying, That in liis Sentence, he
bath devoured hun and his whole family. And
secondly, as if one sin should follow upon aoo-
ther, he doubles it upon my lord, and, in a man-
lier, plainly gives my lord the lye. And hear-
ing that ray lord had satisfied his majesty in
this case; he aaUli in his Book, that he that did
it unjustly, must, to maintain it, speak untruly,
adding falsbood to my lord's injustice; saying
in his Book, it is given out my lord hath begged
Wraynham's pardon : which, though it be the
shew of a gentle heart, yet argues a guilty con-
science, and is but my lord's cunning to avoid
the hearing of the cause. And as if my lord
should know his own disease to be foul, and
were unwilling to have it searched or discovered ;
he charged my lord with shifts, and tells him
that he hath palliated oppression with greatness,
wit and eloquence ; and that the height of au-
thority makes men presume. And to make
this yet more sliarp, be urgeth, that my lord, to
maintain this, useth secret means, whereby the
unsoundness of his actions may not be seen,

and so to avoid censure ; and, as if in y lord
should have skill in magic, he saith, That my
lord hath raised a repoit from hell of the late
Master of the Kolh, which was confuted before
his face, and damned before his death : not
content to scandalize the living, but so far, my
lords, doth his malice overspread his wisdom,
that he doth not cease, with his nails, to scrape
the dead out of their graves again. When it is
well known unto your lordships, that the Mas-
ter of the Rolls was a roan of gieat understand-
ing, great pains, great experience, great dex-
terity, nnd of great integrity ; yet, because this
cause tell by casualty into his hands, by reve-
rence from the last lord chancellor, and he fol-
lowed not this man's humour in his report;
therefore he brands him with these aspersions,
and adds this to the rest, That he grounded this
report upon witnesses that swore impossibili-
ties, gross absurdities, and apparent untruths.
How can you but think, my lords, but that this
gentleman's bead is full of poison, seeing it fell
out so fast then into his pen, trampling upou
the dead? And this is nn addition unto his pu-
nishment, the injury of him that is dead, be-
cause the state yet lives, wherein his justice is
scandalized.

And now, my lords, tliat you may the more
detest his slanders, whereby he goeth about to
slander my Lord Chnncelloi's justice ; give me
leave to open the plain and even way, wherein
this great judge walks in this particular case.
The questions in Chancery at first were two,
between Wraynham and Fisher, upon cross
suits, either against the other ; Wraynham com-
plains of trust broken, whereby he was de-
frauded ; Fisher upon a debt of a private reckon-
ing detained by Wmynbnra. Upon proof at'
both these, it was by absent ordered, That
Fisher should assign the lease made unto him
upon trust, and Wraynham should pay the mo-
ney, so well proved to be due to Fisher : so by
assent was the decree had, uhich is the first
decree.

Bus Mr. Wraynham, wisely suspecting that
Mr. Fisher had incumbered his lease, and if it
should be assigned to him according to the de-
cree, it would be merely illusory ; he exhibits a
new bill to discover what charge, and in what
sort, Fisher bad charged the land with incum-
brance*. And Mr. Wraynham finding the in-
cumbrances greater, upon the reference of the
lord chancellor to the master of the rolls, a
bargain was mediated between them, that Fisher
sliould bold the lease in question, and Wrayn-
ham should have after the rate of twelve years
purchase ; and to this both assented : so that
your lordships see that the first decree was not
cancelled by my Lord Chancellor, but discharged
by himself; for by the decree he might have
had the lease ; but he contented himself with
twelve years purchase.

After this, the question grew upon the value,
which being referred to the last Master of the
Rolls, how the value was at first, before the im-
provement, when it was in lease to one Hurply,
and there, upon proof and oath of divers wis-

1063] STATE TRIALS, 16 James I. 1618. — Proceedings against Mr. Wraynkam, [1064

cause be was tyed to a dry rent; and finding
that Wraynham was neither willing nor able Co
return the 2400/. with damages unto Fisher, my
Lord-Chancellor thought fit to establish the
bargain, according to the first certificate of the
master of the roll* upon oaths ; because the last
certificate without oath, was not so equal in.the
balance of justice, as that with oath, certified
by the master of the rolls, upon ihc examination
of divers witnesses.

Now, mv good lords, if this case stands thus,

n esses, the Master of the Hulls returned and
certified the constant produce of the lease to be
worth 200/. by tne year ; w,.ereupon Wrayn-
limu was to have it at twelve wars purcliase,
amounting to 2,40*)/. Mr. YVraynham beeiug
the laud wa> much improved by u defence made
uguiiibt the sea and other means, whereby the
nature of the land was. uttered, and the profit
luuch raised, moves the Lord Chancellor not to
recede from the baigain, but sairh, that the
value returned was not the true value, for the

land, was worth 400/. by the year, and yefr ex- ' what injustice is there commuted? What oo-
cepts by retainer in his hands, 2000 murks , s<jiiudne«s is there in this action ? or, what
which he owed to Fisher, 1,066/. odd money ; j cause is there tor my Lord Chancellor to hide
whereby now Mr. Wraynhaiu had received nis
2,40U/..in hi? pane. And w hen he saw him-
self thus fleeced, having received 2,400/. for
that which co*t but 200/. now he stirs up new
suits, and moves the Lord Chancellor by a com-
mission to refer the value to cwo knights that
had been hum Lid to the land, that they might
certify the true vuluc : the one, sir (/Estrange
Moi daunt, \\1k> cm lilies the value 3 18/. Yearly;
and the other, sir Henry ipillmj-.n, certiiiedthe
value to he ;><,4/. yeurlv; and my Lord Chun-
cellor strikes ht-iwecn (hem, and makes it 340/.
So here is si (inference of value?, the first of
200/. upon oath yearly, an I this at 340/. yearly,
without oath. The first value is at the time of
IIarply*s lease, the second is at the time of the
commission granted ; and after improvement of
which, your lordships well know in your wis-
dom, the ditlerence between land barren, and
improved in value. The list Lord Chancellor,
according to the amounting value of 340/. a
year, annexed the increase to Wrayn ham's bar-
gain, and that he shmld have it, as if the lands
were worth 340/. per nnn. So that now, the
2,400.'. in his pm-->e, had been worth 1,680/. an-
nexed above 4,(H>0/. Mr. Fisher finding this
annexed to the burgain, and that he should be
preyed to pay the surplusage, and that he had
choice either to pay the money, or to part with
the lease ; Fisher moved the court, that he
might give up the lease, and desires his first

2,000 marks with damages, which Wraynham i faculties will be imperfect. Yet, my hints, I
assented to, so that he might have defalcation I know that my lord is the branch of such a tree,
of that which Fisher had received of the profits j who, though he blossom'd last, yet took more
of the land. Upon this, upon consent of par- j sap from the root than any of the rest : the son
ties, it was again decreed (and this is the second ' living in the memory of so worthy a father, the
Decree, which Wraynham so much triumphs father living in the memory of so virtuous a *hi,
upon, not being an absolute and fiositive De- who may say, as Agesilaus once said to his
cree, but. rjuul. lied with this): 1. 'I hat Wrayn-

himself, that this gentleman should in this
decluim against him this day ? If it were, ny
lords, to make my Lord-Chancellor, for fear,
to take off his hand ; he will let the world know
he is more constant and courageous in the poind
of justice, than that which be did so justly, st>
slightly to revoke. And if it were to this end,
to make my Lord-Chancellor to dispute with
Mr. Wraynhajn; I am to let you know from his
majesty, that he will not let him forego, nor tor*
get his place, su much as to enter into debate
with Mr. Wraynhara, knowing that it were aot
fit for him to stand to wrestle or wrangle with
Mr. Wraynhura, but rather to despise so mean
an adversary.

My lords vou know, that wise and just men
may walk the same way, though not the same
passage; there are divers- courses and divers
ways to the same end, justice : for justice sake,
they are both to be honoured, neither to be
blamed. For, my lords, if judges stnuld be
traduced as unjust, because they differ in opi-
nion, they should have thnnklets offices. Jus-
tice is the harmony of heaven, but ' Lingua
' detractions est lancea triplex.' Though this
gentleman hath sweat hard to scotf and dare so
high a judge, yet the razor of his tongue canaot
charge him that any thine came between God
und his own conscience, but the merits of lbs
cause ; though it be certainly true, whilst a maa
carries this flesh about him, hit judgments and

hum should pay t!;e 2,100/. with damages to
Fisher : and 2, That Wraynhain should have
defalcation of Mich proiits as Mr. Fisher liad
received out of the land.

Mr. Wravnharii striw-s with this second De-

father, ' I obey you in judging nothing contrary
to law.'

I am glad this gentleman is so naked of tv
cuse, yet heartily sorTy his defamation is »
foul, as to draw such a smart of punishment as
this will be upon him ; and here if necessity

crev, being willing to have the value of the land, (the true defender of man's wickedness) should
not a ccordu:g us Fisher had received, but what | step in, I answer, Though necessity break
he might have recovered. through ail laws, yet flying into the face of jus-

tice, it must be broken by justice ; else no nib-

Now my Lord-Chancellor finding the case
thus standing, thought it no injustice against
\Y ray a ham's own offer, not that Fisher sliould
lose his damages, having for born 2400/. ten
years, nor that Wrayiiham should be allowed
more defidcatiou than Fu>ber could receive, be-

je»ct can be safe, nor no court keep itself from
infamy.

It is well, my lord, that this fault falls o«J
but seldom ; for being exorbitant when it hap-
pens, it cannot but be foul. It is a perniciooi

1065] STATE TRIALS, 16 James I. 1618.- for Pandering Lord Bacon. [1060

example; for by this, when slanders are pre-
sented instead of complaints, that is but to set
divisious between the king and his great magis-
trates, to discourage judges, and vilify justice in
the sight and mouths of all the people. There-
fore 1 beseech your lordships to pardon me, if
I be too long, and suffer me to shew your lord-
ships what this court, hi like cases, hath done.

In the second year of his majesty's reign,
when sir Edward Coke, according to his place,
informed against Fourth in this court, ore tenus,
for petitioning his majesty against the last Lord-
Chancellor, lor granting an injunction for stay-
ing of a suit at the common law, (which your
lordships know how necessary it is) he being
convicted upon his own confession, received n
sharp censure. I will conclude with this one,
and I shall desire your lordships, in this place,
to bear it read ; and then do humbly beseech
your lordships to Itear the gentleman at the bar,
either for his defence, or excuse.

Then W ray n ham's Examinations were read
in this Book and Epistle.

Then he was charged with these words fol-
lowing, in the end of his Epistle to his majesty :
4 He that judgf-th unjustly, must, to maintain
' it, speak untruly; and the height of authority

* makethinen to presume/ Also, in shewing of
his majesty reus- mis why the Master of the Holls
was faulty, he said, 1. The master of the rolls
had omitted many of his material proofs. 2.
He shifted otf other some. 3. That he some-
times wrested the equitv of his cause. 4. That
he did ml-ely cite Fisher's proofs. 5. That he
grounded the report upon the deposition of
witnesses ihiit satire absurdities, untruths, and
mere impossibilities. And, lastly, us if the re-
port hail lj<-?en condemned and damned before
to the pit ol hell, he said it was raised a* ab
inferno.

In his Rpistlc to his majesty, he is charged
with these words: ' I understand my Lord-

* Chancellor hath becged my pardon : it is out-
4 wardly the shew of a great heart, hut inwardly
'it argueth a guilty conscience; otherwise, if
' first I had been found guilty, and his lordship

* should then have interceded with his majesty

* for me, it had been an argument of an indul-

* jent nature; but to bee; pardon where there
' is no need, wa-» manifestly done to avoid «fi
' hearing, and not in pity towards me; for he
4 that despoiK me of my goods, I will not rro*t

* him with mv person. And therefore, far be
' it from me U) hope, or trust in his goodness : I
' disclaim hi., favour, and infinitely deplore the
' judgment of his majesty.'

And in the conclusion of his Epistle were
these wordi : • I desire to suffer at your gates,
4 if 1 shall dare to slander so great and eminent

* a judge, unto so great and wise a king. I f he

* should not desire to reward the Fishers for
' their fraud and perjuries, I know not why he

* should have nicked all out of joint. My lord,
' with this his last running and rhetorick, hath
4 palliated his unju.it proceedings against me;
'fcrmi lord's gesture and pronunciation in his

* speech if wanting in my writing, out of which

' a cloudy mist may rise to hide the verity of
' your princely judgment. — 1 could never see

* by what reasons or words his lordship hath
' coloured his dealings to excuse himself unto
' your majesty, understanding only a piece, and
' not tlte whole from your majesty. This must
' move me most humbly to beseech your ma-
' jesty to save my wife and children ; and out
' of your princely justice to appoint a day of
( hearing, whereby there shall appear unto your
' majesty, as well the sincerity of my affirma-
' tior.s, as the unsoundness of his lordship's

* actio us. For I never sought corners, but
' openly, and sometimes in my lord's presence,
' have notified and complained of my wrongs,
( and desire a public hearing before yoar ma-

* je*ty, which the greatest subject dares not do
( without truth and justice.'

And in another place, Wravnham saith,
' My lord chancellor proves nothing by record,
' nor delivers any thing by writing, to answer
' the things objected against him ; but would
' hide himself from the eyes of your majesty's
'justice.'

His majesty saith, though he receive peti-
tions from his subjects against his highest jus-
tices ; yet he will have his judges know, that
they are subject to his account only, and to
none else upon earth. His majesty received
this petition on Good-Friday last, in which this
gentleman hath so fur exceeded the measure
of an humble complaint, that I must appeal to
your lordships against him.

Then was Foorth's precedent read, bearing
date 14th Nov. termino Mich. 2 Jar. 1. And
likewise Foorth's two last Petitions against my
lord-chancellor, touching which reference is
had. And the lords asked Mr. Wraynhaiu
what he could say for himself.

Mr. Wraynham. Right honourable, and my
very good lords ; from a man so perplexed with
ho many mi*eric«, * hat cau be expected ? and
what marvel, if I should fa niter, or might let
fall any speech that might seem uncomely ? My
lords, I know not how to behave myself, I will
not willingly offend any, but especially the
king's most excellent majesty; yet nature
commands me to defend myself, for it cannot
be thought he can be faithful ro another, that
is noi so to himself. And therefore I humbly
desire that what I offer in extenuation, or de-
fence, tbut neither tie meanest that hear if,
nor your lordship*, which are to judge of it,
would take it offensively. Mv Hook cousisteth
of three parts. 1. An Epistli- to tiis majesty.
2. The body of the book, winch relateth the
truth of all tne proceedings. And, 3. a conclu-
sive Speech in the nature of an epilogue.

louchint; the bodv of the Book, and the
truth of the cause, I conctivc it not now called
in rjuebtion, for I think your lordships will not
enter into the particulars ; but because it hath
pleased Mr. Attorney to speak something of it,
f will not he silent. My accusations, my lords,
are set forth in two thing* : 1, that the com-
plaint is of. the rh;ht-hon. the lord-chancellor.
9. That it is in Utter and un reverend terms. —

1071] STATE TRIALS, 16 James I. 1618. — lhwxedings against Mr. Wntynham, [\Qfti

certificate, and found 900/. a-year to be as
much as ike lands were worth. Hereupon the
Lord C liancellor gave a day to shew cause,
why the cause should not be decreed, which
was the Order, quarto Maii, 1610. After this
the lord Hobart, then Attorney, in the presence
of the master of the rolls himself, did set down
the defects of his own report.

Lord-Treusurtr. My lords, this is contrary
to all course, this must not be ; for we mean
not to enter into the merits of the cause.

Mr. Attorney Yelverlon, Mr. Wraynham,
for you to shift it off, doth but aggravate your
offence; for when you say, you used the rest
of your phrases as synonymies to injustice, that
implieth a taxation of his lordship in point of
justice; and so likewise do your words imply,
when you say, by the greatness of his wit and
eloquence he doth palliate the injustice of the
cause : therefore tax my lord particularly with
one point of injustice.

Here Mr. Wraynham would not instance in
any one particular.

Wrayn. Had I thought his majesty would
not have heard my cause, I would have sat
down in silence, and have devoured my sorrow.
I have formerly set down to your lordships,
that my decree was reversed without a bill.

Mr. Attorney, That is, when the bill is ab-
solute and constant, for there it must have a
bill of revivor ; but when it depends upon sub-
sequent acts, and is qualified and conditional,
there it may be reversed without hill.

Wrayn. I humbly submit myself in all things
to your honourable and clement censure : for
the manner, I beseech your lordships pardon ;
and for the matter, I humbly crave compassion.

Mr. Serjeant Crea>. May it please your
lordships, the prisoner at the bar hath made a
good submission at the last, I would lie ha'l
begun with it. My lord?, the flux of fuul
mouths must be stopped, otherwise the tiraitcst
magistrates wHl be traduced and slandered io
majesty himself; and though it be not treason,
yet I have heard it from a great and honour-
able person sitting in this place, that it is cri-
men Lfite majcutatis. My lor;!-, for the two
lords, the one that lives, the other that is dead,
and their demeanor in this case, in honour uf
him that is dead, aud without flattery to him
that is alive; I say, they both judged according
to their consciences. The Lord Chancellor
that is dead, g*ve his judgment according to
his conscience, mid not according to the con-
science of another man, Iml according to the
integrity of his own heart: for the judges ure
to judge ' secundum u.M.juuin ct binum in foro
* conscientix.' And this lord al.*o judged out
of his noble conscience and nvemtv of hi?
heart; for, my lords, there was no bind in e
'decree. As for the merits < if the cause, it must
not be examined of lite one side, nor of the
Other, for both lords huve done according to
conscience coram lMt ct howinibus. And each
hath delivered his ovui seme strmrdineio their
consciences. The lord which is dead, when he
til Sim, was one of the oracles of tin.* wisdom

of the time; and my living lord attributes very
much unto him, whom God hath also inrichea
with great ornaments of nature; for no man,
no magistrate, hears with more attention, nor
no magistrate of justice attends with more
understanding aud patience. You then, Mr.
VVraynham, thus to traduce my lord, is a foul
offence, with that black mouth of yours - tub
cannot traduce him of corruption, for thanks
be to God, he hath always despised riches, and
set honour and justice before his eyes; and
where the magistrate is bribed, it is a sign of a
corrupted estate. For the justice of the cause;
my lords, I was of counsel with Fisher, and I
knew the merits of the cause ; for my Lord
Chancellor seeing what recompence Fisher
ought in justice to have received, and finding a
disability in Wrayn ham to perform it, was in-
forced to take the land from Wraynham to
give it to Fisher, which is hardly of value to
satisfy Fisher's true debt and damages. And
this, my lords, was the true course of it ; so it
stands upon these parts your lordships bare
heard. 1 am glad at last to hear Mr. Wrayn-
ham's Submission, and do humbly crave your
lordship's censure.

Sir Edward Coke. The cause before you,
my lord*, is a very great cause, for a man must
tread in this course upon a very slender bridge:
I will single out, as near as I can, the state of
the question, and then I will shew you in otheit,
upon what words, and in what 1 shall ground
my sentence: for a complaint to the king's ma-
jesty, or a petition by any man that thinks him-
self wronged, I hold that regularly to be so
offence. God forbid it should be so : I can
make no hedge between the sovereign and die
subject ; nay, in some kingdoms, ' Querelas
' subditoruni detrahere in principe deserentur
' cap i tale est :' And that would be derogation
from a monarch, that no subject should com-
plain unto him; yet upon the statute of West-
minster, and at common law, 1 make no ques-
tion, but to shew you, that where petitions were
made to the kins in an unfit manner, they have
been severely punished. Our case is now par-
ticularly in a sentence given bv my Lord Chan-
cellor, an eminent Judge in this Court, and a
side Judge in the highest Court of Equity that
is in this kingdom ; yea, this case is after sen-
tence, aud against the sentence, and with man?
such scandalous and opprobrious terms again!
so hi'/h a Judge; and that not in paper, but in
a book presented to the king : this book in my
hand, which me king hath delivered to the aN
torncy-eciicral, that it mi^hc come before ui
l»»r due punishment. Whether this Book be
justifiable , or no; that is the question.

It is a black Book, * K>t jam convenient
; luctibus i*te color/ And it is a strange Bonk
for some thing* that I will shew you, for it if
no petition; .*.nd yet I will confirm every word
I "»av by ancient and modern authorities;
w!.«rruf, 1 am vjrry. very sorry in good faith,
f.r the excel lent and worthy parts that are in
vou. Mr. Wrayn ham. Now mnrk your own
word? in your Book ; you call it a Review, er

1073] STATE TRIALS, 1 6 James I. 1 6 1 $.—for slandering Chancellor Bacon. [1074

Revivor of the Report of the Master of the
liolls, Phillips, and the Decree of my Lord
Chancellor : the High Commissioners have
sometimes a Commission of He view, hut it is
very rare : and tlint is a Commission of Grace,
not_of Right : such a Review is presented unto
his majesty hv Wraynham, in which lie deals
not like a petitioner, but like a c en surer, cen-
suring every man that deals in the cause.

Mark how the Common Law sets forth a
petitioner: it gives no ill words, it touched)
not men of injustice; for take this from me,
that what griet soever a man hath, ill words
work no good ; and learned counsel never use
i hem. And therefore the petitioner tit the
Common Law, is, ' Si phcet majestati,' &c.
' et quod justitia et rectum fiat,' &c. Ndw in
your Petition, see whether you have behaved
yourself well : first, you mate your major pro-
position; The unjust sentence of a Judge, is
far worse than a particular murder : then your
minor is, That my Lord Chancellor hath satis-
fled his majesty, that i have informed him
falsely ; but his majesty knoweth, that he that
judgeth unjustly, must, to maintain it, speak
untruly ; and that your lordships and all logi-
cians know, the conclusion followeth necessa-
rily.— First, he charge tb my Lord Chancellor
with injustice, not complaining of any parti-
cular to be referred to examination; but saith
in general, ' He hath done unjustly, and is
' worse than a murderer ; and that he hath in-
' formed the king falsely.'

My Lords ; You kuow, if a man put false
metal into the king's coin, it is treason; and if
my Lord Chancellor shall infuse poison and
false information into the king's ear, it was an
heinous offence. Yet this contents not Wrayn-
ham; but he flieth at all, saying, • That the
' height of authority maketh inen' presume.*
And hath a place of Scripture in iiis Book,

* Woe be to them that write wicked Decrees:'
and in another place he saith, * Oppression is

* palliated with wit and eloquence/ My Lords,
ought these things to be in a petitioner? A pe-
titioner must go meekly and humbly to work,
without shew of touch of any man.

I will not omit a dead man ; for, though
spoken of him, it is a living fault. As for this
Master of the Rolls, never man in England was
more excellent for the Chancery than that
man ; and for aught T heard, (that had reason
to hear something of him) I nerer heard him
taxed of corruption, being a man of excellent
dexterity, diligent, early in the morning, ready
to do justice: for iiim to be taxed in such a
high degree, as to omit some of the material
proofs, to shift off others, to wrest the'equity
«?f the cause, and such-like : and in another
place, * That the Master of the Rolls made an
4 unjust and corrupt gloss upon a false text,

* &rc/ And in another place, he saith, ' That
' sir Edward Phillips's report was raised ab »«-
4 ferno.'

My Lords ; You know that the slander of a
dead man is punishable in this court, as Lewis
Pickering is able to tell you, whom I caused

vol,. II.

here to be censured for a slander against an
Archbishop that is dead ; for justice lives,
though the party be dead : and such slanders
do wrong the living posterity and alliance of
the man deceased. But Mr. Wraynham spares
not the king himself; tor in one place of his
Book he saith, ( assurgat rex,' &c. as if the king
slept. And in another place h* saith, * That

* the Decree is reversed without precedent.'
But that is not so, as I will satisfy you anon.

For Mr. \V ray u ham's censure, I will never
judge a man without authority and reason :
18 E. 1, in Hotulo Parliament 3, my Lord-Ab-
bot there complained that Solomon of Wragg,
and Hugh Courtney then Chief-Justice, bad
confederated to give judgment against the
Abbot. And the king answered, * Shall we,
' upon this petition, call a judgment in ques-

* tion ?' And in the end, the answer is, ' Hex
1 rogabit, et aliter facere non potest per legem
' terra.' And my Lord-Abbot, because he was
a lord, escaped punishment at that time.

Another precedent I will shew you, is, Mich.
18 E. 3, Rot. 151, coram Rege, Thomas Wil-
hrahatn petitioned against the Justices of the
KingV bench, * That they had not done ac-
cording to law and reason.' And the petition
was delivered to the representative body of the
king and his council ; for the which the baid
Wilbraharo was indicted, convicted, fined, and
ransomed in the King's-beuch. — 19 Ass. p. 3,
Between sir William Scott and Humphrey
Hunncy, who complained to king Edw. 3.
' That sir William Scott, Chief-Justice, had

* awarded an assze contrary to law/ And the
king sent it to the Judges; whereupon Hunuey
was imprisoned, judged, fined, and ransomed:
yet he had no remedy hut in parliament.

The Statute hath made a sharp law against
such as speak scandalous news of the Chan-
cellor, justice of the King's-bcnch, &c. And
because divers were punished for slanders, in
petitions to his majesty ; therefore, 13 R. 2,
rot. pari. numb. 45, the commons desired they
might not be troubled for any matter that
should be contained in petitions to the king :
and the king answered, ' Let every man com-
plain, so it be with law and reason/

Wraynham objected a place of Scripture fur
himself, where the Psalmist saith, ( I have said
' in my fury, that all men are lyars/ ' The
text is, ' Dixi in excessu :' so Wraynham saith,
' ft was not in his fury, but in his excels.' — And
another thing that Wraynham offered in his
defence, was the king's words, where he saith,
in his Book, ' Be hold to complain.' But of
what? Of corruption? So likewise, in Rot.
Pari. 24 Edw. 3, pari. 3, numb. 16. ' If any
' man mix corruption with his censures, Ana*
' thema sit/ So . likewise it is extant in the
Rolls of the Parliament d& la plbe, that the
great de la Pole was convicted of bribery, and
put from his place ; and Cardinal Wolsey was
convicted of a foul corruption.

But if a man, according to sincerity, give
judgment, thouph he differ from another Judge,
this is no injustice. Famous Dyer gave judg,~
1 z

1075] STATE TRIALS, 16 James L 1618.— Proceeding* against Mr . Wraynkam, \YTtQ

vilege shall tlie king iny master have ? For if
this humour should take a litlle head, will it
not carry both him and justice into the 6eki?
And there lore I conclude, that tbis is severely
to be punished ; mid is not a petition, bat a
presumptuous challenge, and of so far a worse
nature beyond duels, as honour and universal
justice is beyond particular right : nnd there-
fore 1 agree with him that went before me,
leaving his good parts to mercy, and his ill
parts to the censure of Fourth's Case.

nicnt in the Common Pleas, ami this was re-
versed in the King's- Bench; yet he dUcharged
his conscience : and ah hough it was a tier wards
reversed, yet it was no mjuMice. 'Hie like in-
stance miiihi be made oi air Christ. Wrnv, and
others. Mow, in this en*:*, my Lord-Chan-
cellor that is living, diners from the Lord Chan-
cellor that is dead. This i* not at range, it hath
ever been, and ever will be; but if a judge'*
conscience be oiled and moistened with co;rup-
tion, then all is untight.

The king h.ith the Picas of the Crown, and
upou every Judgment one of the patties is
angry and displeased : but this must not pre-
sently produce a new hearing, \\,r that will
hinder all other busi.ioses. For I will put you
a great case bitween a nobleman here, and
divers other noblemen that wire trusted by the
countess of Southampton, who were ail Plain-
tiffs, and sir Movie Finch Defendant : and this
was iMi.h. 42 and 43 Eliz. The main point
that was controverted in the cau-e, was upon
an exception of a manor (as I remember) in
the habendum of the deed, which my lord-
chancellor then thought void. And therefore
decreed, * Tint my lady of Southampton should
' have all/ Whereupon sir Movie Finch peti-
tioned quern Elizabeth, that r»he should refer
the examination of the deciee to some of the
judge* ; but the queen would never refer any
thing to those that were named unto her, but
she referred it to two other judges not named
in the petition, who attended my lord-chan-
cellor; and they then resolved it against the
decree, and my lord reversed his own decree.

I know I have held your lnnUhips loic;
yet I cannot tell, in ihe>e critical day>, whe-
ther men will be satisfied, which hath made uic
longer than T would have l-e.n. Therefore,
to conclude, I agree, in all things, with the m-u-
teitcc given in Foortji'.s Case of 2 Jac.

Sir Fitlke Grerilie, Chancellor of the Exche-
quer. '1 his Court hath no intent to discourage
the meanest subject of his lawful appeal unto
his prince ; for that were to disinherit the peo-
ple of law, and the king of the intelligence of
the oppression that mijju fall upon his people.
Hut ibis case I suppose not to be within the
first. The matter in such cases, is but a re-

Lord Chief Laron, Sir Laurence Tanfield.
This cau.se is a came of a high nature, being a
scandal of a great ami principal officer of the
kingdom, and of one that is an high and emi-
nent person : which scandal is set forth in this
Book, which certainly I cannot call a petition:
for the petitioner hath presumed too far, that
it is a plain revise of a decree. Every man
knoweth, that the Chancellor hath the keeping
of the great-seal, whereby is managed mercy
and justice : and if this great person so trusted
shall be thus traduced by every offender, how
insutferable "ill this mischief be?

I doubt not but that by a right way, you
may, by a petition in an humble course, and
submissive manner, desire his majesty that be
would be pleaded to review a Sentence in
Chancery, or eUe grant a commission to other*
to review the same. But doth this man ob-
serve Litis course ? No, but he will be his own
judge, sentencing hit own cuu>e. I can call
this Book no better, than a scandalous and
malicious invective against the Lord Chan-
cellor ; and that not without gre" t bitternew,
as I have heard. First, he taxelh him witk
injustice: then mark the circumstances ; he
saith, " My Lord Chancellor hath reversed tbe
' Decree, without, cause, without new matter,
' without legal proceeding, without precedent,
' and upon a bare suggestion. ' Then he goeth
further, sayii g, ' Injustice it worse than mnr-
* der ; for this Decree hath devoured him and
1 his whole family/ And, lint content witk
this, chargcth him with oppression, and palliat-
ing it with greatness wit, and eloquence; than
which, a greater and heavier scandal cannot be!
You shall not be barred of access to his ma-
jesty; but that by a petition you may desire
to have a Decree reviewed, and that his ma-

view of an inferior sentence of a superior ma-
gistrate, my Lord Chancellor of England : and jesty would grant a commission to review it
that before he be heard, makiug the king his But these things must he done legally, and

speedy executioner.

But examine the nature of these accusations,
and you shtdl find them mere scandals, and im-
possibilities ; as breaking decrees, rewarding
frauds and perjuries, palliating oppression?
with greatness, wit, and « loquvnee. Why, my
lords, if this liberty should spread, then I desire
the inriillercnt hearers to see in what a mise-
rable esse the*uljcct stand:?, when the rigfit of
cwry good man shall stand in the malignity,
and unquiet nature of every turbulent spirit?
And, my lords the judges, in what a case stand
they, it by such clamours every delinquent
shall la* m ide ;u(\*c over then ? and what prir

then the law protects us, though it be against •
nobleman. .Sir Kichurd Crofts did sue an ac-
tion for foi^ciy of falM* deeds against the lord
Bcuuehamp ; whereupon my lord Bcaucbamp
sued uu action upon the statute de Scand.
Magna t. But that would bear no action, be-
cause it «■ as done legally: for a man may sup-
pose in hi* writ such a fact, by the use of the
said writ ; but he mu*>t beware that he pmvesi
well, or i«Ue he shall be well fined in the same
court. But much more shall he deserve a fine,
if he shall do it without writ, or without ground
or proof, as W ray n ham hath done. And there-
fore, because I must be short, I think ■»

1077] STATE TRIALS, 16 James I. 1618.— /or slandering Chancellor Bacon. [107$

fully worthy of the censure before given, in all
points.

Lord Hobart, Chief Justice of the Common
Pleas. Mr. Attorney hath very worthily and
like himself, according to his place, brough:
this man into this court, to give answer for the -
greatest and most outrageous offence that of
this kind hath been committed ; in which case,
I will first tell you, what I do not question,
and then what 1 do question.

For the first, Petitions may be exhibited lo
<he king without controversy; nay, in some
cases they must be exhibited ; »nd God fur-
bid, that any man's way should be locked up,
tit that any subject should be barred of access
to his majesty ; fur when appeals fail, and « hen
ordinary remedy is wanting, so that there is no
judge above die highest judge; yet, you may
still resort unto your sovereign fir extreme re-
medy : this is proper to a king, * Cessns reg-
nare, si cessas judicare ;' for ic is aa inherent
quality to his crown. So that without con-
troversy a man may petition against a sentence ;
for God forbid, that we that are judges, should
draw that privilege to otirsilves, to give sen-
tence, and not to hear it examined. But it is
true, it must be pre.-cnted as a supplication,
and you must go formally to work : ordinarily
you' must go to the proper courts of justice ; if
that fails, the extraordinary course is open by
the king : and this is no mure than to shew to his
majesty, how you find yourself grieved, and then
remit the cause and form (o the king's wisdom.

Bat now see what this man hath done, he
iiath made neither the matter nor form of a
J>etition. First, for matter, he pretends, that
is not saying that my lord-chancellor hath ex-
pressly infringed two decrees, when he hath"'
done nothing, only crossed an order, than
which, there is nothing more common, for they
are but interlocutory, and not definitive. — And
for form, this is no petition, no book, ns he
would call it, but an express, peremptory and
audacious libel. Then the manner offends yet
more : for whereas a supplication imports, that
a man should speak it upon his knees, for as it
is in some reahnes, men attempt nothing against
Jaw, but they must do it with a rope about
their necks : so that he that goeth about to
attempt any thing against a decree, he doth it
with a rope of (he king's censure about his
neck: but mark the carri:i£C of this man, how
insolently he proceeds in tics case!

First, for the king, as lialh heeu well observ-
ed, he saith, * assurgat Hex ;' as if he should
bid the king arise and take revenue.

Therefore for the Decree, he snith, that the
foundation of it came from hell: iftlnit he so,
then this sentence inu*t needs be helii>h, when
he falls upon a poor man, the mnstt r of the
rolls : T call him poor man, because he is not
living to answer lor himself, but yet he was a
worthy minister of justice, (for I had much
cause »to know him) and he was of as much
dexterity and integrity, as ever man that *at iu
his place, and I believe the chancery will find
want of such a man. But not content with

this, he scorns my lord-chancellor's courtesies,
and carries himself, as if he would trample ail
under foot.

So much for the manner : as for the matter,
it is odious : the person with whom he hath to
do, is the principal officer and magistrate of
justice in the kingdom, one that hath the comi-
nntion of all the justices of peace, uud the
principal that names all the sheriff: one that
keeps and carries the teal, and sits chief jud^e
in this court, and sole judge in the chancery. —
And shall we think that tins man is bought and
sold to corruption, t» injustice, t(» muider?
What more tends* to the king's dishonour, than
that he should place in the judicature such an
unworthy man? a man infinitely the more
wronged, because he deserves his place, as
well as any man tint went before him: and
yet his last predecessor was very excellent, and
deserved no small commendations. Hut
Wraynham I condemn, as a man barbarous
both toward, the living and the dead : where-
fore, there is a justice and tribute due to the
master of the rolls deceased. I would have
mention made of it in the decree, and with
that addition to the sentence, 1 concur in all
things with the president of the couit.

Sir Edward Mountague, Lord Chief- Justice.
My lords, it is a true saying, * Judicium Hon
' redditur nisi in imitum.' For 1 yet never
saw any man sit down satisfied with u sentence
that went against him. I would not so far
have blamed Wraynham as to have censured
him for compla'ning to the king: yet this re-
straint I find in law, which any inun may see
in kin<r Edgar's law. " Let no man complain
to the King iu matters of variance, except he
connot have right at home, or that right be too
heavy for him. Theu let him complain to the
king." Whereby it is meant, that if the laws
he so strict, he shall complain in a court of
equity to the king himself. Then, to complain
is not denied to any man, for all justice caxnes
from the king, and though he distribute his jus-
tice to be ministered in several courts, yet the
primitive power resides still in his person.
Therefore, to the justice of his majesty may
any subject have resort : but this must be hum-
bly as a petitioner, not as Mr. Wraynham hath
done here, who U not a suitor, but a censurer :
and doth not complain, but proudly rails upon
a high judge.

Can you, Mr. Wraynham, charge your
judge with corruption, through fear or affec-
tion ? (for I make them b<>th alike ;) Spare not
the chief judge nor highest counsellor : I say,
spare us not, whenever you can take us. But
a judgment is pronounced from the sincerity of
our consciences, and warranted by our judg-
ment and learning: shall we then undergo urn
censure of every suitor f No state, at no time,
ever suffered this. — My lords, it lies upon OS
Judges as a duty* to restrain this boldness : our
places as Judges, give us no privilege to do
what we list, nor have suitors liberty to speak
as they list of judges ; God, and order, hath set
bounds to both.

1079] STATE TRIALS, 16 James I. 1 6 I s.—Procecdmgi against Mr. Wraynkam, [1080

For the matter heretofore handled in the
Chancery, it is not a work of this day to
deol with that ; we meddle not with your
Decrees, we censure you only for your scan-
dals. I saw in your Book a smooth pen,
and from your tongue I have heard fair
speeches; but in hoih I see a fiery spirit. For
you would raise up dissentinn between the two
Lord- Keep < rs of the king's conscience, him
that now is, and him that was, and now is,
with God. of these two worthies I shall
not say much ; I will neither wrung the
dead, nor flatter the living. The matter of
difference, for any thing I can see, or you can
say, is but an order against an order, wherein
judgment may he varied by occasions, and
through circumstances : true attributes are no
flatteries. This honour let me give to these
two great men : of greater parts, better fitted
for that place, never sat in this plr.ee : nay, a
man may truly say, that the world hath scarce
yielded two such men of so excellent gilt*, in
this latter n<>c of the world.

But you, Mr. Wraynham, wronged both the
living and the dead. Of the Master of the
Rolls, that is dead, you spake your pleasure :
but all that hear you, and know him, will be
ready to give you the lye. You say that lie
should omit some of the proofs, and wrest other-
some, and ground himself upon witnesses that
swore impossibilities, and absurdities, &c.
Whoever knew that man, knows dim to be n
true reporter, and a judicious collector upon
proofs, as ever was. I will not dissemble what
others thought a fault in him, to be over-swift
in judging : but this was the error of his greater
experience, and riper judgment, than of hers had.

Now, for my Lord-Chancellor, by the words
you use, yon lay four of the greatest crimes
upon hiin, that can be laid upon a judge : Pre-
sumption, Oppression, Fal&ity, and Injustice :
all these you utter, with one breath, charging
him with all in one sentence: for you say,
' Height of authority makes great men presume :'
there is presumption and oppression. And in
these words, * lie that judges unju>tlv, must, to
4 maintain it, speak untruly :' there you accuse
him of falsity and injustice. * Ex ore tuo te
' judico, serve nequam.' For in your book you
say, * Let me sutTer as a traitor, if all thai I say

* prove not an entire truth, if I should dare to

* slander so great a judge to so wise a king.'
Therefore, out of your own mouth I pronounce
sentence against you, U\a inajest-.th : and
though not as a train r, yet as a great scauda-
lizer. Ami if all wt-ie true that is .said in y ur
book, yet would 1 censu.e you for your quarrel
with iiiv Lord-Chancellor for form; and yet
yourself ine no lorn;, no, not common civility.
So that if it were again>t a common man, it
were punishable, to offer such words to the rye
of a King, a-» here you gi*e to my Lord-
Chancellor, calling him a rewarder of frauds
and perjuries un adherer of the afflicted, a
rackcr of things nut of joint, a contbunder of
votu estate, and tiie like.

These are not words fitting s> Petitiofter* 10

be spoken of a Lord-Chancellor, to be offered
to a king. And, my Lords, this man's fault
goeth one step higher, touching the person of
majesty itself. I am a judge of crown-matters;
and in this libel, I think he hath scandalized
the king in four things: First, he saith, * The

* king is but a man, and so may err ;' implying
an error in the king. Secondly, ' That mj

* Lord-Chancellor defends himself by secret
' means, and that you are not called to answer.'
Than w Inch, what greater tax unto so high a
majesty, to condemn and not to bear ! Thirdly,
' That my Lord-Chancellor doth cover his in-
' justice with wit and eloquence.' When we all
know, that we have a sovereign of those high
and excellent gifts, that it is not rhetorick, or
eloquence, that can'cast dost in the king's eve*,
or cause him any ways to turn aside from justice.
Lastly, you say, '/lhat a man may distaste
' truth, and suspect judgment ;' applying it unto
his majesty. Which otfenees reaching so high,
my censure shall be the heavier upon you.

Now it will rest, uhut shall be done with this
man ? As I give my sentence from his own
mouth, so I will take adtice from himself; he
saith, ' State super viis antiquis/ Look what
our ancestors have done of old, so let us do.
In this then, you shall see what they did in like
cases. — Mich. 13. of the queen, Rot. 39. Henry
Blaunsford, a counsellor at law, was committed
to the Fleet, and fined for false lepoiting the
opinion of the lord Leicester, and secretary
Cecil, with these words, ' Humanum est errare.*

So likewise, 19 Hen. 8. my lord Stourton was
committed by the court, and tined, for saving
these words, ' I am sorry to see rhetorick rule
4 where law should.' — Sir Kow land Flawing was
committed, and fined, for leportiugto (belting,
' That he could have no inditferency before the

* lords of the council :* For whit h he was deepl?
fined, 7 Feb. 18 H. 8. — So likewise, in the tune
of lieu. 7. sir 11. Ttrres was committed, fiutd,
sent to the pillory, and adjudged to lose both
his ears lor his s];mderou> complaint exhibited
to the king in a written Hook ; and thatagiiust
the chief-justice Fitz-James : the punishment
of him that depraved the good judge sir James
Dver, is fresh in memory.- So that party which
said judge Catlyne wa> an unjust judge. 8 Hiz.
Hot. 10. w'iosc name was 'lhoinas Welch, of
London, who was indicted in the hi oVUcnch
for thi> as for an off« net «igau^t the coinmon-
luw. His words that wen* del \ered, Mere
these: • My L nd-Chitf-Ju^ice Catlyne is u>
4 cuistd a.aniM me, I cannot haw jusuc , .k*
' can be hoard ; lor lhat court now i« ■!:..■,.. *
'court of conscience.' J h.s Iiick na^'ic .<*»
found, and the record wm», tha« it >\..- * i.« niij^

* num co..uui|>t Dominie Rt^n.;e at cur* stnr,
' ac in m ign' scandalo^*, ac 'unom.ri u lejt*
' Anuliae , ac in scan da um chj t li> lust, ac iu
' malum cxcniplum oi. n :u. .M.bdit* ium.'

So it is that this otUute of Wruynlwm's is
against the law, the commonwealth, and the
justice of the kiiuedom : and therefore, accofd-
*— *q tl . and mkk *

10S1] STATE TRIADS, 10 James I. UUS.—for. slandering Chancellor Bacon. [1062

I concur and pronounce the same against
Wraynhacn in ail things. And this right 1 would
have done to die Lord-Chancellor living, the
Lord-Chancellor and Master of the Holts that
are dead, that those things he fitly expressed to
their honour*, in the drawing up of the decree.
Sir Thomas Lake, Principal Secretary. My
Lords, If I had been the first that hud spoken
in this case, I should have thought it the greatest
difficulty how to walk evenly between the not
discouraging the kings subjects, and in judging
the prisoner at the bar. But for that, iny lords
before me have so well spoken, that no man
may be discouraged to come to his majesty in a
discreet manner : And Very good learning hath
been delivered by all my lords the judges, such
as may satisfy every man ; yea, and not sati»ry
only, bat direct them what to do in such cases :
therefore I may be the shorter. — I will not he
long in speaking oi the honour due unto magis-
trates; he that wades into that, shall have little
of his own invention ; nor of the otience that is
now before us; for the king's counsel hath so
fully and perfectly delivered it, that perhaps by
this time, he knows his own error. And my
lords the Judges have made it appear so, where-
by 1 think it as great mi offence, as ever was in
this nature ; and much more deserveth punish-
ment, because it is against a man no le*s. emi-
nent in virtue, than in place. Three things the
prisoner ur^cth for himself. First, tor the word
injustice, he saith, ' That admitting the thing
* were unjust, then he might cull it unjust.* But
I answer, for a private man to call a public
sentence, Injustice, herein he sheweth his error.
Secondly, He urgeth, that it cnuseth a great
Jo*> unto hun, and therefore he would he the
rather excused. — It. is true, I think, that men,
by sentence, hate lost, for ' Judicium redditur
' in i ivitum :' but though it he a loss, it is
'Damnum absque injuria.* Thirdly, He went
th<; wiser way, when he un>eth commiseration
unto us. For my own part, I could commiserate
the man, but 1 ctimmUeiate the Commonwealth
much more; for if this should be suffered,
tumults, and a multitude of other iuconvenien-
cies, would arise. And therefore 1 judge him
as th" rt-st have done before me.

Sir Henry Cart/, Comptroller. My lords
before me have spoken so much, that I shall
not net' J to speak, neillier do 1 make any scru-
ple of the said seiuence. When 1 consider how
foully this in^u hath hehaved himself, in scan-
dal and invectives against so high a magistrate,
I must concur with the rest of die lords that
have gone before me.

Bishop of JE/y, (Dr. Launcelnt Andrews.)
1hougn the ground of the complaint had been
just, yet I believe my lords the judges, that the
complaint being in so foul a manner, against so
great a person, in so high a place, deserves
9harp punishment : and therefore I agree with
the former sentence.

Bishop of London, (Dr. John King.) I shall
borrow a p rase of him, though spoke to ano-
ther purpose : ' That in a senate, wnerc many
f assistants were, after two or three have well

' spoken, and well agitated a cause, there is
* required nothing of the rest, but their assent/
It is a worthy saying, but when I find here be-
fore me an honourable person foully and de-
spightfully spoke against, being one of the three
vital parts of this rourr, and without which 'it
cannot have its subsistence ; and of the three
vital pares, the principal, and also a judge of
another court ; and (as I learned of my lords
the Judges) of such a temporal court, where if
the edge of the law be too keen, the equity of
the Chancery doth abate it : — In regard of this
duty, it hecupieth me to speak, and because the
party wronged is a great counsellor and otticer
of the state :

The first tiling I say and lay hold of, is this,
interest reipubtice, it stands not with the ho-
nour of the king, with the safety and peace of
the kingdom, nor with the quiet of his majesty,
that counsellors of state, and judges in the seat
of justice and conscience, should be depraved,
' anima et vita regnorum auihoritas,' take it
away from the magistrate of state, take ic
away from the king himself, ' et suhversa jacet
1 pnstiu'a sedes soliorum.' For the place where-
in this honourable person sits, is great between
blood and blood, plea and plea, plague and
plague, for the Judge shall end the controversy.
— .V> that the first lesson which I shall make,
is that which Cambyses made to another, ' me-
' mento ex quo loco/ they sit in God's seat,
and execute his, and not their own judgments :
it is their art, their faculty, their profession,
their learning to judge, and it is not open te
every man, but it is ' peregrina et unusquisque

* in arte sua anifex;' and therefore, for mine
own part, I shall ever bend the best of my
thoughts, the favourable^ of my wishes, and
the most of my prayers, that sitting in seats as
they do, they may judge »»s they ought. I know,
that while they carry flesh about them, their
faculties and judgments will be imperfect; they
are hut men, ' ttscientia juris iunuita:* so that
I know not (amongst the number of mortal
wights) that man that can conceive every par-
ticularity'of the law.

No marvel then, if one Judge differ from
another, when the same man diners from him-
self; ' Socrates puer ditfert a Socrate seiic.'
And though the Judges walk not in the same
w ay, they tend to the same end ; and though
there he not idem cursus, yet there is the same,

* idem port us, et non mutant, sed aptant legem/
according as the matter comes before them is
varied, shaped, and fashioned.

It is unreasonable then to complain of a
Judge, or unusual to go to the king with com-
pl.tints ; nay, it must be done with ' calaoio et

* atramentu temperato;' and it must be done,
4 li hello supplici, non famoso,' not as a syco-
phant and slanderer, hut as a supplicant with. a
petition ; not with a petulant invective decJa*
ratjoti against a person of so great and honour*
ahlc a place. This is a fact so unnatural, and
unlawful, that all laws are broke both of God
and nations, and civility, and good manners,
and all : ntty, I know not how the laws of speech

10SS] STATE TRIALS, 16 James I. 16}S.— Proceedings *gai*H Mr. ffraynham. [MB*

are kept, they are but three, quid, de quo, cui-
que9 the matter foul, spoken of so honourable
a person, and to so transcendant a magistrate.

VVraynham is a man, that did not only curse
in the bitterness of his soul, but he comes ' in
' amaritudine linguae et charfte.' It is not tit,
God gives not blessing to these hist rices and
porcupine quills : it shoots fur, it enters deep,
it wounds sore, it is not to be tolerated ! Let
him keep his poison in his surmntico and in-
vective Book. Wherein, let me add tor my
lost, the manuer of presenting it, the writing it-
aelf ; and then withal the defence now made,
which, when I heard it, I was more offended
than with the Book itself; and 1 may justly
make a question, whether he were more foolish
in writing it, or more vain in defending it ? His
defence is a two-fold necessity : first, a neces-
sity to induce the king to hear him ; like Absa-
lom, that would needs set Tobias's fields on
fire, to get his ear. The other, n necessity of
estate, proceeding out of the laws of necessity ;
* Gravissimi sunt morsus irritataj necessitatis/
One part of speech was general ; in that he
meant not my Lord Chancellor : hut in the ge-
neral there is a major, and in the particular
there is the application ; and then every m.*m
can make the conclusion, as huth been well ob-
served by sir Edward Coke. — You arc a man
of a private and profane spirit, and if you know
not of what spirit you are, I can teach you ; 1
say, of that spirit, that you compare yourself
with apostles and prophets, and you misapply
scripture; your' dixiin excessuettrepidatione,'
sheweth a difference between sinning upon pas-
sion, and deliberation. It comes fully home
into your own bosom, ' et pulchrum patet gut-
' tur in ore.' The best pai t of this answer, was
the last, and I would it had been all in all ; and
so I agree with the Sentence given before me.

Viscount WultingJ'ord. I am sorry a man
should deserve so great a censure as this man's
foul fault will make; yet I am very glad in this
bold and quick-S'ghted age, that other men, by
his examole, may take heed not to exceed the
bounds of mtidcbty. This humour, it seemeth
•elf-love (which believes nothing but itself) hath
begot that, that limit bred this gentleman up so
unmannerly, that he spares not to accuse the
highest and greatest judge of the kingdom, of
Oppression, injustice, murder, nay, of any thing;
which is not only spoken by so ill a tongue, but
aggravated by his answer. — For it seems, he
would encourage other men by the kind's Book
to do the like, wherein we may see the malice
of this man, that will get poison from the fairest
flower; yet every subject may take comfort in
his majesty's Book, and (rod forbid, tint he
which is wronged, should be res* ruined to com-
plain to his sovereign ; yi f, thi« complaint is no
petition, but u tery libel, and deserves no better
name. — The king's will is, that vou should l>e
bold, and that you should come to him ; but
♦et yon must be sure, that your cause must be
just and right. This is u good and uracions
speech of a king; but it is pity Mr. Wraytiham
attodsjt* scripture to maintain an ill cause : and

I do clear my Lord Chancellor dead, and alive,
to be as worthy men as' any in my time, and
yet I have lived a long age ; and God forbid
tin ir consciences should be led by private men's
humours. — I say no more, but let every man
that henrs us this day, tuke heed, thut their hu-
mours lead them not into these outrageous
course-, but carry themselves with modesty. I
shall not need to enlarge, but consent with my
lords before me.

Earl of Arundel. I shall not need to use
many words for the matter ; in brief, Wrayn-
ham hath forgot himself fully against a great
and high instrument of justice, renewing com-
plaints upon complaints ; after the king had
told him in my hearing, that the Lord Chan-
cellor had done justly, as he himself would have
done ; and therefore I think him verv much to
blame, and well deserving the censure given.
And the use is, as you see' by him, for malicious
men not to suck honey, but venom and poison
out of the wholesome flowers; as hi) presump-
tion is to be hated, so his humiliation and sub-
mission is to be pitied ; yet I agree with my
lords in all things.

Pembroke, Lord Chamberlain. No msn*s
mouth is so stopped, but in case of grief be
may seek redress. I think there is little scruple,
that either the Master of the Rolls that is dead,
or this Lord Chancellor that is living, did pro-
ceed without justice; because it is but aa
order against an order, a thing very frequent
and usual in this, and in all other arbitrary
courts. For the sentence, I agree with the
court, being sorry, since his last submission
was humble, that before he hath abused this
good part, and used his wit to his own confu-
sion.

Duke of Lcnor. I am sorry that Wraynham
hath not the grace of God to make nse of bis
majesty's Book, which is not to complain
withotit just cause ; and without he could make
proof of his complaint. 1 will not repeat the
worth of my Lord Chancellor living, or dead r
but I am sorry that a man of so great parts
should deserve so heavy a sentence; vt hereunto
in all things I agree.

Worcester, Lord Privy-Seal. My lords, I
am of opinion, as formerly my lords have been;
I do hold this a very scandalous libel, being
against a person of such worth ; the greater
the person is, the more severe should the pun-
ishment be for the offender: and so I concur
in opinion with iny lords before me, and do
think this offence to have exceeded his punish-
ment; and therefore if a great line had been
laid upon him, I should have agreed unto it.

Ahhot, Lord Archbishop of Canterbury. The
Lord, the Fountain of Wisdom, hath set thi*
glorious work of the world in the order nod
beauty wherein it stands, and hath appointed
princes, magistrates, and judges ti. hear the
causes of the people, not so much out of au-
thority, as out of justice and reason : for if do
such persons were to hear and determine other
men's causes, every man must be his own
judge, which wontd tend to nothing but raw

10*5]

STATE TRIALS, 17 James L 1019— 11* Case qf William*.

[1066

•nd preposterous confusion : God therefore, in |
Lis wisdom, ordered and ordained their bound*, i
in die magistrate on the one side with instruc-
tion, and the subject on the other side with
protection ; which instruction when he shewed
diem, the king's throne is upheld by justice :
and David was commauded to rule his people
with justice and judgment ; and tbe like com-
mandment is given to others in subordinate
places, not to pity the person of the poor, nor
to stand in awe of the face of the mightiest,
but to weigh the simplicity and integrity of
conscience. For mark the example of the
most holy and reverend judges, Moses, Samuel,
and the rest, to whom their greatest comfort
was, that they could say, ' Whose ox or ass

• have I takeu ? From whom have I received a

* reward ?' And hy the course of piety and di-
vinity, we that sit sometimes to judge others,
are at another time to stand at an higher bar,
to receive judgment from heaven. — With the
great grace, and benefit of protection, God
cull* them by his own uanie, God's children of
die highest ; God being present amongst them
to direct them, and defend them ; God stand-
eth in the congregation of princes, he is
amongst all the people : thou thalt not detract
nor slander the judge, nor speak evil of the
princes of the people. And in two several
epistles, both in Piter and in Jude, it in said,
' That in die latter days there sliall be wicked
' men, that shall t>peak evil of magistrates, and
' men of authority, blaspheming them ;' us if it
we/e blasphemy, though not against God, yet
against those that are the image of so great a
God. — And therefore, since Wravnhara hath
blasphemed, spoken evil, and slandered a chief
magistrate as any in the kingdom ; it remain-
eth, that in honour to God, and in duty and
justice to die king and kingdom, that he should

receive severe punishment ; for it is his cause
to-day, und it may be ours every day : and
have not some, tor justice sake, been enforced
to etidure the threatening of (heir heads?
Wherefore, if greater punishment had been
given him, I should have absented ; for justice
belongeth to us, hut mercy to cur gracious so-
vereign. Where to re I agree in all things with
the senieuce before given.

Suffolk, Lord Treasurer. I perceive, as the
priyuier at the bar una churged at first, that lie
hail foully otVended, and- ought to have yielded
himself at the first, und not to h.ive made his
oflence greater, by defendh.ga had tauj-e. My
lords who h«\t lu-aid his fault in part laid out,
and censured him, 1 think thc-yliave done very
worthily. For the party himself, I would I
could come to him with a little better charity
than 1 can, for his ansu ?r did more displease
roe, than his censure ; for I see his spleen and
his humour grows, rather to defame a worthy
innu, than t«t free himself, how unjustly, I ap-
peal to the whole world; who came to his
place with us much satisfaction to all hearts,
and applause, with as good carriage as any man
I ever heard c;imc before him. — The thing that
I would conclude with, is, that I would be tilhd
that all that hear us might take us aright that
arc judges ; « e desire not to be for born by
any subject's tongue, that hath cause to com-

filain : and therefore do it not for any pnrticu-
ar respect to ourselves, hut for the public
course of ju-aire, i:n<l for the care we have of
the public good, and ibr nothii.:* else. — For the
fault itself, it harh been so well opened by all
the lords, that I will spare to hold you longer
in speaking of it. And for the sentence, I
think it very fit and just : and therefore agree
with the rebt.

1

114. The Case of Williams, of
17 James I. a. d. 1619.

^WILLIAMS, a Papist and barrister of the
Middle Temple, but expelled seven years ago
for bis religion, wqs indicted for High Treason
for the writing of two books, one called " Ba-
laam's Ass/' and the other was called " Specu-
lum ItegaUf*' in which he took upon himself
the office of a prophet, and affirms that the
king which now is, will die in tlte year oC our
Lorn 16521, which opinion was grounded upon
the prophecy of Daniel, where that j.rophet
Speaks of a time and times and half a time,
[Dan. ch. 7, v. 25. ch. 13, v. 7.1 und then An-
tichrist shall be revealed until the end of the
world, viz. five year* and a half before the end
of the world, which contradicts the popish opi-
nion of Williams ; and William* holds that the
time in which Antichrist shall be revealed, is
the time in which sin shall be at the hi<zlicbl%
ami then tha end is ni^h, hut such is. our time,
fin is now at the highest, ergo, &c. And ne
also says, that this land is the abomination of

Essex, for Treason : B. K. Easter,
[2 Rolle's Reports, p. 8S.]

desolation mentioned in Daniel, [In king
James's truncation, the phrase in Dnriel r*,
" die abomination that maketh desolate;*' >ce
chap. 1 1, v. li\. ch. 12, v. 11, vet it i« quoted,
in the same tiun-Ltioii of the Now Testament,
from Daniel in the words " abomination of
desolation." Soc Matthew ch. 24, v. 15.
Mark ch. 10, v. 14.] and that it is full fraught
with desolation, :umI that it is a habitation of
devils, and the Ai.timark of Christ's Church;
and u|x>n tl-tso and ihmiiv other *»uch opinions
contained in his book,' nil the court clearly
agreed that he was Guilty of High Treason,
and this by the common law, for these words
import die end atid destruction of the king and
bis realm, and that Artichristioni«in and false
religion is here nmiiiraiiied, which is a motive
to the prople to commit treasons, rebellions,
tiw. for, by Mount ague, treason is defined to
be crimen lirx/r wttiestati*, and how can the
king be more hurt than by the branching and

1067] STATE TRIALS, 18 James 1. \6iO.—lhvcceditig$ agazntt Lord Bacon, [1069

buzzing of such opinions in the ears and hearts
of the people, being his subjects, and Glanvil
defines treason to be, viz. qui uliquid much*-
nantur in nee em regis, see 25 E. 3. — But Wil-
liams for himself objects, that what he did and
wrote, was not out of anj malicious or disloyal
henrt towards the king, but proceeded out of
his love, and that he intended this as a caveat
and admonition, whereby the king should avoid
these mischiefs which were very like for to
happen to him, which appears many timrs in
his book, as he says, tor when he has declared
the judgment and destruction, &c. he concludes
the sentence thus, viz. (which God avert) or
such like words. 2. This matter rests only in
opinion and thought, and it was not carried to
auy overt act in execution, for no rebellion,
treason, or other mischief ensued upon it. 3.
He inclosed his Book in a box sealed up, and
so secretly conveyed it to the king, and never
published it. — As to 'he first objection, the
court answer, that no respect shall be paid to
the good intention of a man, when his words
and actions appear to the contrary, and when
a man had talked treason in the previous part
of a sentence, he cannot qualify it by * God
save the king.' As to Uie second objection,
nowbeit rebellion, treason, &c. did not ensue
upon it, yet Doddridge said that the rule is in
atrvcioriiut delict is, punitur affect ut, licet non
scquatur effectus ; for if an attempt be made
to imprison the king, albeit his death is not in-
tended, still this is high treason, for it is the
means by which his death may ensue, and this
was the case as Mountague said of king £. 2. *

•*■

* As to this, see Ludcrs on die Law of
High Treason, in the article of levying war, 77 ;

and he cited sir Nicholas Throgmorton's Case
in Dyer, • where was only a conference
concerning the death of the qoeeo, and it did
not take effect, and still it was resolved to be
high treason, and it cannot be said in this case
that this matter rests in thought, since it is re-
duced to writing, for scribere est ngere, f and
if words can amount to treason, (as clearly they
may) a fortiori when they are reduced to writ-
ingj and although they were never spoken, still
it now appears that his intent was treasonable;
and therefore, as to the third objection, it was
clearly agreed that although thK> Book was inclos-
ed in a box sealed or in his study, still because
by this act his intent appears, therefore it is
high treason, and Yelverton, the king's Attor-
ney, said, that at common law there be four
manners of treason*, 1. Rebellion. 2. To deny
the king's title and power, temporal or spiri-
tual. 3. To advance and maintain superior
power to the king. 4. In bearing his subjects
in hand that the king's government is errone-
ous heretical, and unjust, whereby the manner
of his government is impeached, and called in
question ; which Doddridge affirmed,' and said
that these are undeniable maxims.

and Mr. St. John's Argument in lord Strafford's
case, (infra) as there quoted.

* There is a very short note of the point
in Dyer's Rep. 98. b. pi. 56. The case at large
is inserted in this Collection, vol. 1, p. 869.

f Concerning words and writings as overt
acts of treason, see East's Pleas of the Crown,
ch. 2, s. 55, 56, and the cases and other autho-
rities there referred to. In this Collection set
the cases of Algernon Sidney, a. d. 1683. Sir
John Tenwick, a. d. 1696.

115. Proceedings in Parliament against Francis Bacon Lord Ve-
rulam, Viscount St. Albans, Lord Chancellor of England, upon
an Impeachment for Bribery and Corruption in the Execution
of his Office: And also against Dr. Theophilus Field,
Bishop of Llandaff, &c. 18 & 19 James, a. d. 1620. [1 Com-
mons' Journals, 554. 3 Lords' Journals, 53. 1 Cobb. Pari.
Hist. 1208.]

PROCEEDINGS IN THE HOUSE OF COMMONS.

March 15, 1620.
oIR Robert Phillips reports from the Coin-

so endued with all parts, both of natore and
ar< , as that I wilt say no more of him ; being
not able to say enough. 2. The Matter al*
lodged, is Corruption. 3. The Persons by

mil tee appointed to enquire into Abuses in the i whom this is presented to us, are two, viz.

Courts of .fust ice, viz

" I am commanded from the said Committee
to render an account of so«ne Abuses in the
Courts of Justice, which have been presented
unto us. In that which I shall deliver, are
three parts. First, The Person a^uiusi whom
dledged.

i Awhrey and Egerton. Awbrey's Petition
faith, that he having a Cause depending before
the Lord Chancellor, and being tired by de-
lays, was advised by some that are near my lord,
to q t> icken the way by more than ord inarymean s,
viz. by presenting my lord with 100/. The
poor gentleman not able by any means to
eoine to his wisbed-for port, struck sat) at th»,

it is a Hedged. Secondly, The Matter alledged.
Thirdly* The Opinion of the Coinmittc e.

1. The Person against whom it is alledged, , and made a shift to get an 100/. from the
is no less than the Lord Chancellor, [Francis usurer; and having got it, went with sir George
lord Verulam, viscount St. Albans,] a man Hastings and Mr. Jenkins to Grays-Inn : and

1069] STATE TRIALS, IS James I. 1620.— f<* Bribay and Corruption. [1090

teing come to my lord's bouse, they took the
noney of him, aud carried it in to my lord
Chancellor, and came out to him again, saying,
uy lord mas thankful, and assured him of good
uccess in his business. Sir George Hastings
icknowledgeth the giving of advice, and car-
ying in of the money to my lord, and saiih he
presented it to my lord as from himself, and
lot from Awbrey.

" This is all confirmed by divers Letters, but
t wrought not the effect which the gentlemen
iipected; for notwithstanding this, he was still
leJayed. Egerton shewed), that he desiring to
irocure my lord's favour, was persuaded by sir
5eorge if as tings and sir Richard Young, to
reseat my lord with a sum of money. Before
bis advice, he had given a present of 52/. and
rid shillings in plate, as a testimony of his love ;
Nit is doubtful whether before his calling to the
•6*1, or since : but now by mortgaging his
state he got up 400/. and sends for sir George
listings and sir Richard Young, desires their
issistance in presenting this money, and told
hem how much it was. They took it and car-
ied it to my Lord Chancellor as a gratuity from
lie gentleman ; for that my lord (when he was
Attorney) stood by him. My lord (as they say)
torted at first, saying it was too much, he
rould not take it ; but at length was persuad-
ed, because it was for favours past, and took it,
ind the gentleman returned him thanks; saying
bat their lord said, that he did not only enrich
lim, but laid a tie on him to assist him in all
ust and lawful business. Sir George Hastings,
uid sir itichard Young, acknowledged the re-
reiving and' delivery of the purse ; but said they
toew not what was in it. Then a question
iras proposed, Whether there were any suit de-
>eudiiig during those offerings, either in the
Jbancery or the Star-chamber; but there was
10 certain Evidence of it. Thus you see Cor-
up lion laid to the charge of a Judge too, a
great judge; nay, to the great keeper of the
ting's conscience.

u Another point came in by«the-bye, shew-
ng that some indirect means are sometimes
>pen (I fear too often) to the courts of justice,

u It concerns no less a man than a divine.
who is now a bishop,* but then called Dr.

* He was made bishop of Landatf 10*19.
llis share in this transaction does not seem to
dmve impeded his preferment, lie was trans-
lated to St. David's 1637, and to Hereford 1635.
lie died 1636. Some of Howell's letters are
Addressed to him. The fact is, corruption was,
IS Bacon himself stiles it in his Submission of
April U'2, 16121, v ilium isniporu: all ihe con-
temporary writers prove this. See also Luden>'s
Considerations on the Law of High Treason in
the article of Leiymg War, cap. iv." Mr. Lu-
dfcik indeed says, *' Bacon was conscious that
be did justice better aud with more expedition
than his Contemporaries : it is remarkable that
be was not accused of selling injustice. The
salt o( justice would have been sufficiently bad
(' nuUi vendemus jusiitiaw,' Magna Lharta

VOL. II.

Field, Mr. Egerton and he being acquaint-
ed, and Mr. Egerton's mind being troubled
with the ill success of his business, vented
it to the divine, who (contrary to his profes-
sion) took upon him to broke for him, in such
a manner as was never p recede n ted by any.
He made Egerton to acknowledge a recogni-
zance of 10,000 marks, with a defeasance, that
if my Lord Chancellor did decree it for him,
6,000 marks was to be distributed among those
honourable persons that did solicit it for him :
but if it did not go as they desired, he promised,
in verba tacirdotis, that he would deliver up
the bonds.

" This appeared by Letters from the now re-
verend bishop, but then practical doctor. Mr.
Johnson (a moral honest man) perceiving that
Mr. Egerton, finding no relief, did intend to

E refer a Petition against the Lord Chancellor
y one Heales's means, took occasion to talk
with Mr. Egerton; asking him, why he would
prefer such a scandalous Petition against my
lord ; be would have him take the money out
of the Petition, and then his cause, by the me-
diation and conference of some other judge
with my lord, might be brought to a good end ;
and for money, if be had lent any, he might be-
satisfied again.

" Afterwards upon a Petition to the king
by sir Rowland Egertou, there was a reference
oi this matter to the Lord Chancllor, and Mr.
Edward Egerton entered into a bond for ten
thousand marks. He had treated with one Dr.
Sharp, that if he would give 1 100/. he should
have his desire. We sent for Sharp, but he
denied that he ever contracted with him. The
desire of the committee was, to reform that
which was amiss ; and they thought fit to give
as much expedition as might be, t>ecau8e so
great a man's honour is soiled with it, and
therefore do think meet that farther inquisition
fce made this afternoon, aud when the truth of
the matter is found, then to be sent to the
lords. Thus I have faithfully related *hat hath
passed, and with as much duty and respect, as
I might to my Lord Chancellor; 1 desire it to
be carried out of die house with a favourable
construction."

Ordered, That this matter be further con-
sidered by the committee this afternoon. Then
the house adjourned.

March 17. Sir Robert Phillips made Report
from the Committee of the Abuses in the Courts
of Justice, viz.

" We met on Thursday in the afternoon ;
the principal thing wherein 1 desired to be
satisfied was, whether at the time of giving
those (lifts to the Lord Chancellor thee were
any suit depending before him. hi Awbrey's
Case it appeared plainly there was : Something
nccidtntrfllv fill out in thi-* Examination, and
th »t i>, a Declaration of sir George Hastings,
. who hath heen struggling with himself betwixt
i gratitude and liouesty ; hut public and private

cap. 49,) but I fear it is impossible to con due
Bacon s guilt within that limit."
4 a

1091] STATE TRIALS, 18 James I. 1620.— 1'rocctdwgs against Lord Bacon, [1«B

could have no remedy, so the Petition went
on. Sir George Hastings, some time since,
had conference wth niy Lord Chancellor; and
lie cold him, ' llemu^t lay it upon his lord-
ship.* « If you do, George/ said he, • I rouit
deny it upon my honour/ Thus you see the
Relation of what hath passed.

" Now for our Proceedings in it; it is a cause
of great weight, it concerns every man here: for
if the fountains be muddy, what will the streams
l>e? If the great dispenser of the king's coo-

goods meeting, he preferred the public, and
owned, that he taking pity on Awbrcy's suh,
did give in a box of iVOl. to the Lord Chan-
cellor, in the e term?, or tlte like, * That it was
' to help A worry in his Cause.1 Notwithstand-
ing, not long after, a very prejudicial and mur-
dering order wo* made against Aubrey in his
cause : whereupon sir Geoige Hasting* moved
my Lord Chancellor to rectify this order. My
lord promised to do it, but did it not. The
Order was put into the hands of one Churchill
(one of the Registers in Chancery) by n servant
of the Lord Chancellor's. There arc Letters of
Aubrey's to the I«ord Chancellor touching this
business. Now for Mr. Egorton's Case : As
the matter was of more weight, so the sum was
of larger extent, for there was 400/. given them,
and a suit then depending in the Star-Chamber;
about which time sir Rowland Egcrton did
prefer a Petition to the king for a reference,
unto the Lord Chancellor : Whereupon my
lord caused him to enter into a bond for 6000
marks to stand to his award. An award was
afterwards, made, which was refused by Mr.
Edward Kgcrton ; thereupon a s>uit by the Lord
Chancellor's direction was commenced against
him, and the bond of 0000 marks assignee) over
to sir Rowland Egeiton. About this time
Edward Kgcrton 1 ccame acquainted with Dr.
];iiid, mid related his cause unto him; who
pitving him, sent him to two worthy gentlemen,
Mr. Dam port and sir John Butler (who is now
dead); he makes kuown his case to them, and
desires them to, he a means to put off his cause
from hearing, )>ccuuse his witnesses were not
here. Whereupon Damport wrote to the duke
of Buckingham to have had his letter to the
J-ord Chancellor to stop it : Hut the duke said
he would not write, because the matter was
already decreed, and he would not receive it.
Mr. Kgerton was drawn into a bond of 10,000
marks for the payment of G000: and Mr.
Damport being asked, what he mid Dr. Field
should have had of this money, he said, he did
not remember what certain sum : hut he said
it "as more than anv cause could deserve in
any court of justice.

41 In AwbriVa Case this is to be said. That
sir George Hastings being at Hackrey, where
be dwelt, was sent for by the lx>rd Chancellor,
and acrordimjlv he came to him and found him
in bed, who bill him come near him, and willed
the rot to depart theTOom ; and then said unto
him, ' .Sir George, I am sure y.*>u love me, and
4 I know that ynu are not willing that any thing
' done by you thall reflect any dishonour upon

* me. 1 hear, that one Awbrey pretends to

* petition against me; he is a man that you
' have some interest in ; you may take him oil*
' if ynu please.'

'* Sir George Hasting afterwards met with
Awbrev, and a^ked him whether ho intended
any such thin*.*, and desired to see it, lo shew
my Jjord Chancellor: which sir George accord-
ingly did, and desired my lord to do the poor
man justice. My lord promised to do it, and
bad luui bring Ins couusel ; and they did, but

science be corrupt, who can bare any courage
to plead before hiin? I will present one thing
unto you, and then make a request. That
which I move, is, that we present his business
singly to the lord*, and deliver it without ex-
asperation ; 1. Because there is but one prece-
dent * for it, in the like oase for a chancellor in a
cause of corruption. 2. Because the party ac-
cused is a peer 6f the kingdom, sitting in the
higher house, whom we cannot meddle wits,
tt. Because we have no power to give an oatb.
That which I request is, that those people which
have been fettered with much calamity ly
these courses, may by petition to bis roajesfv,
or otherwise, have their cause revived and re-
vised.

Sir Eduard Saclville. This honourable lord
stands but yet suspected, and 1 hold not those
gentlemen that have testified against him com-
petent witnesses. 1. Because they speak to dis-
charge themselves. 2. Because if he be guilt),,
they were those that Umpted him. But yer,
if notwithstanding you re*olve to send it up to
the lords, let it be presented without any pre-
judicial opinion, to be weighed in the balance
of their lordships judgments. And if tliey think
fit to examine these witnesses, let them.

Sir (reort*e Hastings. This adds to my grief;
but this is my resolution, 1 hud rather peridi
with a ju?t sentence here, than escape with a
guilty conscience.

Some moved that sir George Hastings and
sir Richard Young «-hould be sequestered from
parliament till the matter wus ended ; bat there
was not bins ordered therein.

Mr. Atn'//. After some reluctation within
me, I am resolved to speak w hat my consei-
scietice leads me unto. 1 speak for the good
ol'niv counn v, the honour of my kiue. and a<!-
vnncement of justice. Justice is the fountain,
the king the head thereof, clear us the waters
of Siloah, pure as the river of Damascus: but
there is a derivative justice brought unto »
by channels, those arc often muddy and more
bitter than the waters of ^Marah: Such waters
flow abundantly in chancery. I will not touch
upon the person of him that jits in court, tor
he is the dispenser of the king's conscience;
but because mhiii* motions are made against
the testimony of thi>«*e iron tie men, I will mf
this, 1 think them fit to >it here, because thtr
are neither delinquents nor accused. My lotd
means to deny it upon hir» honour: but I would

* This seems to be the Case cf Cardinal
"Wolscy. Set 3 Co. Inst. 1 18. 4 Co. Inst. 9.

1093] STATE TRIALS, IS James I. \6UQ.~far Bribery and Corruption. [1094

same he related to the lords without preju-
dice or opinion at a conference ; and -thai a
Message he sent to the lords for this purpose
on Monday next. Adjourned, &c.

March 19.
A Me*s*ge wis sent to the lords by sir Ro-
om Phillips, to desire a Conference touching
the l^rd Chancellor and the bishop of Laii-
d.itF, being petitioned against by Awbrey and
Egerton.

Sir Robert Phillips reports that tlue lords had
agreed to a Conference.

Mr. Secretary Calvert brings a Message
from the king, «* That this parliament hath sat
a long time, and Easter is near come, and
thinks it is lit there should be a cessation for a
time; yet the king will appoint no time, but
leaves it to yourselves. But for the bediming
again, he thinketh the 10th of April a fit time,
but will appoint none; only he would hnte
you take care that there be no iuipedim. -nt in
the Subsidies. — The king also took notice of
the Complaints against the Lord Chancellor,
for which he was sorry, for it hath always been
his care to have placed the best ; but no nutn
can prevent such accidents ; but his comfort
was, tint the house was careful to preserve his
honour. And his majesty thought not (It to have
the affair hang long in suspence ; therefore would
not have any thing to hinder it. But for the
furtherance thereof, he proposed a Commission
of six of the lug her house, and twelve of the
lower liouse, to examine it upon oath. This
proposition if we liked well, he would send the
like to the lords, and this he thought might he
done during this Cessati<m : and though he
hoped the Chancellor was free, yet if he should
he found guilty, he doubted not hat you would
do him justice."

Sir KJunrd Coke said, We should take heed
the Commission do not hinder the manner of
our parliamentary proceedings.

The Answer returned to the King was, T?
render him thanks for the first Part of his gra-
cious Message. And for the second, we'dc-
sired that the like Me -sage may he sent to the
! lords ; for there being so great a concurrence
t betwixt us. we may have conference with them
'about it. And then adjourned, &c.

Match 20.
Sir Kdward Giles made a motion that one
Churchil should be culled in. Whereupon
there was a Petition of one Montacufe, Wood,
&r. against the l^ord Chancellor for taking
300/. of the lady Wharton, and making ordi rs,
• &c. winch was read. Churchil and Keeling
I were said to he Witnesses, and a committee
i was appointed to examine them.
j Sir Robert Phillips reports from the Confer-
! euce, that according to the commandment of
! this house he had delivered those Heads which
were agreed on at the Conference yesterday ;
excusing himself if lie had failed in any point.
That tlie lords accepted it with a great deal ot"
affection, as sensible of the wrongs done to the
Common wealth ; and returned Answer by the
Lord 'fteasurer; First, by way of Question,

not have that serve his turn, for he himself hath
made the nobility swear in chancery. There-
fore I would have their lordships informed
what privileges they have lost. Next, I would
have tliem note the luxuriant authority of that
court, and how it is an inextricable labyrinth,
wherein resideth such a monsteras gormandi/eth
the liberty of all subjects whatsoever.

Afr. Recorder Finch. Jf we shall make but
a presentation of this, we do in a sort accuse
him, nay judge him: if the gentlemen be ad-
mitted to give testimony, before it shall con-
demn another it must agree with itself. First,
I heard him say, he gave it as a present from
himself: yet afterward* he saith, he told my
Lord Chancellor he had it from Awbrey. —
Again, Awbrey speaks not of any delivery of
monef himself to niv Lord Chancellor. Then
Again it is urged, that a discontented suitor writ
letters to my lord : the letters are rejected,
not hearkened uuto; what do til this but free
him ? In the other case, 1f Egerton, out of a
flebire to congratulate hint at his coming to the
seal, made my lord a present fur his kindnesses
and pains in former businesses, what wrong
hath he done if he hath received a present ?
And though a suit were depending, yet who
keeps a register in his heart of all causes? Nay,
who can, among such a multitude ? And for
the (3000 marks, there is no colour to say that
ever be was to have any part thereof. For
to king away the privilege of the nobility in
requiring an oath, he found the court posse?>sed
of it before he came there ; so that we have
no sufficient grounds to accuse so great a lord
upon that account. — But if we shall present
Articles to the lords, what do we (as I said
before) but accu-e him ?

Sir Edward Coke. It is objected, that we
have hut one single witness; therefore no suffi-
cient proof. I answer, That in the 87th of
Fjliz. in a complaint against Soldier-Sellers, for
that having warrant to take up soldiers for the
wars, if they pressed a r'u-h man's son tliey
would discharge him for money, there was no
more than smgularis tc*tit in one matter ; but
though they were single witnesses in several
matters, yet agreeing in one and the same
third person, it was held sufficient to prove a
work of darkness. For in such works it is a
marvel there are any witnesses. — But some ob-
ject that these men are culpable; and there-
fore no competent witnesses. I answer, They
came not to accuse, but were interrogated. —
If I be interrogated, I had rather speak truth
than respect any man ; and you will make Bri-
be ry to be unpunished, if he that carrieth the
Bribe shall not be a witness. In this, one wit-
ness is sufficient ; lie that accuseth himself by
accusing another, is more than three witnesses :
and this was wrought out of them.

Ordered, That the Complaint of Awbrey
and Egerton against the Lord Chancellor and
the bishop for Coiruption, for the 100/. and
400/. and the recognizance, should be drawn
ii]i by sir Robert Phillips, sir Edward Coke,
Mr. Noy, and sir Dudley Diggt ; ami that the

1093] STATE TRIAI& 18 James I. 1620.— Proccedingt agahut Lord Bacon, [109f

Whether we would not reduce them into writ- I which he himself knew in part. Gardiner,
ing. Resolved No, for no cause ; this only Heeling's man, confirmed the payment of die

c6usisting or" two or three points, clear and ! 300/. lor the Decree, vii. 100/. before, and
plain; and as for the Letters and other things ' 200/. after. This purchased Decree being

which the lords desired, we would acquaint
the house, and doubted not but it would be
yielded.

The lords further returned for Answer, That
they would proceed in this matter with care,
diligence and expedition.

A Message from the lords to signify, that
they have taken into consideration the last
Conference, and shall need the testimony of
two members of this house; and therefore de-
sire, that voluntarily, and without ordering,
as private pers-ms, they make declaration upon
Oath, and the like for others if occasion were.

The Answer returned was, That the gentle-
men would attend voluntarily as private gen-
tlemen, and upon private notice be examined.

Sir Robert VhUUpt reports from the com-
mittee appointed to examine Churchil; from
which particular a general may be extracted,
conducing to the discovery of Corruption in
the Lord Chancellor.

" The lady Wharton having a Cause de-
pending hi chancery, many orders were made
in it. Amongst the rest, there was an Order
made for the dismission of the Bill, by the
consent of the counsel on both sides ; which
my l.tdy disliking, took Churcliil the Register
into her coach, and carried hyn to my Lord
Chancellor's, and so wrought that he was willed
not to enter the last Order ; so that my lady
was left at liberty to prosecute it in chancery,
brought it to a hearing, and at length got a
Decree.

" Keeling being examined, snith, That near
about the time of passing this Decree, my lady
took an hundred pound (he saw it), and she
made him set down the words and style which
he should nse in the delivery of it. Then she
goes to York-house, and delivered it to my
Lord Chancellor, as she told hiin. She carried
it in a purse. My lord asked her, * What she
' had in her hand ?' She replyed, ' A purse of
' my own making/ and presented it to him ;
who took it and said, ' What lord could refuse
* a purse of so fair a lady's working ?'

" After this my lord mode a Decree for her,
but it was not pt rfected ; but 200/. more being
given (one Gardiner being present) her Decree
had life. But after the giving of the 100/.
because she had not 200/. ready in money, one
Shute dealt with her to convey the land to my
Lord Chuurellor and his heirs, reserving an
estate to herself for life ; but she knowing no
reason to disinherit her own children, asked
Keeling her mun what he thought of it; lie
(like an honest servant) was against it.

" Shute knowing this, sets upon Keeling, and
brings him to he willing my lady should do it,

lately damned again by my Lord Chancellor,
was the cause of this Complaint

" Keeling saith, * Sir John Trevor did present
my Lord Chancellor with 100/. by the hands
ot sir Richard Young, for a final end to this
cause/

" Sir Rd. Young answered, ' That when he
attended my Lord Chancellor, sir John Tre-
vor's man brought a cabinet and a letter to my
Lord Chancellor, and intreated roe to deliver
it, which I did openly ; and this was openly
done, and this was all I knew of it."

Sir Edward Coke. Strange to me that this
money should be thus openly delivered, end
that one Gardiner should be present at the pay-
ment of the 200/.

Ordered, That sir Robert Phillips do deliver
to the lords this afternoon the bishop of Lao-
daff and Awbrev's Letters, and all other Wri-
tings that be hath. And then adjourned, &c.

Marc A 21.

Sir Robert Phillips reports from the cocs-
mittee appointed to examine Keeling aad
Churchil, who informed many Corruptions
against the Lord Chancellor.

" 1. In the cause betwixt Hull and Hole-
man, Hull gave or lent my lord 1000/. since
the suit began. 2. In the cause between
Wroth and Manwaring, there were 100 pieces

given, of which Hunt had 20/. 3. Hoddy gave
a jewel which was thought to be worth 500/.
hut he himself said it was a trifle of a hundred
or two hundred pound price : it was presented
to the Lord Chancellor by sir Thomas Perya
and sir Henry Holmes. 4. In the cause be-
tween Peacock and Reynell, there was much
money given on both sides. 5. In the cause
of Barker and Bill, Barker said he was 800/.
out in gills since this suit began. 6. In the
cause between Smithwick and Welsh, Smith-
wick gave 300/. vet ray lord decreed it against
him ; so he had his money again by piece-
meal.— In this and other causes, my lord would
decree part ; and when he wanted more money
he would send for more, and then decree ano-
ther part. In most causes my lord's servants
have undertaken one side or another ; insomuch
as it was usual for counsel, when their clients
came unto them, to ask what friend they had
at York-house."

Mr. Mtwti/i. Touching the persons that in-
form, I would in treat this honourable bouse to
consider that Keeling is a common sotlicitor
(to say no more of him); Churchil a guilty
Register by his own confession: I know that
fear of punishment, and hopes of lessening it,
may make them to say much, yea more than is
with p.)wer of revocation upon the payment of • true. For my own part, I must say I hate
800/. but that not being liked, they made a been en observer of my lord's proceeding;
shift to pay 1200/. in a reasonable time. Keel- I know be hath sown the good seed of justice,
ing lets tall some speeches, as if be bad left end I hope that it will prove that the en»
York-housefor the Corruption which was there, vious men hath sown those tares. I hntaty

1097] STATE TRIALS, U Jamm I. MXi—M Bribery md Common. [1098

sir George Hasting, to bring the party Awbrey
unto him, and promised rediess of (he wro

desire thtt these Generals may not be •

op to the lordi, unlets these nw

them in particular.

Ordered, Tint • Message be
lords by fir Robert Phillips, to relate the Caw
of the lady Wharton, aod the informations , ;
Churchil.

Sir Itobert Phillips reports fmrn the Ion 1.,
That they acknowledged the great care of thi-,
bouse in these important businesses; return
thanks for the correspondence of thu house
with them, and assure the Ike from them fur
erer to this house. In these and all other
thing* they will advise, aud return answer at
aooa as posuble.— And then adjourned, &c.

P>0CEEDI*C3 IN THE HonSE OF LoiDs.

On Monday (he 19th day of March 1630, in
toe afternoon, the Commons had a Conference
with ibe Lords; which Conference was re-
ported the neit day by the Lord- Treasurer •
That it was the dt tire of the enmmons to in-
form their lordships of ihe great Abuses of the
Courts of Justice, lhe-Iuforu_|tian whereof hi
divided into these three part*? 1. The Persons
•ceased, a. The Matters objected again
them. 3. The Proofs. ^^

The Persons we lite Lord Chancellor of Eng.

and toe now bo-hop of Landaff, being

'"■''' "Tl" incompn-

which he «

o bisliop. hut Dr. Field.

rtblegood parts of the Lord Chancellor were
highly commended, the place he holds magni-
fied, from whence bounty, justice and mercv
— !_ to be distributed to the subjects, with
is solely trusted ; whither all great
-— »« ">■« drawn, and from whence no ap-
peal lay for any injustice or wrong done, save
to the parliament.

That the Lord Chancellor was accused of
great Bribery and Corruption* committed by
Mm in this eminent place; whereof two case
were alls Iged. The one concerning Christo-
pher Awbrey, and the other concerning Ed-
ward Egerton.

1. In the cause depending in the Chancery
between the said Awbrey and sir Williaiii
Bronker, Awbrey feeling some bard measure
was advised to give the Lord Chancellor 100/.'
the which he delivered to his counsel, si
George Hastings, and he to the Lord Chan-
cellor: thu business proceeding slowly not-
withstanding, Awbrey did write divers (ctteri
and delivered them to the Lord Chancellor, to
which he never obtained any answer from his
lordship; but at hist delivering another letter,
bis lordship answered, ' If he importuned him
J» would lay him by the heels/— The Proofi
NT this Accusation are five, », Sir Genres
Hastings relating it long since unto sir Charles
Montague. 3. The Lord Chancellor fearing
Jiis would be complained of, desired silence nt
»> George Hustings. 3. Sir George Hastings'
astunoni thereof, which was not voluntary
Mt urged. 4. The Lord Chancellor desired

* S Co. Inst. 118.

— 5. That the Lord Chancellor said
unto sir George Wiistings if he should affirm the
giving of this 100/. his lordship would and must
deny it upon his honour.

2. The case of sir Edward Egerton it this :
There being divers suits between Edward Eger^
ton and sir Rowland Egerlon in the chancery,
Edward Egerton presented bis lordship, a Ihtle
after he was Lord Keeper, with a b.iton and
ewer of the value of 50/. and upwards j and
afterwards he delivered unto sir George Hus-
tings, and sir Richard Young, tool, in gold.
Sir Rd. Young presented it lo his lordship,
who took it, and noised it, and said it was too
much ; and returned answer, that Mr. Egerton
had not only enriched him, but had laid a tye
upon his lordship to do him favour in all his
just causes.

The Proofs for this are the testimony of sir
George Hastings, and the testimony of Men-fill
- scrivener thus far, that he took up 700/. for
Ir. Egerton; Mr. Egerton then telling him
uit a great part of it was to he given to the
Lord Chancellor, and that Mr. Egerton after-
wards told him that the 400/. in guld was given
to the Lord Chancellor.

At this Conference was farther declared some-
what relating to a Bishop.who was touched in this
business upon the Lye, whose functiun was much
honoured, but his person touched herein. The
business depending between the Eijeitons being
ordered against Edward Egerton, he procured
a new reference thereof from the king to the
Lord Chancellor; his lordship demanded the
parties to be bound in 6000 marks to stand to
his lordship's awurd ; they having entered into
that bond, his lordship awarded the matter
against Edward Egerton for sir Rowland Eetr-
ton ; but Edward Egerton refusing to stand to
the said award, a new Bill was exhibited in the
Chancery, and thereupon his lordsliip ordered
that this bond of 600(1 marks should he assigned
unto* sir Rowland Egerton, and lie to put the
same in suit in his lordship's name.

The bishop of Landaff, as a friend to Mr.
Edward Egerton, adviseth with Randolph
Dam port, [otherwise Davenport] and Duller
(which Butler is now deud) that they would
procure a stay of the decree of that award, and
procure a new hearinc; upon which it was
"greed, that the said 6000 murks should be
given for this by Edward Egerton, nnd shared
amongst them, and amongst certain noble per-
sons. A recognizance of 10,000 murks was re-
quired from Mr. Egerton to the bishop lor tho
performance hereof; the bishop his share of
■ siiss 6,000 marks was so great, as no court of
juitic* would allow.

To prove this they produce Letters of the
bishop, naming the sum, aud setting down a
er)uree how these 8OO0 marks might he raised,
vis. the land in question to be decreed for Mr!
Egerton, and nut of that the money to be
levied; and if this were not elfected, than the
shop, ' in verba sacerdotis,' promised tu do-

1099] STATE TRIALS, 18 James I. 1620.— Proceeding* agauut Lord Bacon, [1100

liver up this recognizance to be cancelled ; the
new recognizance is sealed accordingly, and
Randolph Dainport rides to court, and moved
the Lord Admiral [duke of Buckingham,] for
bis lordship's letter to the Lord Chancellor
herein : but his lordship denied to meddle in
a cause depending in suit.

Then the said Randolph Dam port assayed
to get the king's letter, but failed therein alio ;
so that the good they intended to Mr. Egcrton
was not effected, and yet the bishrp, though
required, refused to deliver up the said Recog-
nizance, until Mr. Egerton threatened to com-
plain thereof unto the king.

The Lord Treasurer shewed also, that the
Commons do purpose, that if any more of this
kind happen to be complained of before them,
they will present the same to your lordbhips,
wherein they shall follow the antient prece-
dents, which shew that great persons hare
been accused for the like in parliament. — They
humbly desire, that forasmuch as this concern-
ed a person of s ) great eminency, it may not
depend long before your lordships, that the ex-
amination of the Proofs may be expedited, and
if he be found Guilty, then to be punished ;
if not Guilty, the now Accusers to be punished.
This beini; reported, the Lord Admiral pre-
sented to the house a Letter written unto their
lordships; the tenor whereof follows :

Lord Bacon's Letter to the House of Lords.

' My very good lords ; I humbly pray your

* lordthips all to make a fhvcurable and true

* construe: inn of ray absence; it is no feigning
< nor fainting, but sickness both of my heart,
' and of my back, though joined with that
4 comfort of mind, that pervades me, that I

* am not far from heaven, whereof I feel the
' first fruits : and because whether 1 live or die,
' I would be glad to preserve my honour and
' fume as far as I am worthy ; hearing that
' some Complaints of base Bribery are coming
' before your lordships, my Requests unto
' your lordships are, — First, That you- will
' maintain me in your good opinion without
' prejudice, until my cause be heard. — Second-
' ly, That in regard I have sequestered my mind

* at this time in great part from worldly things,
' thinking of my Accompt and Answer in a
4 higher court, your lordships would give me
' convenic nt time, according to the course of
4 other courts, to advise with my counsel, and
' to make rov Answer ; wherein nevertheless
' my counsel's part will be the least, for I shall
' not by the grace of God trick up an inno-

* cency with cavitations, but plainly and inge-
4 nuouslv, as your lordships know my manner

* is, declare what I know or remember. —

* Thirdly, That according to the course of jus-
' tice, 1 may be allowed to except to the Wit-

* n esses brought against me, and to move

* questions to your lordships for their cross
' Examination, awl likewise to produfce my

* own witnesses for discovery of the truth.—

* Aud lastly, That if there come any more Pe-
' titions of like nature, that your lordships

' would be pleased not to take any prejudice or
' apprehension of any number or muster of
' them, especially against a Judge, that makes
' two thousand Orders au£ Decrees in a year ;
' not to speak of the courses that have been
' taken for hunting out Complaints against me;
r but that I may answer them according to the
' rides of justice severally and respectively.
' These requests I hope appear to your lord-
' ships no other than just ; and so thinking
' myself happy to have so noble peers, and re-
' verend prelates to discern of my cause, and
' desiring no privilege of greatness for suftter-
' fuge of guiltiness, but meaning, as I said, to
' declare fairly and plainly with your lordship*,
( and to put myself upon your honours and fa-
' vours, I pruy God to bless your councils, and
' your persons ; aud rest your lordships hum-
' blest servant, Fra. St. Albak.'

« March 19, 1620.'

Upon which Letter, Answer was sent from
the lords unto the said Lord Chancellor on the
said 20th of March, viz. " That the lords re-
ceived his iordshw's Letter delivered unto then
by tlie Lord Admiral : They intend to process
in his Cause now before their lordships, accord-
ing to the right rules of justice ; and they shall
be glad, if his lordship shall clear his honour
therein ; to which end they pmy his lordship to
provide for his just Defence."

Farther Complaints against the Lord Chan-
cellor.

And afterwards on the 21st of March, the
commons sent a Message unto the lords con-
cerning their further Complaint against the
said Lord Chancellor ; which consisted of these
four points, viz.

" The first in Chancery being between the
lady Wharton plaintiff, and Wood and others
defendants, upon cross-bills ; the Lord Chan-
cellor upon hearing wholly dismissed them, hot
upon entry of the Order, the cross-bill against
the lady Wharton was only dismissed, and after-
wards for a bribe of 300/. given bv tbe lady
Wharton to the Lord Chancellor, his lordship
decreed the Cause further ; and then hearing
that Wood and the other defendants complain-
ed thereof to the house of commons, his lord-
ship sent for them, and damned that Decree
as unduly gotten : and wheu the lady Wharton
began to complain thereof, his lordship sent for
her also, and promised her redress ; saying, the
Decree is not yet entered.

" Secondly, In a suit between Hall plaiutirl,
and Holman defendant, Holman deferring his
Answer was committed to the Fleet, where he
lay twenty weeks ; and petitioning to be deli-
vered, was answered by some about the Lord
Chancellor, the Bill shall be decreed against
him pro conj'esso, unless he would enter, into
2,000/. bond to stand to the Lord ClianceUori
Order; which he refusing, his liberty cost him
one way or other 1,000/. Holman being freed
out of the Fleet, Hall petitioned to the Lord
Chancellor, and Holman finding his cause to
go hard with him on bis side, complained t»

Corrupt*

[1103

the commons ; whereupon the Lord Chancel-
lor sent for him, and to pacify him, told him,
* He should have what Order lie would himself.'

" Thirdly, Iu the Cause between Smithwick
and Welsh, the matter in question being for
Accouipts, it was referred to certain merchants,
who certitied in the behalf of Smithwick ; yet
Smithwick to obtain a Decree, was told by one
Air. Burrougb, one near to the Lord Chancellor,
that it must cost him 200/. which he paid to
Mr. Borrough or Mr. Hunt to the use of the
Lord Chancellor, and vet the Lord Chancellor
decreed but one pari of the certificate , where-
upon he treats again with Mr. Burrough, who
demanded another 100/. which Smithwick also
paid to the use of the Lord Chancellor. Then
iiis lordship referred the Accompts again to
the same merchants ; who certitied it again for
Smithwick ; yet his lordship decreed the se-
cond part of the certificate against Smithwick,
ond die first part, which was formerly decreed
for him, Ids lordship made doubtful. Smithwick
petitioned to the Lord Chancellor for his
money again, and Smithwick had all his money
again, save 20/. which was kept back by Hunt
for a year."

The Lord Chief Justice (*ir James Ley) also
delivered three Petitions, which his lordship
received yesterday from the commons, the first
by the lady Wharton, the second by Wood
and others, and the third hy Smithwick.

The fourth part of the Message consists only
of Instructions delivered unto tite commons by
one Churchil, a register, concerning divers
Bribes and Abuses in the Chancery, which the
commons desire may be examined.

The lords iu the meau time proceeded to the
Eiamination of the Complaints, and took di-
vers Examinations of Witnesses in the house,
aud appointed a select Committee of them-
selves, to take Examination of Witnesses to the
Briberies and Corruptions of I lie Lord Chan-
cellor ; which being ended and collected, were
ordered to be transcribed with the proofs, and
were as follow :

That in the Cause between sir Rowland
Kgerton and Edward Egertoti, his lord-
ship received on the part of sir Row-*
land Kgerton- before he decreed for J[.

■ him - 300

Item, Of Edward Egerton in the said
Cause - ---------

Item, In the Cause between Hodie and

Hodie, a dozen of buttons, after the

cau«e ended, of the value of - - -

Item, Of the lady Wharton - - - -

Item, Of sir Thomas Monk - - - -

Item, Of sir John Trevor -.-_--
Item, Of one Young ------

Item, Of one Fisher ------

Item, In tlie Cause of Kenday and Va-

iore, of Kenday a cabinet worth - -

Of Valore, borrowed at two times - -

Item, In the Cause between Scot- and

LenthtdJ, of Scot -------

Item, Of LenthaH .--•--.-

400

50
310
100
100
100
10G

800
2000

COO
100

Item, Of one Wroth, who had a Cause

between him and one Manwaring - - 100
Item, Of sir Ralph Hansby - - - - 500

Item, In the lord Mountaine's Cause, of
the lord Mountaine, and more promis-
ed at the end of the Cause - - 600 or 700
Item, Of one Mr. Dunch - - - - . goo

Item, In a Cause between Reyneil and
Peacock, 200/. in money, and a dia-
mond ring worth 5 or 600/. - - 700 or 800
Item, Of Peacock ------- i00

Item, In a Cause of Barker - - - • 700
Item, There being a reference from his
majesty to his lordship of a business
between the grocers and apothecaries,
he had of the grocers ----- 900

Of the apothecaries, (besides a rich pre-
sent of arobergrease) ----- j«,o

Item, Of the French merchants, to con-
strain the vintners of Ijondon to take
1500 tuns of wtue; to accomplish
which, lie used very indirect means,
by colour of his office and authority,
without bill or other suit depending,
as threatening and imprisoning the
vintners, for which he received of the
merchants --------- JOOO

lastly, That lie had given way te great exac-
tions by his servants, in respect of private seals,
and scaling injunctions.

April 24, the Prince his highness signified
unto their lordshipa, that the said Lord Chan-
cellor had sent a Submission unto their lord-
ships, which was presently read in hac verba :
The Lord-Chancellor's Submission.
' May it please your lordships; I shall hum-
' bly crave at your lordships hands a benign in-
' terprctation of that, which 1 shall now write ;

* for words, that come from wasted spirits, and
' un oppressed mind, are more safe in being de-
' posited in a noble construction, than iu heing
' circled with any reserved caution. — This be-

< iug move:!, and as I hope obtained in the na-

< ture of a Protection for all that 1 shall say, 1

* shall now make into the rest of that, wherewith
' I shall at this time trouble your lordships, a
1 very strange entrance: for in the midst of a

* state of as great affliction, as I think a mortal
' man can endure, (honour being above life) I
' shall hegin with the professing of gladness in
' some things. — 1 he first is, that hereafter the

< greatness of a Judge or Maeistrate shall be no
' sanctuary or protection of guiltiness, which
' (in few words) is the beginning of a Golden

( ' were at a great distance) us from a serpent ;
( which tendf-th to the purging of the Courts of
« Justice, and the reducing them to their true
* honour and splendor. And in these two
' points, God is my witness, that, though it be
( my fortune to be the anvil whereupon these
' good effect* are br-aten and wrought, I take no
' small comfort. — But to pass from the motions
' of my heart, whereof God is only judge, to the
' merits of my Cause, whereof your lordships

110S] STATE TRIALS, 18 James I. 1 620<—Proceedi*g8 again* Lord Bacon, [1104

are Judges unto God, and his lieutenant; I
do understand there hath been heretofore ex-
pected from me some Justification, and there-
fore I have chosen one only Justification in-
stead of all other, one of the justifications of
Job : for after the dear Submission and Con-
fession, which I shall now make unto your
lordships, I hope I may say and justify with
Job in these words, ' 1 have not hid my sin,
as did Adam, nor concealed my faults in my
bosom ;' (Job, c. 31. verse 33.) This is tbe
only Justification, which I will use : it resteth
therefore, that without fig-leaves I do ingenu-
ously confess and acknowledge, that having
understood the particulars of the Charge, not
formally from the house, but enough to inform
my conscience and memory, 1 find matter
sufficient and full both to move me to desert
the Defence, and to move your lordships to
condemn and censure me. — Neither will I
trouble your lordships by singliug those Par-
ticulars, which I think may easiest be answer-
ed, ' Quid teexempta juvat spinis de pluribus
una ?' Neither will I prompt your lordships to
observe upon the Proofs, where they come
not home, or the scruples touching the credit
of the Witnesses; neither will I represent to
your lordships bow far a Defence might in di-
veis thiugs extenuate the offence in respect of
the time or manner of the Gift, or the like cir-
cumstances ; but only leave those things to
spring out of your own noble thoughts and ob-
servations of' the Evidence and Examinations
themselves, and charitably to wind about the
particulars of the Charge here and there, as
God shall put you in mind, and so submit my-
self wholly to your pity and grace. — And now
that I have spoken to your lordships as Judges,
I shall say a few words to you as Peers and
Prelates, humbly commending my cause to
your noble minds and magnanimous affections.
— Your lordships are no simple Judges, but
parliamentary Judges; you have a farther ex-
tent of arbitrary power, than other Judges;
and if your lordships be not tied by the ordi-
nary course of courts or precedents in points
of strictness and severity, much less are you
in points of mercy and mitigation. — And yet
if any thing which I shall move, might be con-
trary to your honourable and worthy end to
introduce a reformation, I should not seek it ;
but herein I beseech you give me leave to tell
your lordships a Story. T.tus Manliu* took
his son's life for giving battle against the pro-
hibition of his general: not many years after
the like severity was pursued by Papiriu>
Cursor the Dictator against Quintus Maximum;
who, being upon the point to be benteuced,
by (lie intercession of some principal person*
of the senate, was spared; whereupon Livv
makes this grate and gracious observation:
'Neqne miuus finnata est disciplina militarist
' periculo Quinti Maxiiui, quain uiUerabili sup-
* plicio Titi Maulii.' * The discipline of war
was no le«s e<>tahlithed by the questioning of
Quintus Maximus, than by the punishing of
Titus Manlius.' And the same reason is of

* the Reformation of Justice; for tbe question-
' ing men of eminent place hath the same terror,

* though not the same rigour, with tbe puni>h-
' ment. — But my Case stayeth not there ; for
' my humble desire is, that his majesty would

* take the Seal into his hands, which i* a great
' downfal, and may serve, I hope, in itself for
' an expiation of my faults. — Therefore if mercy
' and mitigation be in your powers, and do no
' way cross your noble ends, why should I not
' hope of your lordships favours and conimisera-
' tion? Your lordships will be pleased to behold
' your chief pattern, the king our sovereign, of
' most incomparable clemency, and whose l.eart
' is inscrutable for wisdom and goodness : your

* lordships will remember that there sat uot
' these 200 years before a Prince in your house,

* aud never such a prince, whose presence de-

* serves to be made memorable by records and
( acts mixt of mercy and justice. Yourselves,
1 either nobles (and compassion ever beats in
' the veins of noble blood) or reverend prelates,
( who are the servants of him that would oot
' break the bruised reed, nor queoch the smosk-

* ing flax ; you all sit upon an high stage, and
( therefore cannot but be more sensible of the
' changes of tbe world, and of the fall of any of
' high place. Neither will your lordship© forget,

* that there are vitia temporis as well as uim

* honrinis;* and that the beginning of reforma-
' tions hath the contrary po«er of the Pool of
( Bothesda ; for that had strength to cure onl?

* him that is first cast in, and this hath strength
( to hurt him only that is first cast in : and for
' my part, 1 .wish it may stay there, and go no

* further. Lastly, I assure myself your lard-
' ships have a noble feeling of me as a member
' of your own body ; and one thing there was,
' that in this very session had some taste of yov
' loving affections, which I hope was not a
' lightning before death, but rather a spark of

* that grace, which now in conclusion will moft

* appear. And therefore my humble suit uato
' your lordships is, that my penitent Submissioa
< may be my Sentence, and the loss of the Seal
' my Punishment, and that your fordships wiH

* spare my farther Sentence : But recommend

* me to his majesty's grace and pardon for all
' that is past. Ood's holy spirit be among yon!
' Your lordships humble servant and supplicant,

' Fa an. St. Albans, Cane'

* The judicial corruption of iho«.e times may
be inferred from niv lord Bacon's addres* to
Serjeant Hutton upon becoming a judge of it*
Common Pleas, wherein Bacon particularly cap-
tions the new judge to beware of corruption:
4 I hat you- hands and the bauds of your hands
(I mean th-ise about you) be clean and uncor-
rupt from gift**, from meddling in titles, and
from serving of turns, be they great ones or
small ones." See Luders's chapter " on the
station and character of die Judges in the six-
teenth and seventeenth centuries." Mr. Bar-
riugton, in itis Ob*er» i tion-* on Magna Charts,
ha* collected some particulars of Judicial Cor-
ruption in different periods*

1105] STATE TRIALS, IS James I. 1 6Q0. —for Bribery and Corruption. [1106

The Lords having considered of this Submis-
sion, and heard the Collections of' Corruptions
charged upon the said Lord Chancellor, and
the Proofs thereof read, they sent a Copy of
the same without the Proofs unto the Lord
Chancellor by Mr. Baron Denham» and Mr.
Attorney General, (sir Thomas Coventry) with
this Message from their lordships, vii. " That
the Lord Chancellor's Confession is not fully
set down by his lordship in the said Submission,
for three causes. 1. His lordship confesseth
not any particular Bri he or Corruption. S. Nor
sheweth how his lordship heard the Charge
thereof. 3. The Confession, such as it is, is
afterwards extenuated in the same Submission.
And therefore the Lords have sent him a par-
ticular of the Charge, and do expect his Answer
to the same with all convenient expedition."

Unto which Message the Lord Chancellor
answered, That he would return the Lords an
Answer with speed. Anjd on the 25th of April,
the Lords considered of the Lord Chancellor's
•aid Answer sent unto their Message yesterday,
and sent a second Message onto his lordship
to this effect, by the said Mr. Baron Denbam,
and Mr. Attorney General, vix. " The Lords
having received a doubtful Answer unto the
Message their Lordships sent him yesterday,
therefore they now send to him again to know
of his lordship directly, and presently, whether
his lordship will make his Confession, or stand
upon his Defence."

Answer returned by the said Messengers,
▼is. " The Lord Chancellor will make no man-
ner of Defence to the Charge, but meaneth to
acknowledge Corruption, and to make a parti-
cular Confession to every point, and after that
ah humble Submission ; hut humbly craves li-
berty, that where the Charge is more full than
he rods the truth of the fact, he may make De-
claration of the truth in such particulars, the
Charge being brief, and containing not all cir-
cumstances."

The .Lords sent the same Messengers back

Sin to the Lord Chancellor, to let him know,
t their lordships have granted him time until
Monday next tlte 30th of April, by ten in the
morning, to send such Confession and Submis-
sion as his lordship intends to make.

On which Monday the Lord Chancellor sent
the aameaccordingly, which follows in lute verba,

To the right honourable the Lords Spiritual and
Temporal, in the High Court of Parliament
assembled :

The humble Confession and Submission of
Me the Lord Chancellor.

' " Upon advised consideration of the Charge,
descending into ray own conscience, and call-
ins my memory to account so far as I am able,
I ao plainly and ingenuously confess, that I am
guilty of Corruption, and do renounce all De-
fence, and put myself upon the grace and mercy
of your lordships. — The Particulars I confess
and declare to be as followeth :
To tlte first Article of the Charge, vis. ' In

VOL. II.

' the Cause between sir Rowland Egerton and
4 Edward Egerton, the Lord Chancellor re-

* ceived 300/. on the part of §ir Rowland
' Egerton, before he had decreed the Cause :v
— I do confess and declare, that upon a refe-
rence from his majesty of all suits and contro-
versies between sir Rowland Egerton and Ed-
ward Egerton, both parties submitted them-
selves to my Award by recognizances recipro-
cal in 10,000 marks a-piece. Thereupon, after
divers hearings, I made my Award, with the
advice and consent of my lord Hobart. The
Award was perfected and published to the par -
ties, which was in February. Then some days
after, the 300/. mentioned in the Charge, were
delirered unto me. Afterwards Mr. Edward
Egerton flew off from the Award. Then in
Midsummer Term following a suit was begun
in Chancery by sir Rowland, to have the Award
confirmed : and upon that suit was the Decree
made, mentioned in the Article.

The second Article of the Charge, viz. ' In
4 the same Cause he received from Edward
' Egerton 400/. :' — I confess and declare, that
soon after my first coming to the Seal, being a
time when I was presented by many, the 400/.
mentioned in the said Charge, was delivered
unto me in a purse, and as f now call to mind,
from Mr. Edward Egerton ; but, as far as I can
remember, it was expressed by them that
brought it, to be for favours past, and not in re-
spect of favours to come.

The third Article of the Charge, viz. ' In the
' Cnuse between Hody and Hody, he received
' a dozen of buttons of the value of 50/. about
' a fortnight after the Cause was ended :' — I con-
fess and declare, that as it is laid in the Charge
about a fortnight after the Cause was ended, it
being a suit for a great inheritance, there were
gold buttons, about the value of 50/. an is men-
tioned in the Charge, presented unto mc, as I
remember, by sir Thomas Perrot, and the party
himself.

To the fourth Article of the Charge, viz. « In
( a Cause between the lady Wharton and the
' coheirs of sir Francis Willoughby, he received

* of the lady Wharton 310/. :' — 1 confers and
declare, that I did receive of the lady Wh*r-
ton, at two several times, as I remember, in
gold 200/. and 100 pieces, and this was certa in-
ly pendente lite : But yet I have a vehement
suspicion, that there wassome shuffling between
Mr. Shute and the Register, in entering some
orders, which afterwards I diet distaste.

To the fifth Article of the Charge, viz * In

* sir Thomas Monk's Cause, he rerei*e<l front
' sir Thomas Monk, by the hands of sir Henry
' Holmes, 110/. but this was three qunrur* of
' a year after the suit was ended :* — I confers it
to be true that I received 100 pi^ce*, but it
wan long aster the suit ended, as is contained in
the Chame.

To the *ixf h Article ofthe Charge, viz. * In
' the Cause between sir John Trevor and Ascue,
€ he received on the part of sir John Trevor
' 100/ :* — I conffsa and declare, that I received
at New-Year's-Tide 100/. from sir John Tre-

4b

'raise; all which was transacted by
' Shute :' — I confess and declare, that
fortnight after, as 1 remember, that the Decree
1, 1 received 900/. as from Mr. Scott, by

passed,
Mr. Sb

1107] STATE TRIALS, 18 James I. \6QQ.—Proceedmg$ again* Lord Boom, [1103

Tor; and because it came as a New-Year's 'mise: all which was transacted by Mr.

Gift, 1 neglected to inquire, whether the Cause

was ended or depending : but since I find ibat

though the Cause was then dismissed to a tt tal

at law, yet the equity was reserved, so as it.

was in thai kind pendente lite.

To the seventh Article of the Charge, tic
' In the Cause between Holroan and Young,
' he received of Young 100/. after the Decree
' made for him :' — I confess and declare, that as
I remember, a good while after the cause
ended, I received 100/. either by Mr. Toby
Mathew or from Young himself: but whereas I
have understood, that there was some money
given by Ilolman to my servant Hatcher, to
that certainty I was never made privy.

To the eighth Article of the Charge, ' In the
4 Cause between Fisher and Wrenhain, the Lord
' Chancellor, after the Decree passed, received a
4 suit of hangings worth 160/. and better, which
4 Fisher gave him by advice of Mr. Shute :* — I
confess and declare, that some time after the De-
cree passed, I being at that time upon remove to
York-houte, I did receive a suit of hangings of
the value, I think, mentioned in the Charge, by
Mr. Shute, as from sir Edward Fisher, towards
the furnishing of my house, as some others, that
were no ways suitors, did present me with the
like about that time.

To the ninth Article of the Charge, ( In the
' Cause between Kenneday and Vanlore, he
' received a rich cabinet from Kenneday, ap-
4 praised at 800/.:' — I confess and declare, that
such a cabinet was brought to my bouse, though
nothing near half the value ; and that I said to
him that brought it, that I came to view it, and
not to receive it, and gave commandment that
it should be carried back, and was offended
when I heard it was not. And about a year
and an half after, as I remember, sir John
Kenneday having all that time refused to take
it away, as I am told by my servants; I was
petitioned by one Pinkney, that it might be de-
livered to him, for that he stood engaged for the
money that sir John Kenneday paid for it ; and
thereupon sir John Kenned ay wrote a letter to
my servant Sherborne, with his own hand, de-
siring I would not do him that disgrace as to
return that gift back, much less to put it into
a wrong hand : and so it remains yet ready to be
returned to whom your lordships shall appoint.

To the tenth Article of the Charge, viz.
' He borrowed of Vanlore 1000/. upon his own
4 bond at one time, and the like sum at another
' time upon his lordship'* own bdl, subscribed
4 by Mr. Hunt his man :' — I confess and declare,
that I borrowed the money in the article set
down ; and that this is a true debt, and I re-
member well, that I wrote a letter from Kew
about a twelvemonth since to a friend about
the king, wherein I desired, that whereas I
owed Peter Vanlore 2,000/. his majesty
would be pleased to grant me so much out of
his tin* set upon me in the Star-chamber.

To the eleventh Article of the Charge, vii.
1 lit* received of Richard Scott 200/. after his
4 Cause was decreed, but upon a precedent pro-

r. Shute, as upon some precedent promise or
transaction by Mr. Shute: Certain 1 as I
knew of none.

To the twelfth Article of the Charge, viz.
4 He received in the same Cause on the part of
' sir John Lentall 100/.:' — I confess and declare,
that some month after, as I remember, thai the
Decree passed, I received 100/. by my servant
Sherborne, as from sir John Lentall, who was
not the adverse party to Scott, but a third per-
son relieved by the same Decree in the suit of
one power.

To the thirteenth Article of the Charge, vis.
' He received of Mr. Worth 100/. in respect of
' the Cause between him and sir Arthur Man-
' waring :' — I confess and declare, that this
Cause being a Cause for inheritance of good
value, was ended by my arbitrament and con-
sent of parties, and so a Decree passed of
course ; and some month after the cause was
ended, the 100/. mentioned in the said article,
was delivered to me by my servant Hunt.

To the fourteenth Article of the Charge, vie
' He received of sir Ralph Hansbye, having a
' Cause depending before him, 600/.:' — I contest
and declare, that there were two Decrees, oat,
as I remember, for the inheritance, and the
other for the goods and chatties, but all upon
one bill : and some good time after the first
Decree, and before the second, the said 500/.
was delivered unto me by Mr. Toby Mathew;
so as I cannot deny but it was upon the matter
pendente lite.

To the fifteenth Article of the Charge, vis.
4 William Compton hejn<! to have an extent for
' a debt of 1200/. the Lord Chancellor staid it,
' and wrote his letter; upon which part of the
' debt was paid presently ,and part at arotureday.
* The Lord Chancellor hereupon sends to bor-
' row 500/. and because Compton was to psy
' 400/. to one Huxley, his lordship requires
4 Huxley to forbear six months, and hereupon
' obtains the money from Compton. Themo-
' ney being unpaid, suit grows between Huxley
1 and Compton in Chancery, where his tori
' ship decrees Compton to pay Huxley the
' debt, with damage and costs, when it was in
' his own hands :' — I do declare, that in my
conscience the stay of the extent was just, be-
ing an extremity against a nobleman, by wbom
Compton could be no loser. The money was
plainly borrowed of Compton upon bond with
interest, and the message to Huxley was only
to intreat him to give Compton a longer day,
and in no sort to make me debtor or responsi-
ble to Huxley; and therefore, though I was not
ready to pay Compton his money, as I would
have been glad to ha\e done, save only 100/.
which is paid, I could not deny justice to Hot-
ley in as ample manner as if nothing had been
between Compton and me : But if Comptoa
hath been damnified in my respect, I §m <•
consider it to Compton.

1 109] STATE TRIALS, 18 Jambs I. 1620.-; for Bribery and Corruptim. [1110

To the sixteenth Article of the Charge, ?iz.
4 In the Cause between sir William Bronlcer and
4 Awbrey, the Lord Chancellor received from
4 Awbrey lOO/Zr—Ido confess and declare, that
the money was given and received; but the
manner of it I leave to the witnesses.

To the seventeenth Article of the Charge, viz.
4 In the lord Montague's cause he received
4 from the lord Montague 6 or 700/. and more
4 was to be paid at the ending of the cause:' —
I confers and declare, there was money given,
and as I remember, to Mr. Bevis Thefwall, to
the sum mentioned in the article, after the
cause was decreed; but I cannot say it was
ended, for there have been many orders since
caused by sir Francis Inglefield's contempts:
and I do remember, that when Thelwall brought
the money, he said, that my lord would be yet
farther thankful if he could once get his quiet.
To which speech I gave little regard.

To the eighteenth Article of the Charge, viz.
4 In the Cause of Mr. Dunch, he received from

* Mr. Dunch 200/.' : —I confess and declare, that
it was delivered by Mr. Thelwall to Hatcher
my servant, for me, as I think some time after
the Decree; but I cannot precisely inform my-
self of the time.

To the nineteenth Article of the Charge, viz.
4 In the Cause between Reynell and Peacock,
' he received from Reynell 200/. and a dia-
4 mond-ring worth 5 or 600/.' : — I confess and
declare, that at my first coming to the seal,
when I was at Whitehall, my servant Hunt
delivered me 200/. from sir George ReyneH,
my near ally, to be bestowed upon furniture of
my house ; adding, farther, that he had re-
ceived divers former favours from me : And
this was, as I verily think, before any' suit
began. The ring was received certainly pen-
dente- lite ; and though it were at New- Years'-
tide, it was too great a value for a new year's
gift, though, as I take it, nothing near the value
mentioned in the Article.

To the twentieth Article of the Charge, viz.
4 That he took of Peacock e 100/. without in-
' terest, security, or time of payment:' I con-
fess and declare, that I received of Mr. Pea-
cocke 100/. at Dorset-house, at my first coin-
ing to the seal, ns a present ; at which time no
suit was begun : ana at the summer after I sent
ray then servant Lister to Mr. Rolfe, my good
friend and neighbour, at St. Albans, to use his
means with Mr. Peacocke (who was accounted
a monied man) for the borrowing of 500/. and
after by my servant Hatcher, for borrowing of
500 more ; which Mr. Rolfe procured, and told
me at both times it should be without interest,
script, or note, and that I should take my own
time for payment of it.

To the twenty-first Article of the Charge,
Yiz. ' In the cause between Smithwick and
4 Welsh, he received from Smithwick 200/.

• which was repaid :' — I confess and declare,
that my servant Hunt did upon his account,
being my receiver of the fines upon original
writs, charge himself with 200/. formerly re-'
ceived of Smithwick, which after that I had

understood the nature of it, I ordered him to
repay, and to defalk it out of his accora* ts.

To the twenty-second Article of the Charge,
viz. ' In the Cause of sir Henry ltusnell he
' received money from RuswelL, but it is not
' certain how much :' I confess and declare, that
I received money from my servant Hunt, as
from Mr. Ruswel), in a purse: And whereas
the sum in the Article is indefinite, I confess
it to be 3 or 400/. and it was about a month
after the cause was decreed : in which decree
I was assisted by two of the judges.

To the twenty-third Article of the Charge,
viz. ' In the cause of Mr. Barker, the Lord

* Chancellor received from Barker 700// I con-
fess and declare, that the sum mentioned in the
Article was received from Mr. Barker some
time after the decree passed.

To the 24th, 25th, and 26th Articles of the
Charge, viz. the 24th ; ' There being a refer-

* ence from his majesty to his lordship of a
' business between the grocers and the apothe-

* caries, the Lord Chancellor received of the
4 grocers 200/.' The 25th Article ; « In the
'same cause be received of the apothecaries,

* that stood with the grocers, a taster of gold,
' worth between 4 or 500/. and a present of
' ambergrease.' And the 26th Article ; ' He
' received of a new company pf apothecaries,
' that stood against the grocers, 100/.' To
these I confess and declare, That the several
sums from the three parties were received : and
for that it was no Judicial business, but a con-
cord of compotiuon between the parties, and
that as I thought all had received good, and they
were all three common purse?, I thought it the
less matter to receive that which they volunta-
rily presented ; for if I had taken it in the
nature of a corrupt bribe, 1 knew it could not
be concealed, because it needs must be put to
account to the three several Companies, r

To the twenty-seventh Article of the Charge,
viz. ' He took of the French merchants 1000/.

* to constrain the Vintners of Loudon to take
' from them 1500 tuns of wine: To accomplish

* which he used very indirect means, by colour
' of his office and authority, without bill or suit
' depending, terrifying the Vintners by threats,
' and by imprisonment of their persons, to buy
' wines, whereof theyltod no need nor use, at
' higher rates than they were vendible :' I do
confess and declare, that sir Thomas Smith did
deal with me in behalf of the French company,
imformtng me that the Vintners, by combine^
tioo, would not take off their wines at any rea-
sonable prices; that it would destroy their
trade, and stay their voyage for that year ; and
that it was a fair business, and concerned the
state: and he doubted not but I should receive
thanks from the king, and honour by it; and
that they would gratify me with. a thousand
pounds for my travail in it. Whereupon I
treated between them by way of persuasion,
and to prevent any compulsory suit, propound-
ing sucn a price as the Vintners might be
gainers 6/. in a tun, as it was then maintained
unto me. And after the merchants petitioning

1111] STATE TRIALS, 18 Jsmu I. 1620.— frocetclmgi agaaut Lord Boon, [11W

lo the king, and bis majesty recommending this
business auto me as a business that concerns
his customs anil the navy, I dealt more ear-
nestly and peremptorily in it, and as I think,
restrained in the messenger's bond for a day or
(wo some that wera the most stiff; and aftor-
war.lj ttie merchants presented me with 1000/.
out of their common purse; and acknowledg-
ing ilitin selves, that 1 had kept them from a
kind of ruin, and still maintaining to hm that
the Vintners, if tbejnere not insatiably minded,
had a very competent gain. These ore the
merits ot' (he cause, as it then appeared to me.

To the twenty eighth Article of tue Charge,
viz. ' The Lard Chancellor hatli given way to
' great Exactions by his servants, both in re-
1 spect of private seals, and otherwise for seal-
' ing of injunctions :' — I comet* it was a great
fault of uegk ct in me, that I looked no bettei
to my servants.

" This Declaration I have made to your lord-
' .that

would impute it

any thing; for 1 do n

i again

Si!

infess, that ii

the points charged upon me, though they should
be taken as myself hare declared them, there i*
a great ileal of corruption and neglect, for which
I am henrtily sorry, and submit myself to the
judgment, grace and mercy of the Court. — For
extenuation, I will use mine concerning the mat-
ters themselves ; only it may plea'e your lord-
ships, out of your nobleness, to cost your eyes
ol compassion upon my pcison and estate: i
was never noted tor an avaricious man, and the
apostle saith, ' That coveto unless is the root ol
' all evil.' 1 hope alio that your lordships do
rather find me in the state ol grace, for that in
all these particulars there ere few or none that
are not almost (wo years old ; whereas those,
that hnve nn hnbit of Corrupt ion, do commonly
wax worse. So that it hath pleased God Q
prepare me by precedent degrees of amendment
to my present penitency : and for my estate, ii
is so mean and poor, as my care is now chiefly
to natisfy my debt*. — And so fearing I have
troubled your lordships too long, I shall con-
clude with an humble suit unto you, That if
your lordships proceed to Sentence, your Sen-
tence may not be heavy to my ruin, but gracious
and mixed wirh mercy: and not only so, but
that you would he noble intercessor* for me It)
bis majesty likewise, for hn grace and favour.
Your lordships* most humble servant and sup-
pliant, Fuxc. St. At baks, Cane."

The Lords having lieard this Confession and
Submission read, these Lords under- named, vhb
the e«il of Pembroke lord chamberlain, the
earl of Arundel, the earl of Southampton, the
bi-hopot Durham, the bishop of Winchester,
the bishop of Coventry and Litchfield ; the lonl
Weiiiworth, the lord Cromwell, the lord Shef-
field, the lard North, the lord Chaudois, the
lord Hunsdun, were sent to linn the said Lord
Counsellor, and shewed him the said Conft

.ion, and told him, that tin Lord* do o

it to be an ingenuous and fall Confession ; and
demanded ufTum, whether it be bis own band

■ I at i* subscribed to tbeaamc, and whether be
... ill stand to it or not. Unto which the said
Lord Chancellor answered, ' My lords, it amy

■ act, my hand, my heart ; I beseech your lurd-
' ihip* to be merciful to a broken reed.' The
which Answer being reported In tbe bouse, it
was agreed by the house to mote hi* majesty to
sequestertheSesl: and the Lords intreaied the
prince's highness that he would be pleased to
move the king ; whereunto hi* highness conde-
scended. And the 'time Lord* which went lo
take the acknowledgment of Che Lord Cbau-
celWs hand, were appointed to attend the
prince to the king, with some other lords added.
Andhisiniyesty did not only sequester ibe Seal,
bat awarded a new C.mmi.sioii unto tbe Laid
Chief Justice, to execute the place of tbe Chan-
cellor, or Lord Keeper.

This was on the 1st of Mays andonWednes-
day, the 3d of May, the said Commission being
read, their lordships agreed In pruceed to sen-
tence the Lord Chancellor to-morrow morning.
Wherefore ihe Geutlemau Usher, and Serjeant
nt Arms, attendants on the upper house, were
commanded to go and summon him, (be wd
Lord Chancellor, to appear in person before
their lordships to-morrow morning by nineof
the clock. And the said Serjeant at Anns »ai
commanded to take hi* mace with bim, and to
shew it unto his lordship at the said summons!
hut (hey found biin sick in bed ; and being sum-
mnned, he answered, that he was sick, und pro-
tested that he feigned not .this. for any excuse,
for if he liad been well he would willingly bate

given against tbe Lord Chancellor.

e Lords resolved to proceed ootwitlntsn^-

igainst the said Lord Chancellor. And

therefore, on Thursday, the 3d of May, their

lordships sent their Message to thecommotnta

' That die
i give Judgment against

Lords
lord v

e leidy

Albans, Lord Chancellor, if they, with their
Speaker, will come to demand it." And the
Commons being come, the Speaker came to the
bar; and, making three low obeisances, said i
' The k Might*, citizens, and burgesses of the
' commons house of parliament, having mad*
' complaints unto your lordships of many exur-
1 bitant offence* of Bribery and Corruption ccas-
' milted by the l»rd Chancellor, understand
1 that your lurdsbii.s are ready to give Judi-

* ment upon him for ihe same ; Wherefore I,

* their Speaker, in their name do humbly de-
,' mand, and pray Judgment against bim tht
' said Lord Chancellor, as tbe nature of his of-

* fence und demerits do require,'

The Lord Chief Justice answered: 'Mr.
' Speaker, Upon complaint of the Cniraoou
' against the vise. St. Albans, Lord Chancellor,
' this high Court hath thereby, and by his o»s
' Confession, found aim Guilty of toe Crbmi

4 and Corruptions complained of by the Oro-
' mons, and of sundry other Crimes and Cor-
4 ruptions of like nature.' And therefore this
4 high Court bavins first summoned him to at-

* tend, and having his excuse of not attending,
4 by reason of infirmity and sickness, which he
4 protested was -not feigned, or else he would
4 most willingly have atteuded, doth neverthe-
4 thetess think fit to proceed to Judgment: and
4 t heretoi e this high Court doth adjudge ;

44 That the lord viscount St. Albans, Lord
44 Chancellor of £ngland, shall undergo a fine
" and ransom of 40,000/. — That lie shall be im-
44 prisoned in the Tower during the king's plea-
44 sure. — That he shall fur ever be uncapable of
44 any office, place, or employment, in the state
44 or commonwealth. — That he shall never sit
44 in parliament, nor come within the verge of
44 the Court." — ' This is the Judgment and Ite-
4 solution of this Iiigh Court/*

* About three years afterwards, he wrote to
king James the following letter :

4 To the Kihg.
4 Most gracious and dread Sovereign ; Before
4 I make my petition to your majesty, I make
my prayers to God above, pec tore ao itno, that
if I have held any thing so dear as your ma-
jesty's service, nay, your heart's ease, and
4 your lionour's, I may be repulsed with a de-

* nial : but, if that hath heen the principal with
4 me, that God, who knoweth my heart, would
4 move your majesty's royal heart to take com-
4 passion of me, and to grant my desire.

4 I prostrate myself at your majesty's feet, I,
4 your ancient servant, now 64 years old in
4 age, and three years five months old in rai-
4 scry. I desire not from your majesty means,
4 nor place nor employment, but only, after so
4 long a time of expiation, a complete and total
4 remission of the sentence of the upper-house,
4 to the end that blot of ignominy may be re-
4 moved from me, and from my memory with
4 posterity ; that 1 die not a condemned man,
' but may be to your majesty, as I am to God,
4 uova creatura Your majesty hath pardoned
4 the like to sir John Bonnet, between whose
4 case and mine, not being partial with myself,
4 but speaking out of the general opinion, there
4 was as much difference, I will not say as be-
4 tween black and white, but as between black
4 and grey, or ash-coloured : look therefore
4 down, dear sovereign, upon me also in pity.
4 1 know your majesty's heart is inscrutable for
4 goodness; and my lord of Buckingham wus
4 wont to tell me, you were the best natured
4 man in the world ; and it is God's property,
4 that those he hath loved, he loveth to the end.
i Let your majesty's grace, in this my desire,
4 stream down upon me, and let it be oat of
4 the fountain and spring-head, and ex mtro
4 motu, that, living or dying, the print of the
4 goodness of king James may be in my heart,
4 and his praises in my mouth. This my most
4 bumble request granted, may make me live a
4 year or two happily ; and denied, will kill me

20.— /or Bribery and Corruption. [1114

Thus be lost the privilege of his Peerage, and
his Seal; and it was for some time doubtful,
whether he should be allowed to retain his
Titles of Honour, which uas all he did, having
only a poor empty being left, which lasted not
long with him, his honour dying before him.
Though he was afterwards set at liberty, and
had a Pension from the king, he was in great
want to the very last, living obscurely in his
chambers at Grays-inn, where his lonely and
desolate condition so wrought upon his melan-
choly temper, that lie pined away; aud after
all his height of abundance was reduced to so
low an ebb, as to be denied beer to quench his
thirst : for having a sickly stomach, and not
I liking the beer of the hou*e, he sent now and
then to sir Fulk G revile lord Brook, who lived
in the neighbourhood, for a bottle of his beer;
and, after some grumbling, the butler had or-
ders to deny him. So sordid, says Wilson, was
the one, that advanced himself to be called
sir Philip Sidney's friend, aud so friendless was
the other, after he had dejected himself from
what he was.

He died on the 9th of April, 1626, being
Easter-day, early in the morning, in the 66th
year of his age, at the earl of Arundel's house
in High gate, near London, to which place he
had casually repaired about a week before. The
distemper of which he died was a gentle fever,
accidentally accompanied with a violent cold ;
whereby the defluxion of rheum was so great
upon his breast, that he was quite suffocated.
He was buried in St. Michael's church at St.
Alban's, being the place directed for his burial
by his last Will, both because his mother had
been buried there before, and because it was
the only church then remaining within the
precincts of old Verulam ; where he hath a
monument erected for him of white marble, by
sir Thomas Meautys, formerly his lordship's
secretary, afterwards clerk of the king's privy-
council, with an inscription composed by the
famous sir Henry Wotton.

Howell thus writes of Bacon: " My lord
chancellor Bacon is lately dead of a long lan-
guishing weakness ; he died so poor that he
scarce left money to bury liim, which, though
he had a great wit, did argue no great wis-
dom; it being one of the essential properties
of a wise man to provide for the main chance.
I have read that it had been the fortunes of all
poets commonly to die beggars, but for an
orator, a lawyer, and philosopher, as lie was, to
die so, is rare. It seems the same fate befel

4 quickly. But yet the last thing that will die
* in me, will be tlit heart and affection of your
4 majesty's most humble, and true devoted ser-
4 vant, F*. St. Alba*. July 30, 16**.'

King James readily granted him a full and
entire pardon of his whole sentence. Notwith-
standing this pardon, he was never again sum-
moned to parliament in this reign, but he was
summoned to the first parliament called by
Charles 1. Sec 2 Cobb. Pari. Hist. p. 38.

1115] STATE TRIALS, 18 James I. 1610.— Proceedings again* Lord Bacon, [1116

bim that attended Demosthenes, Seneca, and
Cicero (all gre.it men), of whom the two first
fell by Corruption. The fairest diamond may
have a flaw in it, but I believe he died poor
oat of a contempt of the pelf of fortune, as also
out of an excess of generosity, which appeared
as in divers other passages, so once when tlie
king had sent him a stag, be sent up for the
under- keeper, and having drank the king's
health to him in a great silver gilt bowl, he
gave it him for his fee. lie wrote a pitiful
Letter to king James not long before his death,
and concludes ' Help me clear sovereign lord
' and master, and pity me so far that I who have
4 been worn to a bag, be not now in my age
* forced to bear a wallet, nor that I who desire
1 to live to study may be driven to stud? to live;'
which words, in my opinion, argued a little ab-
jection of spirit as his former Letter to the
prince did of profanene*s, wherein he hoped
that * as the Father was his Creator the Son will
be his Redeemer.' 1 write not this to derogate
from the noble worth of the lord viscount Ve-
rulam, who was a rare man, a man recondite,
scientio et ad salutem literarum natus, and I
think the eloquentest that was born in this
isle." James Howell to Dr! Pritchard, Jan. 6,
1625 (1626, N. S.) Letters, B. 1. § 4, Let-
ter 8.

It will be observed that this Letter, unless
the date be misprinted, falsifies the account
given above of rite time of Bacon's death. The
dates to Howell's Letters are not to be depend-
ed on. Dr. Birch's account of the time of Ba-
con's death, agrees with that given in the text:
but Biicli has not given very great accuracy to
his dates. He says that Bacon was born Jan.
S2d, 1561, and entered of Trinity College,
Cambridge, June 16th 1573, in his twelfth
year. Now in June 1573, Bacon was in his
thirteenth year, if he were horn Jan. 22d, 1561,
U.S.; and in his fourteenth year if born on
Jan. 22d, 1561, O. S. Dr. Birch in the life of
Bacon, prefixed to the Doctor's edition of Ba-
con's Works, expresses an opinion that the re-
presentations of his poverty are exaggerated.
Bacon** Will certainly indicates a conditiou far
removed from indigence. It is printed at the
end of the third volume of Birch's edition.

It must, however, be observed, that though
in his Will he named six executors, none of
them would undertake the office ; for on July
23d, 1627, administration « juxta tenorem et
' effectum testa Memi/ was granted to two of
his creditors. — Itushworth thus speaks of Ba-
con : " This learned peer, eminent over the
Christian world for his many writing extant in
print, was known to be no admirer of money,
yet had the unhappiness to be defiled there-
with : He treasured up nothing, either for him-
self or his family ; for he both lived and died
in debt; he was over indulgent to his servants,
and connived at their taking*, and their ways
betrayed him to that error ; they were profuse
and expensive, and had at command whatever
be was master of. Th * gifts taken '"ere, for
the mo*t part, for intetfocutory Or^;rs; his

Decrees were generally made with so much
equity, that though gift* rendered bim suspect-
ed for injustice, yet never any Decree made
by him was reversed as unjust, as it hath been
observed by some knowing in our laws/'

■ i i i

As to bishop Field, on May 16th a message
was sent from the commons to remind the lords
of the Complaint, against the bishop of Lan-
daff for an offence proved to the hou^e of com-
mons by the testimony of Randolph, Daven-
port, and divers other witnesses, wherefore the
commons demand Judgment against him for
the same answer. The lords have been busied
with many matters of great importance, but
they shall hear from them shortly touching the
said complaint.

May 30.

The first thing of moment the Lords went
upon this day, was to hear the Report of the
earl of Huntingdon, one of the committee ap-
pointed to take Examinations concerning Dr.
Field, now bishop of Landaff. A collection
was made thereof, which, with divers letters,
sent up by the Commons, concerning that
cause, were delivered by his lordship into court.
The bishop having withdrawn, the king's Ser-
jeant, Crewe, came to the clerk's table and
read the said collection in hac verba •— " Edw.
Egerton having a suit in chancery with sir
Rowland Egerton, for lands of good value ; and
supposing be had some hard measure therein,
was commended to Dr. Field, now lord bishop
of Landaff, for the procuring of some great
friends to assist him in this cause. Upon con-
ference between Edw. Egerton and the lord
bishop about this matter, and to the end to
procure such assistance and friendship, he ac-
knowledged a recognizance of 10,000/. to the
bishop, and one Randolph Davenport a gen-
tleman belonging to the late lord chancellor ;
which was dated March 13th, in the 16th year
of this reign. Whereupon there was a draught
of a defeasance conceived, but not perfected,
as it seems; by which it was agreed between
them, That if, by means or mediation of the
said commissees, or either of them, the said
Egerton should prevail, either by decree in
chancery, or at common law, to recover so
much of the ancient inheritance of the said
Edward, as is mentioned in the defeasance, then
to pay the lord bishop or Davenport, or either
of them, 6000/. within two years after. — On
the 15th of March 1618, iJr. Field writes a
letter to Edw. Egerton, in the nature of a de-
feasance of that recognizance, which con-
taineth, that the sum of 6000/. is for gratuities
to such honourable friends as shall be made it
his business, if he recover, by the power of those
friends, his ancient inheritance ; or, otherwise,
a third part of whatsoever shall be added to
that which had been formerly awarded to the
said Edward in chancery. And, if nothing was
done,u.;n he promised, i« verbo tacerdotu, to
return the recognizance. — After this the lord
bishop writes another letter without date, to
Mr. Egerton, letting him know thereby, that

HI?] STATE TRIALS, 18 James I. 1620.-/*- Bribery and Corruption. [1119

there was a stay made of decreeing the lord
chancellor's award till next term, by the means
of one of my lord chancellor's gentlemen, who
would have conferred with Mr. Egerton, but
that his leisure permitted him not then to do
it ; he therefore required some further warrant
and direction to proceed in his behalf. Un-
derneath this letter one Woodward, brother-
in-law to Mr. Egerton, writes this postscript,
rbat he thinks bis cause will do well, and that
be hath assured this gentleman he shall find
Mr. Egerton faithful in his promise, and wish-
eth he would write back to Woodward to that
purpose. — Woodward writes another letter to
Mr. Egerton without date, letting him know,
that Dr. Field is sorry my lord hath not sent
an answer as he expected, but that my lord
chancellor shall be moved this night for a stay
of the decree ; which he hopes to get by such
means as he shall use ; and that he hath as-
sured him Mr. Egerton would perform his pro-
mise.—Davenport being examined in this nigh
court, touching the sharing the 6000/. betwixt
him, Butler, the bishop, and others, saith, He
himself should have had nothing ; Butler was
to have 3000/. and 1000/. was thought fit to
be given to the lord chancellor ; but his lord-
ship knew not of it, and Butler dared not to
move it. Davenport and Butler meant to have
shared that 1000/. For the other 3000/. he
knew not bow it should be shared. The mat-
ter promised was a letter from the lord ad-
miral, and a reference from the king to the
lord chancellor. — Francis Joyner being exa-
mined in this cause, confesseth, he was the
meant to make Mr. Egerton and Dr. Field
acquainted ; and that the -doctor had confer-
ence with Butler and Davenport about Mr.
Egerton's business ; and that the doctor drew
in the lord Haddington to be a furtherer of it.
He spoke to the recognizance ; and that the
doctor confessed he was trusted from the lord
Haddington, and that his lordship was to dis-
pose of the money at his pleasure. Tristram
Woodward being likewise examined, confessed,
Joyner told him Dr. Field had friends at court ;
and bow Mr. Egerton was drawn to the doctor's
bouse. The recognizance was taken for But-
ler and the lord Haddington, as he thinks ; but
out of it the doctor expected recompencc, as
he heard amongst them : and confessed he
wrote the postscript to Dr. field's letter sent
to Mr. Egerton.— -Edw. Egerton saith, " That
he agreed with Dr. Field tor the recognizance,
that he should have his land decreed to him :
that 0000/. was to be paid on the event of the
suit. He was to pay the money to Dr. Field
and Davenport ; but how much each should
hare he knoweth not. He further said, That
Woodward, bis brother-in-law, and Dr. Field,
procured him to acknowledge the recogni-
zance ; but he did not pay the charge of it :
that Dr. Field told him he would bring bim to
one Butler, who would procure an order from
my lord chancellor for his relief in the cause
at be would desire : thereupon the doctor de-
manded a recognizance of 10,000/. for pay-

ment of 6000/. when this examinant should
have such an order from the court f»s he de-
sired. The recognizance was entered accord-
ingly; after which, this* examinant finding no
good thereby, demanded back his recogni-
zance ; when, after many delays, and a year's
distance of time, he had the same delivered.
— Lastly, that Woodward told him Dr. Field,
capt; Field his brother, and Butler should have
shared the money amongst them ; but how, he
knoweth not.1'

Then the king's Serjeant read also the Proofs,
which consisted of all the letters and examina-
tions before mentioned. After which the bishop
of Durham* stood up, and, in a speech, re-
peated the manner how this matter was first
complained of by the commons to this house,
with the several proofs thereof; but addedf
" That since there was nothing proved but an
intetit, at the most, he moved that the consi-
deration thereof be referred to the archbishop
of Canterbury, and he to give the bishop an
admonition for the same in the convocation
house." The archb.shop (George Abbot) then
rose up and said, " That Dr. Field, the now
bishop of LandafF, could not be excused from
Brokage in Bribery; for which be was* to
blame: but hoped that he might bear his fault
as Dr. Field, and not as bishop of Landalf; and
that, if it was referred to him, he would do that
which belongs onto him."

Whereupon it was ordered, That the affair
of the lord bishop of I .aoduff should be referred
to the archbishop of Canterbury, and he to be
admonished by his grace in the Convocation
House, before the bishops and clergy there.
The Lords also taking into consideration the
complaint of the Commons, touching this mat-
ter, agreed upon a message to be *em to that
house, to this purpose: viz. " Whereas the
bouse of commons iuformed this house of a
great misdemeanor committed by Dr. Field,
now bishop of LondaflF, and hath also sent since
to demand judgment in that cause ; the Lords
having taken full examination thereof upon
oath, do not find it proved in the same manner
as, it seem*, they were informed by exami-
nations taken in their house. And, for further
satisfaction of the commons therein, their lord-
ships have sent them the examination of Ran-
dolph Davenport." — " Ans. The commons re-
turned great thanks for their lordships honour-
able and just proceedings in the cause of the
lord bishop of Land aff, mid for sending the ex-
amination of Davenport; by which it doth
appear, that his examination, taken by them,
'doth d lifer much from that taken upon his oath
before their lordships." — Then the question
was put, Whether the said bishop should take
his place in the house before he received his
admonition from the archbishop or not?

* Richard Neile, who had himself been
complained of by the Commons, when bishop
of Lincoln, for some expressions in the house
of lords, tending to advance the prerogative
royal. See No. 98, p. 885.

1119] STATE TRIALS, 18 J. L 1620.— Propcdingt against Sir G. Mmpakm, [1190

Agreed, per pturts, that he should : where-
upon his lordship was called in by the gentle-
si an usher, and went to bis place. Thus ended
this affair.

The following characteristic Letter from
this bishop Field to Buckingham is printed in
the Cabala, p. 117.

" My gracious good lord; In the great library
of men, that I have studied these many years,
your grace is the best book, and most classick
author, that I have read, in whom 1 find so
much goodness, sweetness and nobleness of na-
ture, such an heroick spirit, for boundless
bounty, as I never did in any. 1 could instance
in many, some of whom you have made deans,
some bishops, some lords, and privy-counsel-
lors ; none that ever looked towards your grace
did ever go away empty. I need go no further
than myself, a gum of the earth, whom you
raised out of the dust, for raising but a thought
so high as to serve your high d ess. Since that,
I have not played the truam, but more diligent-
ly studied you than ever before : and yet, dunce
that I am, I stand at a stay, aud am a non
proficient, the book being the same that ever
it was, as may appear by the great proficiency
of others. 1 his wonderfully poseth me, and
sure there is some guile, some wile, in some of
my fellow students, who hide my book from
me, or some part of it ; all the fault is not in

my own hlockishness, that I thrive no better;
I dtice feared this before, that some did me ill
offices. Your grace was pleased to protest no
man had ; and to assure me no man could. My
heart tells me it hath been always upright, and
is still most faithful unto you. I have examin-
ed my actions, my words, and my very thoughts,
and found all of them, ever since, most sound
unto your grace. Give me leave, to comfort my-
self with recordation of your loving kindue»sesof
old, when on that great feast day of your being
inaugured our chancellor [of Cambridge] ray
look was your book, wherein you read sadness,
to which I was bold to answer, I trusted your
grace would give me no cause. You replied
(with loss of blood rather.) But God forbid so
precious an effusion. (I would rather empty all
uiv veins than you should bleed one drop,)
wfien as one blast of your breath is able to
bring me to the haven where I would be. My
lord, I am grown an old man, and am like old
household stuff, apt to be broke upon often re-
moving. I desire it therefore but once for all,
he it Ely, or Bath and Wells; and I will spend
the remainder of my days in writing an history
of your good deeds to me and others, whereby
I may vindicate you from the envy, and oblo-
quy of tins present wicked age wherein we live,
and whiht 1 live in praying for your grace,
whose I 'am, totally and finally.

" '.Theopuilus Landavek."

116. Proceedings in Parliament against Sir Giles Momfesson, a
Monopolist and Patentee : 18 James I. a.d. 1620. [Journals
of both Houses. 1 Cobb. Pari. Hist. 1 198.]

y^fE shall now present the reader with a
Narrative of the Proceedings against sir Giles
Mompesson, a member of parliament, a Projec-
tor, and a great Dealer and Patentee. This
man the Commons convened before them, and
ordered him into custody of the scrjeant at
arms; but he, being conscious of his guilt,
found means to make his escape, and fled be-
yond sea. The particulars of this affair will
best appear from the Journals of the Lord*, to
whom the Commons carried their Complaint
against the said sir Giles, and others con-
cerned with him in the execution of bis pro-
jects : all the judicial proceedings both against
this man, and others of much higher rank, in
the sequel, being transacted before this su-
preme Court of Judicature.

March 3, 1620. A Message from the Lower
House was delivered to the Lords by sir Edw.
Coke, attended by several knights, citizens and
burgesses, to this effect :

" That the House of Commons had entered
into a due consideration of divers heavy Griev-
ances, and do desire a Conference about
them ; leaving tlie time, number and place to
their lordships appointment. He further added,
as part of what they had enjoined him to say,
that whilst their house was thus, amongst them-

selves, in treaty and advise, the principal offen-
der, sir Giles Mompesson,, was escaped. There-
fore, the Commons did desire strict scrutiny
should be made for finding him out within the
realm/' The messengers being withdrawn, the
Lords agreed to the Conference : the number,
the whole house : the time and place, March
5th at two in the afternoon, in the Painted
Chamber. Sir Edw. Coke and the rest were
again called, and the Lord Chancellor ac-
quainted them, That the house had agreed to
meet with the Commons, as above ; and that
their lordships would give their best aid and
assistance for finding out the offender. On
which Answer, sir Edw. desired to explain his
Message a little further; and declared that the
Commons were not fully provided for a Con-
ference so soon : but trial his meaning was,
That if their lordships would be pleased to
yield to one, then the other house would pre-
pare the business so as it might give least in-
terruption to their lordships greater affairs:
and, when they were ready, would return and
acquaint their lordships with it. The Chan-
cellor answered, That the lords would suspend
the time, till the Commons were ready fur
the Conference.
Several proposals were thaa mad* lor the

1131] STATE TRIALS, IS James I. 1620 a Monopolitt and Patentee. (U2S

apprehending of sir Giles Mompesson ; and a
Menage watt sent to the Lower House to ac-
quaint them, " That they had appointed a
committee of 40 lords, of which the Prince was
the first, to confer with a number of tlte Com-
mons, immediately, about that point." The
lord Zouch, warden of Uie Cinque* Ports, wus
ordered to send hi" warrant thither, to search
for and apprehend the said sir Giles, if he should
attempt to escape that way. The two lords
presidents, of Wales and of the Council tit
York, were ordered to cause strict search to he
made in the several ports under their charge.
Tlie Lord Treasurer had the same charce given
him, to take care that nil officers of the Customs
and other officers within the ports, havens ami
creeks of this land, he warned of i his business.
Lastly, orders were given to the Lord- Admiral
that he should instruct all vice-admirals Mid
other maritime officers under his jurisdiction,
to make the like search for this extraordinary
runagate.

All these orders and directions of the Lords
being told to the Committee of the Common*,
they approved of them, with thanks; and only
desired that a more private search might he
made for the offender. Accordingly, a war-
rant was ordered to be drawn, as from the
Lords, and signed by the Chancellor, ns their
Speaker: and the luni chnmbeilaiu, the earls
of Arundele and Southampton, the lords Iluns-
den and Houghton, were appointed for that
purpose. Which warrant, was ordered t-> he
directed to the deputy-clerk of the crown, and
clerk of parliament, and to all mayors, bailiff*,
&u. — In the midst of these orders and direc-
tions, the Lord Admiral, the marquis of lh'.ck-
inghuni, declared openly to the house how much
he had been deceived and abused by this offen-
der, sir Giles Mompe«:.ou ; who, but very
lately, had wrote to him, protesting his inno-
cency, urhrming trnt wi;.it was objected against
him was but matter of cavil, and that he desir-
ed only a legal trial by due course of law.

March 5. The Lord Chancellor acquainted
the Lord?, that the deputy-clerk of the crown,
and the clerk of parliament, with others, had,
according to their lordships direction, made
search into the several houses of sir Giles Mom-
pessrm, sir Francis Mitchell, and in the house
called and used as for the exercise and execu-
tion of letters patents, concerning Gold and
Silver Thread, &c. in Wood-strert; and thai in
each search the said clerks had brought away
divert books and writings, concerning such
matters wherewith the said sir Giles srandcth
charged: which they had sealed up, according
Co the direction of the house. The Lords or-
dered that the said things so sealed up, should
be safely kept by the clerk of parliament, until
their lordships should br pleased to give fur-
ther direction, about delivering them to such
members of that Imuse as should be asiiuned
to receive the said books and papers, for the
better manifestation rd' the truth in Mich mat-
ters as the said sir Giles stood charged with.

Merck 6. The lords received a message
▼0L, u.

from the commons, " That they had taken no-
tice of some Warrants, issued by their lord-
ships, for search in ceitain places for papers
concerning sir Giles Mompe^on. That the
parties, therein employed, had found and
brought in certain papers sealed up, also, a
trunk and a bag in w hich other papers and hooks
; are sealed up, which tiny dt sue may he deli-
I vered to them. '1 hat one question had been
! made by the ptrsi-us so employed, concerning
their power, and. they desire luither wariant,
from the lord**, to anthoiizetliem to open locks,
doois or chests, that their »eurch may be more
enlarged." Anwcr, " '1 hat the lords do prunt
the request of the commons in all its points;
and will cive direction for theproner additional
J word* to he added to the wairanL*'
I March 12th. 'I he Loid Chancellor rrport-
I ed what p:>«od at the lust Conference of both
, houses; the inducement of which way, to
i cl< ar the kin<!*« hoi, our touching Giants to sir
G Ji s Mompes->on, and tlie means of procuring
the same. The effect of this Conference wa«,
" That the king, on the Petition of the said bir
Gilts, to ha\e a iV.lMit to reform a I- uses in
I divers lunktr-pers, and a w arrant to compound
J for the penalty of obsolete laws touching the
prices of horse-meat, had icfened the same to
several judges, lor the point of law ; and to di-
vers lord>, for toe point of conveniency. That
his majesty hud shewn the like care, in granting
the Patent for Monopoly of the sole making of
Gold and Silver Thread. That sir Henry Yel-
verton, Attorney-General to the king, had ad-
vised the su'iie to he returned, into his majesty's
own Lands-, and then by indentures to autho-
rize divers per1 on* to manage it ; but that this
also was referred by his majesty to the consi-
deration of several of his council. That the
benefit arising (<> the kinj* was made over to
others, pro tempore ; thai the authority grant-
ed by the kiui;, was much abu.-td in the exe-
cution l here, t, to the intolerable grievance of
the subject ; and lastly, that much imposture
was used in the trade."

March 15th. The lord Wentworth moved,
audit was ordered, That no bill but the Piince't
bill should be read, until the business of sir
Giles Moinpessou be pasi and detei mined.
The home to sit on convocation davs, for the
more speedy dispatch ot'thar huHm-s*.

March $r£d. The Lord CltuwUrlaiii, one of
the committee appointed to enquire into the
Grievances of the Patent concerning; Jims and
Hostelries, reported, •• That in the said Patens
were three things considerable : 1st, the legali-
ty of it granted to iMompessun ; but in that the
committee had no power to jud^e. Next the
inconvenience. Lastly, the abuses in the me-
cation. That the incoin en iciire appeared in
the patent, where tin' indues are made subject
I to a buse of i*e j$. ; iirul, m the execution, be-
; cause that sir Giles Motu prison affronted the
' justices of the peace, and iMeaUned tevt-rel of
j them wiili the council-Lab1?. And, htcalfea
I there were ce. tilica Ws sent him, fnim thne t#
' time, of those Alehuu>e-kee|>en, who were sup*
| 4c

1193] STATE TRIALS, 18 J. I. 1G20.— Proceedings against Sir G. Mompesson, [11%

pressed for ill behaviour, he made this use of
it, to make them Inn-keepers. That he grant-
ed licences to divers hase fellows to keep inns ;
and sued out processes against 4000, for keep-
ing inns without licence, and for the price of
horse-meat, of which he only tried two suits.
Lastly, his lordship delivered a collection of the
several abuses and the proofs of them."

The Earl of Arundel reported, " That the
consideration of the Grievances by the Patents
of sole Manufacturing Gold and Silver-Thread,
complained of, being committed to his lord-
ship and other lords joined with him in com-
mittee, That they had often met, the business
being attended with great difficulty, and con-
sisted of many particulars. That they had ex-
amined many witnesses, and more were pro-
duced who were fit to be examined, if the time
of recess was not so near at hand. The lords
committees have thought good to present to
the house those proofs they have made, not to
delay the time, but their lordships were not to
be excluded from giving further proofs here-
after.— His lordship observed, That the com-
mittee dealt, chiefly, with the execution, not
with the legality of these patents. Tbey found
in the execution thereof, that the authority
given by these patents, which ought to have
been rarely used, was used by them familiarly,
to the undoing of thousands. ' That the war-
rants dormant, to seize and imprison, &c. ex-
ceed all kinds of warrants ; of which there are
three, and one of them is without date and
razed ; and the other hath a date by a new
hand. That sir Gilts Mompesson committed
divers to prison, without examination, which
they could not do by that warrant. Several
were threatened with imprisonment. That one
Fowl is did lock up divers in his own house.
That several houses were violently broke up
and the parties goods seized. That others were
compelled to enter into bonds, not to exercise
their own trade and to stand to their orders;
and to make oath what quantity of Gold and
Silver-Thread they sold, and to whom. That
sir Giles confessed divers of these wrongs, and
made restitution umo many. That this work
of Gold and Sil\er-Thread was much sophisti-
cated, since the grant of the sole manufacture
thereof. He further declared, That the lords
committees urged none to accuse himself, and
admonished every man not to accuse another
out of passion. He desired, That though sir
Giles be fled, vet that Fowlis and other delin-
quents may be heard here, what they can say
in their own defence."

The Earl of Southampton, one of the com-
mittee to consider of the Grievances com-
plained of for concealments, reported to the
hou«e, a That they find his majesty to be much
abused in the pretence and execution of this
grant. They find that sir Giles Mompesson
obtained a commission to himself, to call all
officers before him ; by virtue whereof he fetch-
ed up, from all parts, the king's officers, and
kept them here to fill his book, granted unto
kin, of 900/. per aooom on concealed lands, in

recompence of his service. The proceeding*,
warrants, and the abuses in the execution, art
all set down in the declaration, delivered by
the commons. Their lordships labour was to
look into these informations, wherein thev de-
sired the help of divers gentlemen of the lower
house ; who, not as members of that house,
but as private gentlemen and friends, gave their
lordships full satisfaction therein. In this
search, they found proofs of ever}' point, set
down in the said declaration : and, for their
more full satisfaction, they reviewed the Re-
cords themselves, wherein they found some
proceedings, not mentioned in the declaration,
and not warranted by any commission, viz.
1. Process used by George Geldard, sir Giles
Mompe«son's agent, in the king's attorney's
name ; the said Geldard confessing to one and
but one. 2. Sir Giles used Geldard and bis
man, as his agents ; Geldard to be Commis-
sioner and Geldard's man to be his clerk.
Their lordships found likewise, That Geldard's
man gave the evidence to the Jury, and, though
the jury found an imperfect verdict, yet Gel-
dard proceeded as upon a perfect one. Tost
Geldard compounded with divers who were
questioned for their lands, as coneealed, and
employed those parties, as commissioners, for
their own compositions. That they set down
in their book an Ad vow son and a Rectory at
4d. per annum ; and lands, called Pease
Marsh, at 10*. a year; which was affirmed by
sir George Moore, the tenant to it, to contain
700 acres, and to be better worth than 300/. s
year. That there was no time limited to sir
Giles to fill up his book ; w hereby, his vexinf
the subject, to fill the same, might continue 7
years. Lastly, their lordships conceived, That
as his majesty had been abused in the Grant
and in the Execution of it, so he should also
have been in the end." — After this last Report
was ended,

The Ijord Admiral (Buckingham) stood op
and moved the house, " That care might be
taken hereafter, that the sophistication of the
manufacture of Gold and Silver-Thread be
prohibited ; and none be permitted to work
thereon, to waste and consume the bullion of
the land." He commended the trade that set
so many thousands on work ; and, if order was
first taken for bringing in bullion, and against
the sophistication, it might be gainful both to
the king and commonwealth ; and to new pa-
tentees, if another patent thereof should be
thought fit. He shewed further, " that the
motive for the grant of Concealments *as,
that sir Giles Mompesson offered his service to
consider how the multitude of officers in the
exchequer might be cut oil'. In winch his ma-
jesty first asked the opinion of the Judges; and
his majesty's pleasure was not to prejudice any
officer, during his life^but to provide fur the
future ; which was, and yet is, his majesty** re-
solution to do ; in consideration whereof, this
Patent of Concealments was first granted to the
said sir Giles. It was ill foreseen, that a man
of hit corrupt disposition should be ^tp'"*** ts

1195] STATE TRIALS, 18 James I. 1020 a Monopolist and Patentee. [1125

view ihe Records, which he might embezzle,
blot or raze out tor hi* own profit ; but, ut that
time, sir Giles had the reputation of an honest
nun. That sir Gilts had abused this grant
many way*, but, ns yet nothing was past under
seal. That the abu«e, partly, grew out of this,
that sir Giles had compounded with one Gold*
ard for the same, who, to make his best com-
modity thereof, put into the book matters of
great value at small rates ; which when his lord*
ship heaid of, he rtbuked sir Giles and willed
him to look to it, and not to sutler any thing to
be past but what the chancellor of the exche-
quer should hYot allow of. That, thereupon,
the said sir Giles, in the hearing of his lordship,
delivered his hook to Mr. Chancellor to be
viewed, and whatsoever he thought good to be
put out. Lastly, though much was intended to
Che prejudice 'of his majesty and the subject,
yet nothing was past." — When the minister had
ended his speech, a motion was made and
agreed to, '* Thar, although the Proofs given
before the Lords against sir Giles Mompesson
and others his agents, for their misdemeanors,
were good aud manifold, yet their lordships
will hear the parties themselves what they can
say in their own defence. But, because Laster
is drawing on, and the time of recess very near,
in which shot t space all the delinquents cannot
be heard and proceeded againsl ; it wns further
agreed, That a collection be made of all the
proofs, concerning sir Giles only ; which being
read to the house, the Lords would proceed to
sentence t>ir Gik»s, though absent ; for that his
%fligbt is an eviction in law : and for that the
expectation thereof is great as well as the
grievance, therefore the proceedings should be
with expedition, that the whole kingdom might
bear of the Punishment imposed upon Delin-
quents, by this parliament, as well as of the
granted Subsidies/'

A debate arising, in what manner to pro-
ceed agaiost the said sir Giies, whether by In-
dictment in that house, or otherwise ? And
there being some confusion amongst the speak-
ers, the Prince of Wales, who constantly at-
tended this business morning and afternoon,
made a motion, " That by the ancient Orders
of the House, no lord was to speak twice,
though to explain himself, except smne other
lord mistake In* meaning in any part of his
speech/' This was commanded to oe entered,
and ordered to he observed.

March '23. The Earl of Huntingdon, one of
the coimuiitee appointed to search Precedents
of Sentence**, 6cc. reported, " That they had
searched the records, and the earl of Warwick
read the head* of several precedents, and then
delivered the notes taken out of the records,
and signed by (he officers, to be kept by tne
clerk" — The collection of sir Giles Mompes-
son's ofTcncc*, touching Inns and Hostrnes. and
the pnmfs iliceof, were read, with the pateut
and commission concerning the same.

March 26. The King came to the House of
Lords, the peers being all in ihcir robes, and

the Prince with his coronet on his head ; the
earl of Oxford, as lord great cir.imherlain, bcur-
iug his while stall', and the earl of Montgomery
the sword. His majesty being *ea>ed on the
throne, made the following Speech to the Lords
only :

" :\Iy lords; The last time I came hither,
my errand was to inform you (as well as my
memory could serve me, of things so long pass-
ed) of the verity of my proceedings, and the
cautions used by me in the passing of those
Patents, which are now in question before
you ; to the effect, that they might not be
abused in the execution; and this I did by way
of declaration. But now I am come (under-
standing the time of your censure to draw*
near) to express my readiness to put in exe-
cution (which is the life of the law) those things,
which ye are to sentence (for even the law it-
self is a dead letter without execution) for
which office God hath appointed me in these
kingdoms. And though 1 assure myself that
ray former behaviour, in ull the course of my
life, hath made me well known for a jost king ;
yet in this special case I thought fit to express
my ovm intentions, out of my own mouth, for
punishment of things complained of. The first
proof whereof* I have given by the diligent
search I caused to be made after the person of
sir Giles Mompesson, who though he were lied,
yet my Proclamation pursued him instantly :
and as I was earnest in that, so will I be to
see your sentence against him put in execu-
tion.— Two reasons move me to be earnest in
the execution of what ye are to sentence at
this time: first, that duty I owe to God, who
hath made me a king, and tied tne to the care
of government by that politic marriage betwixt
me and my people. For I do assure you in
the heart of an honest man, and by the faith?
of a christian king (which both ye and all the
world know me to be) had these things been
complained of to me before the parliament,
I would have done the office of a just king;
and out of parliament have punished them
as severely, and perad venture more, than
ye now intend to iio. — But now that they
are discovered to me in parliament, 1 shaU
be as ready in this way, as I should have
been in the other. For (I confess) I am
ashamed (these things proving so, as they are
generally reported to be) that ir was not my
good fortune to be the only author of the re-
formation and punishment of them, by some
ordinary courts of justice. Nevertheless since
these things are now discovered by parliament
which before I knew not of, nor could so well
be discovered otherwise, in regard of that repre-
sentative body of the kingdom, whirh comes
from all purts of the country: I will be never
a whit the sinner to do my part for the execu-
tion. For, as many of you that are here have
beard me olten say, so I will still say : so pre-
cious unto me is the public good, that no private
person whatsoever, uere he never so dear
uuio me, sh til be so'respected by me, by many
degrees, as the public good, not only of the

1127] STATE TRIALS, 18 J. L \ 620. —Proceedings against Sir G. Mowpcuon, [113§

whole common weal tli, but even of any parti-
cular corporation that is a member of it : and
I hope that ye, my lords, wiil do me that right
to publish to my people this my heart and
purpose. — The 2nd reason is, That I intend
not to derogate or infringe any of the liberties
or privileges of this house, hut rather to for-
tify and strengthen them. For never any king
hath duue so much for the nobility of England
as I have done, and will ever be ready to do.
And whatsoever I shall now say or del.ver unto

r>u as my thought, yet when 1 have said what
think, I will afterwards freely leave the judg-
ment wholly to your house. I know ye will do
nothing, but what the like hath been done be-
fore: and I pray you be not jealous, that I will
abridge you in any thing that hath been used.
Fur whatsoever the precedents in times of good
government ran warrant, I will allow. For L ac-
knowledge this to be the s rpreme court of jus-
ure, wherein 1 am ever present by representa-
tion. And in this ye may he (he better satisfied
by my own presence, coming divers times
amongst you : neither can I give you any greater
assurance, or better pledge of this my purpose,
than that I have done vou the honour to set

•

my o.ily sou among you ; and hope that ye
with him, shall have the means to make this
the happiest parliament that ever was in Eng-
lund. This I profev, and take comfort in, that
the Commons at this time have shewed greater
love, and used me with more respect in all
their proceedings, than ever any house of com-
mons have heretofore done to m<*, or (1 think)
to any of my predecessors. As for this house
of yours, I have always found it respective
to me; and accordingly do I, and ever did
favour you as ye well deserved. And I hope
ft will be accounted a happiness for you, that
my son doth now sit amount you, who, when
it shall please God to set him in my place, will
then remember that he was once a member of
your house ; and so be hound to maintain all
your lawful privileges, and like the better of you
all the davs of his life. But. because the world
at this time talks so much of bribes, I have
just cause to fear, the whole body of this hause
oath bribed him to be a good instrument for
you upon all occasions : he-doth so eood offices
in all his reports to me, both for the house in
general, and every one of you in particular.
And the like I may say of one that sits there.
(Buckingham. )IIe hath been so readyupon all oc-
casions to do pood offices, both for the house in
general, and every member thereof in particular.
One proof thereof, I hope my loid of Arundell
hath already witnessed unto yon, in his re-
port made unto yo'i of my Mi*v*cr, touching
the privileges of the nobility, how <*uriK^tly he
spake unto me in that matter. — Now, my lords,
the time dr-tw* near of yotr recess : whether
formality will lea\e vou tin.e for |.roreeding
now to {en»ence aeainst all, or any the persons
now in question, I km«w not. But for my part
since both houses have dealt so lovingly and
freely with me, in giving rrie, as a free gift, two
pabskiiea in a more loving manner than hath

been given to any king before, and so accepted
by me ; and since I cannot yet retribute by a
general pardon, which hath by form usually been
reserved to the end of a parliament : the least
1 can do (which I can forbear no longer) is to
do something in present, for the good and ease
of my people. — Three patents at tliis tune
have been complained of, and thought great
Grievances : 1. That of the Inns and I Jo;- tenet,
2. That of the Alehouses. 3. That of Geld
and Siher Thread. Aly purpose is to strike
them all dead, and (that time may not be lost)
I will have it done presently, lhat concern-
ing the Alehouses, 1 would have to be left to
the managing of the justices of peace, as be-
fore. 'I hat of Gold and Silver Thread was
most vilely executed, both for wrongs done to
men's persons, as also for abuse in the stuff;
for it was a kind of false coin. I have already
freed the persons that were in prison : 1 wiil
now also damn the patent : and this may seem
instead of a pardon. All these three I will
have recalled by proclamation, and wish yon
to advise of the fittest form for that purpose.-—
I hear also that there is another bill amongst
you against Informers : I desire you, my lords,
that as ye tender my honour, and the good of
my people, ye will put that bill to an end so
soon as ye can ; and at your next meeting to
make it one of your first works. For I have
already shewed my dislike of that kiml of peo-
ple openly in Star Chamber; and it will be
the. greatest ease both to me, and all those
that are near about me at court, that may be.
For I remember, that since the beginning of tfiil
parliament Buckingham hath told me, he never
found such quiet, and rest, as in this time of par-
liament from projectors and informers, who it
other times miserably vexed him at ail hours.
— And now I confess, that when 1 looked before
upon the face of the government, I thought (as
every man would have done) that the people
were never so happy as in my time. For
even, as at divers tunes I have looked upon
many of my coppices, riding about them, and
they appeared on the outside very thick, and
well grown unto me : but when 1 entered ioK>
the inid*t of them, I found them all bitten
within, and full of plains and bare spots; like
an apple or pear, fair and smooth without, but
when ye cleave it asunder, ye find ir rotten at
the hci.rt: even so this kingdom, the external
government being as good as ever it was,
and 1 am s>>rc as learned judges as ever it had
(and I l;.»;»e as honest) administering justice
v. ithin i.: and for peace, both al home and
abror.-l, f may truly say, more settled, sod
longer la^i'jL*, than cur any before, tug* ther
with a> «;ieat plenty as ever: so as it was to DO
though?, that every in;.n might sit in safety
under hi^ o«n •.inc. and his own fi<i-tree : vetl
am ashamed, and it maki s my hair stand upright^
to consider, how in litis time my people hare
been vexed, and polled by the vile execution
of projects, patents, bills id' conformity, and
such like; which, besides the trouble of my
people, have mure exhausted their purses.

1129] STATE TRIALS, IB James I. 1020 a Monopolist and Patentee. [1130

subsidies would hare done. — Now, my lords,
before I go hence, since God hath made me
the pvat jud^e of this land under him: and
that I must answer for the justice of the same:
I will therefore (according to my place) remem-
ber you of some things, though I would not
teach you. For no man's knowledge can he
so good, but tht ir memories will be the better
to be refreshed. And now because ye arc
coming to give judgment, all which move* from
the Ling, thai you may the better proceed,
fake into your care two thiols : 1st; to do
bonam ; 2ndly, next to do it ben?. 1 cull bonum
when all is well proved, whereupon ye judge,
for then ye build upon a sure foundation; and
by bene 1 understand, that ye proceed with till
formality and legality: wherein you have fit
occasion to advise with the judges, who are to

amongst you, may be entered into the records
of this buui-e."

The Kinii having ended his Speech, the Lord*
conceived so much iov therein : ihat thev or-
dered the whole house to iio to him, at one in
the afternoon, with thiir most humble thanks
for it.

The collection of Oaenccs and Abuses com-
mitted by*ir Gibs Moni| esson, in I he three pa-
tents which were granted tohini, In injj all read:
it was re» ilvud by the whole h«u-e, " That it
did appear to the lords, and they were fully
satisfied, *sir Giles Mompesson had erected a
court without ^ arrant ; and, also, that he im-
prisoned the khu's ^ibjects and exacted bonds
from them by thread, without warrant ; and,
afterwards, by undue practices, procured a
proclamation and other warrants to colour

assist you with their opinions iu cases of that I such his doings. And \et that he executed
nature; and woe be to them, if they advise < all these His, and seized the goods of divers
you not well. So the ground being good, and ! persons, contrary to such authority, so unduly
the form orderly, it will prove a coiirsv titting i procured by him. That he neither paid the
this high court of parliament. — In scurvuee I 10/. reserved rent to the king, nor brought in
ye are to observe two parts: 1st, to recollect the 5000/. of bullion yearly, as he pretended
that which is worthy of judging and ceusur- and covenanted to have done. And that all
ing: and 2ndly, to proceed against these, as | his other olfences and abuses had been fully

against such like crimes properly. We doubt
there will be many matters before you, some
complained of our of passion, and some out of
just cause of grievance. Weigh both ; but
be not carried away with the impertinent dis-
courses of them, that name as well innocent
men, as guilty. Let your judgments only take
hold of the guilty : proceed judicially, and spare
none where ye find just cause to punish: but
let your proceedings be according to law. And
remember, that laws have not their eye) in
their necks, but in their foreheads. For the

proved against him." Hereupon it was agreed,
" That the lords would give sentence against
sir Giles, in their robes, in the afternoon. The
lord admiral, Buckingham, desired to l>e ex-
cused if he should be absent ; but he gave his
assent to their lordships censure of the said sir
(riles; affirming, That he had highly abused
tho king, and also himself, more than any other
lord of that house."

March 26, p. m. The whole house met again.
The lords were in their robes, in order to give
sentence against the olrender, it was much dt-

mora I reason of the punishment of vices, in all j bated first, amongst them, what punishment
kingdoms and commonwealths is, because of; sir Giles deserved for his high crimes: and,
the breach of lows standing in force: for none . because the punishment inflicted heretofore on

can b<s punched for breach of laws by predes-
tination, before they he made. There is yet
one particular, which I am to remember you
of, I hear that sir Henry Y el vert on who is now
in the Tower, upon a sentence given in the
Star Chamber ugainst him, for deceiving my
trust) is touched concerning a warrant dor-
mant, which he made while he was my attor-
ney : The which my lord treasurer * here re-
fused to set his ha ltd unto, like an honest man,
when it was brought unto him. 1 protest, I
never heard of this warrant dormant before,
and I hold it as odious a matter, as any is be-
fore you : and if, fur respect to me, ye have
rorbnrn to meddle with him in examination, be-
cause he i* my prisoner; I do now here freely j against hint hcrratfir, if more matter, or mat-
remit hiiu unto you, and put him into ynur , tcrofa hiirht r nature, was found out. — Accord-
hands. — And tin's is all 1 Live to sav unto inclv a Mi-^ue was v nt inrn the I.imU to

• . ~ • . ... .

you, at this time; wishing you to proceed the (.'o:umk>!i->, "That if il.ey and their Speaker,

Empson and Dudley was much spoken of, the
lords desired to hear their indictments. The
indictment of Rd. Kmpson, taken at North-
ampton, 1 Hen. 8. was read; by which it was
observed, that the said Kmpson was indicted
for treason against the king. The attorney-
genend al*o certified to their lordships, that
Dudley was indicted, in London, for treason.
But to the end that these matters might be
more freely discussed, and wh:it punishment
was fit to be inflicted on the offender, the
house adjourned fid libitum ; when, after a
long debate, the lords agreed upon a Judg-
ment against tir Giles : thf curl of Arundel
observing, that their hud* hips ins'Jit proceed

! also that the Lords desire a conference with

• Henry Montagu, viscount Mandeville. He ! them, in the Pouted (Limber, to-inorrow
hftdbeoB before lord chief justice of England, i morning.'' Answer returned, *' That the^

1131] STATE TRIALS, 19 James I. 1621 — Proceedings against Sir R Michel!, [llSf

would come to demand judgment; and that
they agreed to the conference." — In the mean
time the lord treasurer reported, " That, ac-
cording to the order of toe house made this
morning, the Prince's highness, accompanied
with many lords, did present unto his majesty
most humble thanks for his majesty's most gra-
cious Speech to the Lords that morning ; which
thanks, with the manner of presenting the
same, was most joyfully accepted by him, us
'he expressed in many kind and favourable
words ; adding, " That the Lords had taken
the right way to catch a king, by speaking to
him by his son/'

The knights, citizens, and burgesses of the
House of Commons, with their Speaker, beiug
come up to the bar, the Speaker repeated the
last message which the lords had sent unto
them, and said, " The Commons, by me, their
Speaker, demand judgment against sir Giles
Mompesson, as the hemousness of his offences
doth require."

The Lord Chief Justice, as Speaker of the
house of peers, answered : " Mr. Speaker, the
Lords spiritual and temporal have taken know-
ledge of the great pains the Commons have
been at, to inform their lordships of many com-

Sluints brought unto them against sir Giles
Sompesson, and others, whereof their lord-
ships received several instructions from them ;
and, thereupon, proceeding by examination of
divers witnesses upon oath, they find sir Giles,
and several others, guilty of many heinous
crimes ngainst the king's majesty, and against
the commonwealth. — Time will not permit
their lordships to deal with all the offenders
now ; therefore they proceed to give judgment
agninst sir Giles, according to your demand ;
and, hereafter, their lordships will proceed
against the other offenders. The Judgment of
the lords against the said sir Giles is, and,
Ihe Lords spiritual and temporal of this high
court of parliament, do award and adjudge, 1.
That sir Giles shall, from henceforth, be de-
graded of the order of Knighthood, with reser-
vation to his wife and children ; the ceremonies
of degradation to be performed by direction of
the earl marshal's court, whensoever he shall
be taken. 2. That he shall stand perpetually
in the degree of a person outlawed for misde-

meanors and trespasses. 3. That his testimony
be received in no court ; and that he shall be
of no assize, inquisition, or jury. 4. That be
shall be excepted out of alt general pardons to
be hereafter granted. 5. That he shall be im-
prisoned during life. 6. That he shall not ap-
proach within 12 miles of the courts of the king
or prince, nor of the king's high courts usually
hoi den at Westmiuster. 7. That the king's maj.
shull have the profits of his lands for lite, and
shall have all his goods and chattels as forfeited ;
and he shall undergo fine and ransom, which
their lordships assess at 10,000/. 8. That he shall
be disabled to hold or receive any office under
the king, or for the commonwealth. 9. Lastly,
That he be ever held an infamous person/'

March 27. The Lord Admiral delivered his
majesty's hearty thanks to the Lords, for their
Sentence given yesterday against Mnmpe*on,
it being so just, and vet moderate, in respect
of the heinousness of the offence. And said,
That the king, out of regard to his people and
detestation of the said crimes, is pleased, u
abundant e, to inflict perpetual banishment on
the said Mompesson, out of oil his majesty's
dominions.

The Commons being ready in the Fainted
Chamber, for the conference ; before the Lords
went to them, the lord treasurer first reported
die heads of what he was to deliver, by direc-
tion from the house. " To make a short re-
cital of his majesty's gracious speech here yes-
terday. His majesty's good allowance and ap-
probation of the sentence given against Mora-
pesson ; and that, out of his grace and favour
to the people, he bad added, to the punish-
ment, perpetual banishment. That the lords
of this house yesterday presented, by the prince,
their humble thanks unto his majesty for his
said speech to their house ; which was well ac-
cepted of. To let them know that the lord*
did consider of the precedents for Empson and
Dudley ; but found they did not concur with
this case of Mompesson, they being both indict-
ed for treason." — The conference being over,
it was ordered, That the whole Proceeding*
against Mompesson should be drawn up br
the king's council, perused by a committee of
lords appointed for that purpose, and entered
in die records of parliament.

117. Proceedings in Parliament against Sir Francis Michell, a
Monopolist and Patentee, and Co-Partner with Sir Giles Mom-
pesson : 19 James I. a.d, 1621. [Lords' Journals. 1 Cobb.
Pari. Hist. 1242.]

Charge against Sir Francis Michell. Offences wherewith sir Francis Midiell »

a i «« «fl, charged, and their Proofs.

April 26, 1621. 1# « xhat he received an annuity of 100/-

1HIS day, Mr. serjeant Crew came to the per ann. (to be continued for five years), **

house of lords, and opened the Offences com- executing the Commission concerning G**M

mitted by sir Francis Michell, Prisoner in the and Silver Thread. Proved by the Deed ef

Tower, nod the Proofs thereof: vis. the Grant thereof from Rd, Dike and fir Nick.

118B] STATE TRIALS,, 1Q James I. I62l>— a Monopolist and Patent*. [1134

Salter, knt. unto him the said sir Francis, dated
S7th May, 1619.

3. " He and Heory Tweedy took upon them
the execution of the first Commission touching
Gold and Silver Thread, dated 22nd Aprilis,
16 Jac. and therein exceeded and abused their
power, by committing divers to prison before
conviction, and by committing to. prison divers
for refusal to enter into bond required by
them; which was not then warranted by the
commission. Proved by Robert Moore, Win.
Syinonde<, John Wakeland, and Hugh Under-
bill, committed for refusing to be bound from
their free trades, in May 1618, 16 Jac. and by
the bonds of divers others.

3. " That, there being a second Com-
mission, touching Gold and Silver Thread,
dated 26th Oct. 16 Jac. he alone committed
divers to prison ; the authority being unto two.
Proved by Eleanor Tower, committed to prison
by him alone, in Sept. 1618.

4. "That he erected an Office, kept a Court,
made Officers, and divers unwarrantable Or-
ders, and exacted bonds for the observance of
the same. Proved by two books of Orders of
that Court, and by the deposition of William
Acton, S. Paske, James Grore, and Edin. Page,
sent for to that Olfice, before Mompesson and
him, for the exacting of Bonds; and by the
Bonds themselves, dated June, 1619r and the
Bond of Nath. Deards unto Mompesson and
Michell, dated 25th Sept. 1620.

5. " That, in the Suit brought by Fowles, in
the Star-chamber, against Francis Lake and
others, he took of Francis Lake three 32 shilling
pieces to compound the same. Proved by Fran.
Lake."

Sir Francis Michell's Defence.

Sir Francis Michell, being called to the
bar, was charged with the said Offences; and
made his Answer unto them particularly.

1. To the first, touching the Annuity of 100/.
per annum. He denied, that he received that
Annuity as he was Commissioner, but in con-
sideration of his pains to be taken to settle
the controversies betwixt Mathins Fowles (the
king's agent for gold and silver thread, as he
termed him) and divers Goldsmiths, and others;
which controversy he appeased, and settled
what profit should be answered to any for that
business ; and said, he knew not whether he
were a Commissioner or no at that time, when
the annuity was granted unto him.

2. That he and Henry Tweedy committed to
prison, contrary to the power given by the
Commission, dated 2'2od April, 16 Jac. ; and
exacted Bonds, &c. which was not then war-
rantable. He denied, that he committed any
to prison before the 7th of May, 17 Jac.

The Depositions of were read, who

deposed that they were committed, unto Prison
before.

lie denied' also, that lie look Bonds of any
man before there was a Proclamation to war-
rant the same. Many Bonds were produced,
dated in — . Aad the Proclamation was

read, dated in Oct. following, in the same year.
Unto which he answered, That many Bonds
were taken by Mompesson, but not by him;
he confess* th, that he and Mr. Tweedy entered
into this business alone, the other Commis-
sioners not having leisure That he trusted
Mr. Tweedy with the examinations of any
brought before them ; and that they dealt with
an even hand, aud acquainted the king's At-
torney, from time to time, with their courses,
and had his advice; and, if Mr. Tweedy be not
in more blame than he, then they have done
nothing contrary to the Commission.

3. " That, there being a second Co in mis-
mission, touching Gold and Silver Thread,
dated 26th Oct. 16 Jac. he alone committed
divers unto prison, the authority being unto
two. He denies, that he did ever sit down, or
do any thing alone, as a Commissioner. — The
Deposition of Eleanor Towne being read, it
appeared, that he alone had com mi tied to
prison ; aud lie being demanded why he re-
called his mittimus to the keeper of Newgate,
for the commitment of Robert Moore, Willisim
Symons, Hugh Underbill, John Wakeland,
Robert Pa trick son, Jo. Mason, Wm. Whiting,
Anth. Sands, and Thomas Ledsham, committed
by him and Henry Tweedy, dated 6th June,
a. d. 1618. He confessed he did so, and gave
his reason why he did it; viz. because he would
write with his own hands, in the margin there-
of, the discharge of die said persons.

4. " Touching the erection of the Office,
keeping of a Court, making Officers and Or-
ders, and exacting Bonds, to observe those
laws: He denied not the erection of an Office,
nor keeping of a Court ; but said, that he
joined with the other Commissioner Mom-
pesson therein.

Some of the Orders contained in the Book
of Orders being read; he denied them not;
but said, that all 'he Orders contained in that
book were made by the parties consent, of
whom they took Bonds; and confessed they
were all made by Mompesson and him.

5. " And, touching his taking of money of
Lake, in the Star-chamber suit, being then a
Commissioner: he denied it not; but said, that
Lake had more of him since.*1

The Prisoner, having leave to speak for him-
self, made a Discourse, commending the first
Commission, touching Gold and Silver Thread;
and that he misliked the second Commission,
and the proceedings, and would not i.nve med-
dled with it, if he could have avoided it; but
Mompesson told him weekly* that he had com-
mand from the king to do thus and thus, and
what should he do to withstand Mompesson.
Sir Francis was then withdrawn from the bar.*

Judgment against Sir Francis Michell.

May 4. The Offences wheicwith sir Francis
Michell is charged, 26 April, being read, thft
hou*e was adjourned ad libitum.

Mr. Serjeant Crew having opened the
Charge, and the Proofs, the house was resumed
again. It was put to the question, Whether

1135] STATE TRIALS, 10 Jams I. 1621.— Prmxcdmg* against Sir H. Ytbarum, [1116

sir Francis Michcll be so guilty of the Offences,
or any of them, charged upon him, that is
worthy to be censured. Agreed unto, per
cmnts.

The Lords, being agreed of the Sentence
upon sir Francis "Michell, sent a Message unto
the house of commons : That the Lords have
proceeded against sir Francis Michel I, upon
Complaint of the Commons; they have found
him guilty of many exorbitant offences, and
are ready to give Judgment against him, if they,
with their Speaker, will come to demand it.

Answered, They will come accordingly,
with all convenient speed. In the mean time,
the lords put on their robes.

The Commons being come, and the Speaker
at the bar, after low obeisances, he said :

" There was heretofore related unto their
lordships, by the house of commons, a Com-
plaint of many Grievances against Mompesson
and sir Francis Michel!, for many offences
committed by them against the king and the
commonwealth ; your lordships have proceeded
with Mompesson, and given Judgment against
him. Understanding that you are ready to pro-
nounce Judgment nlso against sir Francis Mi-
chel!, I the Speaker, in the name of the
knights, citizens, and burgesses of the commons
house of parliament, do demand and pray, that
Judgment be given against htm the said sir
Francis Michell, according to his demerits."

The Lord Chief Justice pronounced the
Judgment, in hac verba :

" Mr. Speaker, the lords spiritual and tern*
poral have taken into due consideration the
great care and pains taken by the Commons to
inform their lordships of the great Complaiata,
and the qualities and natures thereof, present-
ed unto them against sir Francis Michell and
others, whereof their lordships being well pre*
pared by them, to the true understanding of
the same, and thereupon having proceeded for
the perfect discovery thereof, by examination
of divers witnesses upon oath, do find thereby,
the said sir Francis Michell clearly gnilty of
many great Crimes and Offences against his
majesty and the commonwealth, and have re*
solved, at this time, to proceed to Judgment
against him for the same.

" And therefore the Lords Spiritual and
Temporal of this great and high court of parti**
ment do award and adjudge : ' 1. That the

* snid sir Francis Michel) shall stand, and be

* from henceforth, degraded of the order of
i knighthood, with reservation of the dignity of
4 his now wife and cluldrcn ; and the ceremo-
' nies of degradation to be performed by direo

* tion of this court to the carl Marshal's court.
' 2. That he shall be imprisoned, during the
' king's pleasure, in Fins. bury Gaol, in the essna
' chamber there, where he provided for others ;
' The Tower, where he now remains, being a
' prison too worthy of him. 3. That he shall
< undergo the fine of 1000/. 4. That he thaU
' he disabled to hold or receive any office

* under the king, or for the comsaonwcalth/

118. Proceedings against Sir Henry Yelvertox, the King's At-
tornev-General,* for Misdemeanors : 19 James 1. a. d. 1621.
[1 Cobb. Pari. Hist. 1232.]

April IT, 1621.

TlIE lords ordered, That the lord chief jus-
tice should grant a special warrant to the Lieu-
tenant of the Tower, to bring st Henry Vel-
verton and sir Francis Mitchcl before their
lordships at (he same tine.

ABTICLES of Charge a^ttinxt Sir H. Ydtcrton,
with his Answers.

April 18. The home adjourned themsehes
into a committee, to debate and settle in what
manner to proceed anainsJ sir Henry Y elver-
ton, then Attorney General, and, being agreed,
the Chief Justice resumed his place.

* Of this case Wilson (2 Keun. Compl. Hist.
734) says, u Sir Henry Yclvertnn, the king's
attorney, had found the ejects of Buckingham's
anger, by not closing with his desires in such
patents ns he requited : so that all bis actions
being anatomized, some miscarriages arc made
criminal ; he is committed to the Tower, and
another put in his place that should be more
observant. The king now lays upou hiin a
warrant dormant, which did not much startle
him ; for he was not long after released, and
made a Judge, carrying with him this character

Sir Henry Yelvcrton being brought by the
gentleman u-hcr to the bar, and kiueiing until
he had leave, and was billed to stand up ; the
Lord Chief Justice read the Particulars where-
with he was charged ;* unto the which the said
sir licnrv Yelverton made several Answers im-
mediatily.

The I 'articular? and the Answers follow, in
here verba : * Sir Henry Yelvcrton is cftareed :
* I. That he did commit diver*, for refusing to
' enter into bonds, to restrain their own trade,
' 6\C before he had any authority to require
1 any such bonds.' — Resp. He c>fife*seth, he
committed divers to prison ; and justitieth the

of honesty, 1 hat he was willing; to lay down his
preferment at the king's feer, and be trod upon
by the growing power of Buckingham, rather
than prosecute his patron Somerset, that had
advanced him, us his predecessor B;icon had
spitefully done his.** — The Historiau's re-
proach of Bacon is for his conduct m the prose-
cution of the Earl of Essex ; ante, vol. 1, p. 1533,
as to which, see Bacon's Apology addressed to
the Earl of Devonshire, pnuteain the secoad
vol. of Birch's edition of his Works in 4to"

1187]

STATE TRIALS, 19 James I. 1621.—; for Misdetncanor*.

[113$

same. That he committed none to restrain i
them of their trade, but lor their stubbornness, I
in not obeying the king's commandment ;
which he did to advance the lawful profit of his
majesty ; and that he had authority to do it.

II. * That he first signed and directed the
' warrants dormant*, having no authority for
4 the same, and yet containing many unwar-
4 mutable clauses.' — Resp. He drew one, and
first signed, it, and no Clause unwarrantable in
that. He justifieth that. For the others, he
neither denieth nor confe?seth, hut remembers
not whether he drew tbein or not.

III. * That he advised the Patent of gold
4 and silver Thread to be resumed into the
4 king's hands, conceiving the same to be a
4 monopoly, and advised the Patentees to pro-
' ceed by contract with the king.' — Resp. He
advised it not alone. He was the weakest
amongst many that advised the contract. He
denies that he conceived it to be a monopoly,
and doubts not but to prove it to be no mono-
poly. He denies that he confessed any such
thing to the commons. He denies his advice
in the contract to colour a monopoly. He
advised it in his duty to the king.

IV. * He, to procure a Proclamation to take
4 Bonds, signed a Docket, shewing his advising
4 thereupon with the Recorder of London and
4 the City, whereas the Recorder was not uc-
4 quaioted with it/ — Rttp. He utterly denies
he made any such Docket ; he did sign a
Docket, that he had acquainted the Lord Chan-
cellor and Recorder of London with it; and he
did acquaint the Lord Chancellor and the Re-
corder of London with .it, and willed 'the Re-
corder to acquaiut the City ; but denies that
the Docket is, that he acquainted the City
with it.

V. * That 3401 Quo Warrantos (to the
* vexation of the people) were brought by him,
4 touching the Patent of Inns, and hut two
' came to trial.' — Resp. He cannot particular-
ly answer it ; if it appear upon record, that
Caere be so many signed by him, he confessed}
it ; ontil then, lie humbly desires to be retain-
ed in i heir lordships favour; adding, that if he
«ver deserved well of his majesty, it was in this.
And added, that the king and subject were
more abased by that Patent than by any
other; and that he suiters at this day for that
Patent, as he takes it.

VI. ' That he commenced divers suits in the
' exchequer, touching the gold and silver
4 Thread, but did not prosecute the same/ —
Rc*p. It may be he did.

These Answers and Confessions being read,
the said sir Henry Yelverton (having leave to
speak) said, he thought himself happy, that, in
these mists of his majesty's disfavour, his ma-
jesty was pleased to cast that grace upon him,
as Co send him to this honourable house. That
innocency hath her present Answer ; wisdom
require* time : therefore he made his humble
am, to have a particular of his Charge in writ-
ing, and time to answer the same ; and that he
might have leave to repair to his chamber at

vol. If.

Grays-Inn, and to his house, to search his Pa-
pen-, far that the matters objected against him
did look into his actions of 4, 5, and 7 years of
his serving his majesty.

The Speech ended, sir Henry Yelverton was
withdrawn ; and the house having taken this
into their consideration, he was brought to the
bar again ; and the said Answers and Confes-
sions were read unto him by the clerk, and ac-
knowledged by sir Henry to be truly set down ;
yet desiring that the same might not preclude
liim, touching his future defence, desiring a
seveu-night for his further Answer.

The Lord Chief Justice signified unto him,
That the lords were pleased that he should
have a copy of the Charge objected against
him, and leave (under the Lieutenant's charge)
to go to his house in Aldersgate-street, and un-
to his chamber in Gray's Inn, to view his
Papers, and to have time until Saturday come
seven-night, to make his further Answer, which
was more than his own request. And an order
of the house was made for it accordingly.

April SO. Sir Henry Yelverton was brought
to the bur; when the Lord Steward informed
the house, That his majesty is satisfrd concern-
ing the charging sir Henry, in this hou^e, wiih
the matter of Inns and HoHteries. I hen the
chief justice read the Charge, which wits made
against him on the 18th of Apiil. with his An-
swer* thereto, and demanded of him, Whether
he now would ainrm those Answers? Unto
which he replied, u That the six Charges
against him may be reduced into two, the
one of Gold and' Silt er Thread, the other of
Inns and Hosteries. He humbly desired, there-
fore, that he might then Answer to every par-
ticular charge, in serie trmpurit."

May !?. The Lord Treasurer acquainted the
house, " That he had bis majesty's commands
to deliver a Message to their lordships of a
double nature; 1st, an Account of v. hat was
done ; and, 2ndly, a Signification of \> hat was
to be done. — As to the first, his highmss had
presented their lordships request to his majes-
ty, that he would be pleased, as the case then
stood, to command the Seal from the Lord
Chancellor. Accordingly, yesterday, his lord-
ship, the Lord Steward, the Lord Chamberlain,
and the eail of Arundel, at the king's command,
went to the Lord Chancellor, and received
from him the Great Seal, and delivered the
same to his Majesty ; who, bv commission,
hath appointed the keeping of it to him and
the other lords with him.— To the second, his
m jesty hath commanded him to sig-ily to
their lordships, " That he understands sir Hen.
Yelverton, being called here before them the
other day, as a delinquent, answered not us
surh. but as a Judge or Accuser of a member
of this house, the lord of Buckingham. And
whereas, in his first Speech, here in this house,
he touched the king'* honour ; saying, He suf-
sered tor the Pureuis of Inns, or to that t-ft rt,
he was so far from extenuating or excusing the
olfcnce. that the hist diiy he had aggravated the
same. Wherefore his majesty's pleasure is,

4d

US9] STATE TRIALS, 19 James I. 1621 — Proceedings agaimt Sir H. Yclvaiom [1140

that himself wi II be the Judge as to what con-
cerns his own person ; and, as to what relates
to the lord of Buckingham, since he had be-
sought his majesty that it might be left to this
house, so he leaves it wholly to their lordships."
This Message being delivered, the Lords
conceived by it, that the kins intended to take
the Judgment or'hir Henry Yelverton out of
t their hands, as touching his own honour ; his
majesty having been misinformed, that the
Lords had referred it bu' k to him : where-
fore a motion was made, " That the house
should be humble suitors to his majesty that
he would be pleased uot to resume this out of
their hands, but give their lordships leave to
continue Judges thereof." After some debate,
it was resolved, That a committee of the whole
house should attend his majesty at his pleasure;
and that the archbishop of Canterbury, in the
name of the whole house, should deliver the
following Message to him : " Whereas it has
pleased your majesty in a late speech to this
nouse, to require us to do justice upon sir Henry
Yeiverton, in a matter concerning your own
honour; siuce which time some words have
been used in this house, which your majesty
conceives do rather aggravate than extenuate
bis fault ; whereupon your majesty did this day
signify by the lord treasurer, * That of what

* concerns your own honour, yourself would be
' the judge :' the lords knowing your majesty's
tenderness of the privileges of this house, and
their own zeal unto your majesty's honour, do
humbly beseech your majesty to alter your re-
solution ; otherwise, this change may strike
some fear into us, that we are not held so
tender and zealous, in our dutiful aftecti.ms,
in point of your majesty's honour, as we desire
you should think us to be, and are most ready
to yield due proofs thereof."

May 7. The Archbishop of Canterbury re-
ported, " That yesterday, according to t'ie di-
rection of the house, he presented their lord-
' ships Petition unto the kinc, humbly desiring
that his majesty would be pleased that this
house might continue judge» of sir Henry Yel-
verton,. for the matter concerning his majesty's
honour/' At which time his majesty said,

* That, in example of that most famous queen
' Elisabeth, when this whole house was suitors
4 to her, he must return Answer, Answer-less.'
But that this morning his majesty's Answer
was, '* The lords knowing they enjoy their
Honours from him, and under him, he doubts
not but they will be more tender of his Honour
for that cause ; therefore he doth return back
unto their lordships the whole and final order-
ing of tnat Business of sir Henry Yeiverton."

May 8. The Lord Chamberlain declared,
" That the king had commanded him to ac-
quaint their lordships, That although nothing
is so dear unto him as his honour : yet, as be-
fore, so he doth now, put into incis lordships
bands the Cause of sir Henry Yeiverton, not
misuusting their affections to him,, nor their
judgments."

Whereas it was ordered yesterday, That

Thomas Emerson be examined, touching the
Message which he brought sir Henry Yeiverton,
from Mompesson; Mr. Attorney read the Mes-
sage, which fcir II. alledged in bis Speech here
the 30th of April ; viz. That sir H. V. was not
to keep his place (of the king's Attorney Ge-
neral) long, if he withstood the proceedings of
the writs of Quo Warranto for the Inns: the
■said Thomas Emerson was this day called in,
and being examined, said : " I never delivered
any Me'ssasc unto sir H. Y. from Gyles Mom-
pesson ; hut 1 delivered him some Speech by
way of advertisement (not by way of a Mes-
sage), w hich past from Mompesson to me con-
cerning him, which, 1 confess, Mompesson im-
parted ro me, a6 a Message to be delivered uoto
sir H. Y. viz. Mompesson told roe to this ef-
fect : There is a business concerns sir Edw.
Villiers, of the Mint-masters place in the
Tower ; one pretends a former grant : the rest
of the king's counsel had or would deliver their
opinion, Tliat the former Grant is void in law,
and the party unfit to execute the place; only
Mr. Attorney oppo&eth ; but, if he takes these
courses, and refuseth to concur with the rest of
the king's council, to certify bis opinion hi
tilings that are houest, convenient and agree-
able to law, he must not think to be Attorney
a month to an end ; and tell him so. But I
answered, You will not have me tell him so.
Yes (quoth Mompesson) I pray tell him so ;
and, after supper, I took him aside, and asked
him wliether he would have me deliver that
Message to sir II. Y. or no. He answered,
Yes, by any meant, if you love him. — When I
i in pa i ted this unto sir H. Y. he answered me,
This cannot be true, for I never was in better
terms with my lord of Bucks, than now ; and
sir Edward Villiers is one of (he best friends I
have, and this suit I commended to him by the
means of one Palmer. — Sir H. Y. either by
word or writing, acquaints sir Edw. Villiert
with this, as 1 heard : and sir Ed*. Villiers was
discontented with Mompesson for it : where-
upon Mompesson came to me, to know, whe-
ther I had been with Mr. Attorney, and wished
I had uot imparted this Message uuto him; and
told me, that sir Edw. Villiers was much dis-
contented with him for it. He began to wave
it at the first : but afterwards yielded, that be
willed me to tell Mr. Attorney of it ; and af-
terwards Mompesson went with me to sir H. Y.
ond acknowledged the Speeches which were
delivered by me ; and they seemed to be well
saffelied the one with the other, and departed
friends, for ought I could perceive : since
which time I never spake with sir H. Y. but
upon one business; and I never had any Speech
with him touching the Patent of Inns, nor
the grau'ing of any Quo Warranto; neither
had tins Message any relation to the Patent of
Inn*, or Quo Warranto; neither did I ever
hear of any message to him, touching the lord
of Buckingham."

This was read unto him, and he did acknow-
ledge it to be true, and affirmed it upon fa's
oath.

1141]

STATE TRIALS, 19 James I. 1621.- /or Misdemeanors.

[1142

For that his majesty conceives that sir H.
Yelverton hath, by his second Speeches, aggra-
vated the former, the lords directed Mr. At-
torney General to open onto the bouse as well
the first as the second. And Mr. Attorney,
coming to the clerk's table, rend : 1. Part of
the copies of the first Charge upon sir H. Y.
and his Notes tor Answer, written in the mar-
gin thereof by Itim. 2. The Notes written by
sir H. Y. of his second Speech. 3. The Speech
abstracted by sir H. Y. out of those Notes,
which he tent to the king, and which, lie said,
he did speak in the house, and would have
spoken, if he had been permitted. — The day
being/ far spent, the lords determined not to
proceed against sir H. Y. nt this lime ; but to
take another day, to consider upon what point
of those Speeches to think him worthy of
censure.

May 19. The Lords being put in mind,
that, by a former agreement, they are to pro-
ceed this morning in the Business of sir H.
Yelverton ; after long consultation, a double
question was propounded : viz.

1. Whether the Words, or any of them,
spoken bv sir II. Yelverton, in this house, do
much touch the king's Honour, as we yet con-
ceive ? 2 Whether the Word% or any of theui,
spoken by sir H. Yelverton, in this house, may
touch the king's Honour, as we yet conceive?

Mem. Before the question was put, the
house was moved to determine, That they are
not concluded by assenting unto either of the
two Questions; but that they may alter their
opinions upon the hearing of sir 11. Y. ; which
was agreed unto. It was also agreed, 1. To
bear sir II. Y. speak, how he will explain him-
self, before he be censured. 2. That the first
question only, and not the second, should be
put ; which being pur, it was agreed unto.

Ordered, That sir II. Yelverton be brought
into the Court, to answer for himself, on Mon-
day next, and that an Order be made, and di-
rected to the Lieutenant of the Tower, to bring
him at the time appointed, before their lord-
ships.

The king's counsel are to make a collection
of the Words, spoken by sir II. Yelverton in
this house, and to confer with the Judges about
them, and to deliver their opinion unto the
house, on Monday next, before sir II. Y. be
heard : and the king's counsel are to inforcc the
Words against him.

Sir Henry Yelverton lately sentenced in the

Star-chamber.

May 14. The Lord Treasurer delivered a
Petition, which sir II. Yelverton exhibited to
his majesty; with his majesty's pleasure, that
it he read m the house ; and the same was reud
accordingly :

Sir H. Yelverton, in Michaelmas term last,
was sentenced in the fctar-chamber, for brmch of
trust, in the unwarrantable passing of a Charter
to the city of London, tending to the disherison
of his majesty, both in matter of kingly power
and high prerogative, and also in matter of

revenue and profit of the Crown, and also to
the oppression and grievance of the subject, by
mining excessive Fees and Exactions. The
Sentence consisted of these parts : 1. Impri-
sonment in the Tower. 2. A fine of 4000/.
3. A Declaration of disability and unfitness to
hold the place of Attorney.

Sir Henry Yelverton's Speech.

Under this Sentence, sir H. Y. su Hereto at
this day, for he is a prisoner in the Tower, re-
moved from the place of Attorney, and the fine
is leviable upon him at his majesty's pleasuu*.

lttth of April last, he w;is brought 10 the bar
in parliament ; and being there charged, inter
alia, with some miscarriage touching the Patent
of Inns, he said, " If he ever deserved well of
his majesty, it was in that ;" adding, " That
the king and subject were more abused by that
patent than by any other ; and that he suffers
at this day for that patent, as he takes it."

30 April, he was again brought to the bar ;
and, in his Speech, uttered as followeth :

" I cannot but present myself this day be-
fore your highnrs> and my lords with much
fear, with more grief; for I am compassed with
so many terrors from his majesty as I might
well hide my head with Adam. His lordship's
displeasure wounds roe more than the consci-
ence of any of these facts ; yet had I rather die,
than the commonwealth should receive so much
as a scratch from me. — I, thatin none of my ac-
tions feared the great man, on whom they (by
sir Edward Villiers and sir Gyle* Mompesson)
did depend, mu< h less would I fear them, who
were but his shadows ; but, my most noble
lords, knowing that my lord of Buck, was ever
at his majesty's hand, ready, upon every occa-
sion, to hew me down, out of the holiest fear of
a servant not to offend so gracious a master as
his majesty hath ever been to me, I did commit
them, viz. the Silkmcn."

And, speaking concerning the Patent of Inns,
he said, " I cannot herein but bemoan my un-
happiness, that, in the last c;iose, labouring
by all lawful means to advance the honest profit
of his majesty, and in this (with the &igl»t al-
most of my own ruin) to preserve his majesty's
honour and the quiet of the people, I am yet
drawn in question, as if I had equally disho-
noured his majesty in both. — When sir Gyles
saw, I would not be wooed to offend his ma-
jesty in his direction, I received a message
from Mr. Emerson, sent me by sir Gyle**, That
I would run myself upon the rocks ; and that
I should not hold my place long, if I did thus
withstand the Patent of Inns, or to this effect:
soon after came sir Gyles himself, and, like an
herald at arms, told me to this effect : he had
this message to tell me from my lord of Buck.
That I should not hold my place a month, if I
did not conform myself in better measure to
the Patent of Inns; for my lord had obtained
it by his favour, and would maintain it by bit
power. — How could I but startle at thit mes-
sage ? For I saw here was a great assuming of
power to himself, to place and displac* mi offi-

1149] STATE TRIADS, 19 James I. 1621 — Proceedings against Sir if. Yehertm. [1144

cer. I saw myself cast upon two main rocks,
either treacherously to forsake the standing his
majesty bad set me in, or else to end a 1. per my-
self by a by-blow, and so hazard my fortune.
I humbly beseech your lordships, to think na-
ture will struggle, when she sees Iter place and
means of living thus assaulted : for now it was
come to this ; whether I would . obey his ma-
jesty, or my lord, if sir Gyles spake true : yet
I resolved, in this, to be as stubborn as Mor-
decai ; not to stoop, or pass those gracious
bounds his majesty had prescribed me. — Soon
after, I found the message in part made good ;
for all the profits almost of my place were di-
verted from me, and turned into an unusual
channel, to one of my lord's worthies, that I
retained little more than the name of Attorney.
It became so fatal, and so penal, that it became
almost the loss of a suit to come to me ; my
place was but as the seat of winds and tem-
pests.

" HowbeitI daresay, if my lord of Buck,
had but read the Articles exhibited in this
place against Hugh Spencer, and had known
the danger of placing and displacing officers
about a king, he would not have pursued me
with such bitterness. — But my opposing my
lord in this Patent of Inns, in the Patent of
Alehouses, in the Irish Customs, in sir Robert
Naunton's Deputation of his place in*the Court
of Wards : These htive been my overthrow ;
and for these I sutler at this day, in my estate
and fortune, not meaning to say as I take it,
but as I know, for my humble opposition to his
lordship, abo*e 20,000/. I sutler in my estate
by my lord of Buck's means ; knowing well,
that I suffer in my restraint justly, for my
offence. My henrt tells me I was faithful to
him ; I sought no riches hut his grace/'

Which being read, and sir II. Yelverton
brought to the bar, Mr. strj. Crewe and Mr.
Attorney General opened the Charge against
him ; and shewed, that those Speeches of his
did directly point at the lord marquis of Buck,
and by consequence fastened a scandal on his
majesty.

And sir Ilenry Yelverton (having leave) ex-
plained himself touching the »a id Spceche«,ard
did make his Defence unto the same Charge,
which was very long. Then he was withdraw n ;
and ordered, That he should be brought again
to-morrow in the afternoon, and at that time
to be proceeded against.

May 15. The lords, being put in mind of
their appointment yesterday, to proceed against
sir II. Yelverton at tl is time, it was put to the
question, Whether the said *ir H. Y. is worthy
to be censured for Words spoken by him in
this house, which touch the king's honour; and
generally agreed unto by all, nem. diss.

The time being spt nt, and most of the lords
Laving nut their rob>< ready, as not expecting
to give Sentence against *ir H. Y. at this day,
they agreed notwithstanding what Censure
they will give against him : viz. 1. To be fined
to the kino's majesty, at 10,000 marks. 2. To
bft imprisoned in the Tower, during the king's

pleasure. S. To make such Acknowledgment
of his fault and Submission to his majesty, as
shall be prescribed unto him by this court ; the
same to be here at the bar, either in the king's
presence or in his absence, at the king's plea-
sure.

The Lieutenant of the Tower had warning
given him by the gentleman usher, to bring sir
H. Yelverton hither to-morrow morning, by 9
o'clock.

The lords agreed to be Jjere to-morrow
morning in their robes, and to proceed to Sea*
tence sir H. Yelverton :

1. For the matter touching the king's Ho-
nour. 2. For the Scandal of the marquis of
Buck, Lord Admiral. 3. For the matter com-
plained against him by the Commons.

Mem. That the house agreed to more the
king's majesty, to mitigate sir II. Yelverton's
fine. Whereupon the Prince his highness ok
fered to move his majesty therein.

Sir Henry Yelverton1 '* first Judgment.

Sir Henry Yelverton being this day at the
bar, and the lords being in their robes, the
Lord Chief Justice pronounced the Judgment,
in hac verba :

" The loi*ds spiritual and temporal of this
high court of parliament do award and ad-
judge : 1. That he, the said sir H. Yelvertoa,
for his Speeches ottered here in this court,
which do touch the king's majesty in Honour,
shall be fined unto the king's majesty at 10,000
marks. 2. That he shall be imprisoned in the
Tower, during the king's pleasure. 3. That
he shall make such Acknowledgment of his
fault, and such Submission to his majesty, 11
shall be prescribed unto him by this court ; the
same to be made here, at the bar, either in the
king's presence, or in his absence, at the king's
pleasure."

Sir Henry Ytlvcr ion's second Judgment.

This Judgment being pronounced against (be
said sir II. Yelverton, for the said Speeches
which touched his majesty in Honour, and the
prisoner being withdrawn ; the lords took into
their consideration that the said Words, and
many others spoken here in this hou>e, at the
same time, by the said sir H. Y. did direr dy
tend to the scandal of the marquis of Buck,
lord high admiral of England; and theietore,
by their lordships appointment, the s.ud sir H.
1. was called in again, and brought 10 the bar,
and was charged, with the same scandalous
Speeches, l>y the said king's serjeant and attor-
ney general ; and whereas th«j gnatesi mat er
of averment, on his part, did depuid on a Mes-
sage which he the said sir II. 1 . nmnred was
delivered him by Mr. Tho. Emerson ♦rom Giles
Mompessoii, the Deposition of tie *aid Mr.
Emeison, taken I ere in court the 8th 01 Vt.ij,
was read bv the clerk, wl irein the said • ho.
Emerson did, up«>n his oath, absolutely i!iny
the said Message : and the said sir H. Y. hav-
ing leave to speak for himself, and being beard
without interruption, he did not give the boust
any good satisfaction for the scandsjottt

1145] STATE TRIALS, 19 James I. 16il.— Proceedings against Sir John Bennett. [1146

Speeches here by him ottered against the said
lord marquis of Buck. Wherefore, he being
withdrawn from the bar, and the said marquis
also withdrawing himself out of ttie parliament
presence, the lords spiritual and temporal hav-
ing lone debated the matter, their lordships
did resolve, That the said sir H. Y. was worthy
to be censured, for false and scandalous Words
spoken by him in this house, against the said
Lord Marquis ; and being fully agreed on their
Censure for the same, the? lord marquis of
Buckingham was called in ; and, the prisoner
being brought to the bar, the Lord Chief Jus-
tice pronounced the Judgment against him, in
kmc verba :

" The lords spiritual and temporal of this
high court of parliament do adjudge and award :
1. That sir Henry Yelverton, knight, for his
nlse and scandalous Words, uttered in this
high court of parliament, against the lord mar-
quis of Buckingham, lord high admiral of Eng-
land, shall pay 5000 murks unto the said mar-

quis. 9. That he shall be imprisoned. S.
That he shall make such Submission in this
court to the said lord marquis, as this court
shall p^esc^ibe.,•

This Judgment being given, it pleased the
lord marquis of Buck, freely to remit unto the
said sir II. Yelverton the said 5000 marks ; for
which the said sir H. Yelverton humbly thank-
ed his lordship. The lords also agreed to move
his majesty to mitigate sir Henry's Fine, and
his royal highness the Prince offered to under-
take that office.

Soon after the king wholly relinquished the
Fine due to him from sir Henry on the Sen-
tence ; he was set at liberty, reconciled to the
marquis, and was esteemed, says Ru»hworth,
' a man valde cruditut lege, in his time/ — In
the succeeding reign he was made a Judge of
the Common Pleas. He was author of the
lieports : his father was Speaker of the house
of commons, anno 1597, see 1 Cobb. Pari.
Hist. 895.

119. Proceedings in Parliament against Sir John Bennett, knt
for Bribery and Corruption: 19 Jamks I. a. d. 16*121. [Lords'
Journals. 1 Cobb. Pari. Hist. 1Q36.]

soner, under the custody of the sheriffs of Lon-

April 24, 1621.

lHE Lords received a message from the Com-
mons to this effect : " That they had received
Complaints of divers exorbitant Oppressions
and Bribery, committed by sir John Rennet,
knt. late a member of their house, but new ex-
pelled by them for the same ; that they desire
a conference also about hitu." Agreed, that the
Lord* will meet the Commons at tour this after-
noon, in the Painted Chamber.

April 25 The Lord Treasurer made report
of the Conference yesterday with the commons,
touching sir John Bennett ; the effect whereof
•was, That whereas the said sir John Bennett,
knight, Judge of the Prerogative Court of Can-
teibury, b ing directed by the law both what
tn do, and what Fees to take, he did both con-
trary to the law, rxueting extreme and great
Fees, and much Bribery; some Complaints
aguiisr him were opened, with a request of the
commons, thut the y mi^hr send up more against
him hereafter, if any came unto them.

The Petition of sir John Bennett unto the
Lords of this house, was read; humbly shew-
ing, that he is lept close prisoner, under the
custody of the slicntft of London, in his own
house ; and humbly desiring to have the liberty
of his own hou*e, upon good security.

Many motions being made by the Lord*, in
what sort, and how far, the Petitioner should
have this liberty granted him, it wan at Inst
agreed and ordered, in manner following : viz.

M Whereas sir John Ben net, knt. this day pre-
sented his humble Petition unto tlie lords spi-
ritual find temporal of this high court of parliu-
■sent, shewing, that he is now kept close pri-

don, in his own house ; and humbly desiring
that their lordships would permit him the liberty
of his own hous«», upon good security by him
given ; it is this day ordered, by their lordships*
That, if the said sir John shall nominate unto
this court the names of such sufficient persons,
that will be bail for his forth-coining, and the
court shall like of their tumciency, then, upou
their bond of 40,000/. given here in open court,
he the said sir John shall have his liberty, or
eUe he shall be committed prisoner to the Tower
of London, and have the liberty thereof. And
it is left to the choice of sir John Bennet, either
to put in such good bad as is required, or to be
committed prisoner to the Tower."

May 30. The Earl of Huntingdon reported,
That his lordship, and the other lords joined in
committee with him, have taken divers Exami-
nations in the Cause of sir John Bennett, Judge
of the Prerogative Court of the province of Can-
terbury, by which they lind him icuilty of much
Bribery and Corruption ; of which a collection
was made, and his loid»hip delivered the same
to Mr. Serjeant Crtwc.

The Kail of Southampton also made the like
Report, and delivered the Examinations, and
the Collections of the Bribery and Corruptions
where* ith the said sir John is charged by the
same, unto Mr. Attorney General.

Sir John Rennet'* Cbaige.

The several Collections, with the names of
the Witnesses examined for proof thereof, be-
ing first read, sir John Bennet was brought to
tlie i.ar.

Mr. Serjeant Crew* shewed, That the said

1147] STATE TRIALS, 19 James I. l6^U^Procf€dmg$agmfUiSirJoknBennHtf [IMS

sir John Bennett, being Judge of the Preroga-
tive Court of the province of Canterbury, and
being directed by the law what fees to lake for
probate of wills, and unto whom to grant let-
ters of administration, he had perverted the
course of law for Bribes ; and, being therewith
corrupted, he granted administrations contrary
to. the law. lie charged the said sir John with
these particular Bribes and Corruption* • and
read tne Examinations of these Witnesses, for
Proof thereof : viz.

" R. Luther, 1619, died intestate, without
issue ; Abigail his widow, requiring administra-
tion, paid 44s. ; hut, being opposed by Thomas
Luther (a brother), at two several times, gave
sir John Ben net, 44/. more; and yet he granted
administration unto her and Ttiomas Luther
jointly. Proved by the Examination of Tho.
Tyler, Wm. Owen, Abigail the widow.

'* Before sir John joined Tho. Luther in ad-
ministration with the widow, he promised sir
John Bennett 100/. ; and, after he was joined,
he gave him 1'20/. Proved by the Examination
of Thomas Luther.

M For allowance of the Administrators Ac-
compt*, bir John had 100/. to distribute amongst
the kindred of the intestate, and 50/. for pious
uses, and seemed disconteut he had not 60/.
more. Proved by the Examination of John
Worsley, Abigail now his wife.

" William Bannester, 1615, died intestate.
His widow gave to sir Jolin SO/. 165. for admi-
nistration. Proved by the Examination of
Richard Williamson, James Godscall.

" Hercules Wytham claiming to be executor
by will, first gave sir John 5 pieces ; then Sam-
ford (sir John's man) undertook for 20 pieces
more to his master, and 5 t> himself, to pro-
cure him a good end ; which end was against
the Will. Proved by the Examination of Her-
cules Wytham.

" Sir W. Whorwood died 7 years past. Field
Whorwood, a younger son, and a daughter,
offered to prove a Will ; Thomas Whorwood,
the elder brother, offered to prove a second
Will ; Badsor, the proctor, promised sir John
100/. for his hand to Field Whorwood, but paid
only 34/. to him, and to his man Samp ford 6/.
Proved by John Badson.

** Thomas Whorwood, by advice of Snmpford,
gave sir John 38/. yet sir John gave Sentence
against him. Proved by the Examination of
1 homas Whorwood, John Babham.

" George Sturges dying intestate, Francis
St urges, his kinsman, offered sir John, for admi-
nistration, 20/. in gold, which, sir John said, was
too light ; then be gave him 40/. and had them.
Proved by the Examination of Robert Davies,
{lobert Sturges, Robert Labourne.

" Phillip H.ill.nan died 1619. Phillip Holl-
man exhibited his father's Will; a caveat being
entered, he sent by Kjelvcrt 20 pieces to sir John
for his favour; which he accepted, and de-
manded 20/. more,jwhich K el vert promised, but
paid not. Proved by the Examination of Phil-
lip Hollman, Rd. Kifvert, proctor.

" James tingard, 1618, died intestate. John

his brother, and James bis nephew, contended
for administration ; for 50/. paid sir John, and
5/. to Sampford, John the brother obtained ad-
ministration, which after was revoked. Proved
by the Examination of William Basse, proctor.

*' Robert Severs, 1618, died intestate, his
children minors.' Simon Spacburst gave sir
John, by direction of Sampford, 20/. fur admi-
nistration (durante tnmore ittatt), which was
revoked two days before Spachurst was to have
had a cause heard m the Chancery, which coo*
cerned that estate. Proved by the Examina-
tion of Wm. Basse, proctor.

" Henry Rylye, 1610, died- intestate. John
Rylye sued for administration. He gave sir
John 50/. ; and sir John procured from John
Rylye nine rings, set with diamonds, pawned
to the intestate for 30/., but were not worth
10/. ; Anthony Ashly and Tho. Welles, two of
the kindred oi the intestate, ttgreed with Samp-
ford to give sir John 30/., and 10/. to Samp-
ford, to procure sir John to order them part of
the intestate's estate ; then he ordered them
300/., which John Rylye was euforced to pay ;
and the said 40/. for the Bribe to sir John and
his man. More, sir John had a piece of plate,
; which cost 4/. 16*. 6V/., to change the great
bond for true administration into a less.
Proved by the examination of John Rylye,
Anth. Ashley, Tho. Welles. /

" Jane Come, widow, died intestate; yet
Francis Winscombe pretended a Will, pen-
dente lite. Sir John received of Win. Pound,
her next kinsman, 40/., to grant him adminis-
tration, which this deponent paid. Sir John
would not give administration, unless he might
have 40/. Proved by the Examination of
Lewes La&hbrooke. — The deponent's adminis-
trators in trust to perform her Will, for ob-
taining of administration, gave 60/. in hand to
sir John, and their bond to pay 50/. more three
months then next after, and 25*. for forbearing
the last 50/. Proved by the Examination ot
John Davies, Rowland Johnson.*1

The day being far spent, the house was
moved, not to have any more read at that time;
whereupon the Prisoner was withdrawn ; and
ordered. That he be brought hither again to-
morrow morning. 4

May 31. Sir John Bennett being called in,
Mr. Attorney General opened another part of
Bribery and Corruptions, wherewith the said
sir John is charged, and the Proofs thereof: vix.

"4< He received of Mr. Megges, on the behalf
of Mrs. Pill, for the continuance of an admi-
nistration formerly granted to her, and sought
to be revoked, the sum of 4G/. 13*. 4d. Proved
by the Examination of Kdw. Willett.

" He received of the widow of Hugh Lee,
for the administration of her husuami'* goods,
wherein she was crossed by Caveut, put in by
i he means of Stamford, sir John's man, 35r.
Proved by the Depositions of Edw. Willett.

" He received of »ir Edw. Scory, for the ad-
ministration of his father's goods, 100/. Prov-
ed by sir Edw. Scory.

" He contracted with Edmund Mdton to

1149] STATE TRIADS, 19 Jambs L 1

have SO/, for the administration of the goods
of John Clovill : and, the money being brought,
there fell 5/. more casually out of his pocket ;
whereupon he took that also, and would nor
otherwise grant the administration. Proved
by the Examination of Edmund Malton.

u He received of sir John Brand, for an ad-
ministration of his grandfather's goods, 50/. ;
and this was by way of contract, sir John
pressing to have more. Proved by the Exa-
mination of Tho. Newman, sir Rob. Hichem.

" He received of John Hull, for ftwoor in a
suit touching the probate of the will of one
Holoinn, 20/7 Proved by the Examination of
John Hull.

" He received of Wm. Huckmore, for the
administration of the goods of Philip Huck-
saore, tS/. Proved by Rd. Williamson.

" He received of Tho. Allen, for the admi-
nistration of his father's goods, 5/. Proved by
SUL Williamson.

"He received of Solomon and John Man-
sell, for a dividend out of their brotlier's
estate, £0/. ; and then gave them but 300/.,
out of an estate of 8000?. ; having received,
from the widow of tbe intestate, as site hath
confessed, 100/., to the intent he should allot
them no more. Proved by Solomon Mansell.

u He received of sir Rd. Coningsby, for an
administration of the goods of George Pollard,
HOI. Proved by Edw. Willett.

* He received of Edw. Willett, foranadini-
uittratioii, 10/. Proved by Edw. Willett.

u He received of Samuel Neast, for his fa-
vour in proving a nuncupative will of John
Neaat, 10/. at one time, and 5 pieces at ano-
ther, and enforced him to pay a debt of 514/.
to one Fisbburne, for which Fishburne had nei-
ther specialty, nor so much as a subscription of
the testator to his book. Proved by Samuel
Neast.

" He received of the same Samuel 60s. for
making a report into the court of Chancery.
Proved by Samuel Neast. a

44 He received on the behalf of Hester Mi-
chel), for administration of the goods of Edward
Michell her father, SO/. Proved by William

'• Flower Hetishaw, widow, died intestate,
in March, 161 6, possessed of a personal estate
of ll,f40/. 2f. la. and for the granting of the
administration of her said goods unto Benj.
Henshaw, the said Benjamin did deliver unto
Saroford 900/. of which sum be verily belicveth
sir John had the greatest part, besides 90/. It. Id.
to pious uses. Proved by Benj. Henshaw.

"- Andrew More, about two years since, died
intestate ; the administration of whose goods
was, by consent of one Clearke, and others,
granted to tl»e eldest brother of the said More ;
for which sir John had 60/. besides a gratuity
given to Samford. Proved by Wm. Oiand,
John Ode.

u Humphrey Rusearrock, of Pynchley, in
Nov. 1616, made his will, and did make Phil-
lip© his wife his executrix, and died ; which
* ill. being controverted, she first gave SO old

m.—jbr Bribery and Corruption. [1150

angels to sir John to have the same will proved
iu common form ; and, after sentence given,
for the proof of the said will, 40/. Proved by
ltd. Williamson.

" Dr. Tiglte, in Sept. 13 Jac. made his last
will, and died ; and made Mary his wife execu-
trix, upon condition that she should prove rhe
will in due form of law. And that Wm. Tighe,
brother of the said doctor, could not have a
copy of tbe said Will from sir John until he
had given him 10 pieces ; and afterwards, the
said Wm. Tighe having spent a great part of
his estate, about tbe probate of the said Will,
and being delayed therein, one Lister, >ir John's
man, said unto the said Tighe, that, if he wofcld
give, unto his master 100/. and a gelding of 10/.
and unto the said Lister 10/. then bis master,
sir John, would sentence the will for hiin ; who
answered, he could not provide so much money
presently, but he would put in good bonds for
the payment thereof. But the said Lister said,
he would not have any bonds : and that, if he .
would not bring his master 40 pieces, that
then one Or. Bauorofte, brother to the said
executrix, should have Sentence ; whereupon
he procured 15 pieces, and brought them to sir
John, who would not accept thereof; saying, He
would not take paper for gold And thereupon
the administration of the goods of the said Dr;
Tighe was granted unto the said Mary, by the
procurement of the said Dr. Bancrofte ; upon
which the said Lister said that a halting proctor
had brought gold from the said Dr. Bancnifte,
and that he had over- weighed him. Proved
by Wm. Tighe, Tho. Stiles, Rd. Maxey.

" Sir Henry Middleton, kt. made his last
will and testament, and therein made David
Middleton his brother, and Henry Middleton
his son, executors thereof; and that Alice Mid-
dleton the wife of tbe said David, did give 40/.
to sir John to have die administration of the
goods of the said sir Henry Middleton granted
unto her, during the minority of the said Henry
the son. Proved by Rd. Williamson.

" Mary liawley, about six years since, died
intestate, of an estate worth 6 or 700/. and
Robert Ilanbury gave to sir John 00/. and
more, for the administration of her goods, a? it
was confessed by John Ray, upon his death-
bed. Proved by Jane Fenwick, Eliz. Haley.

" That Mr. Ashton, by the hands of Phillip
King, did give to &ir John's laxly a Spanish car-
ronet, or girdle, about the value of 100 marks,
for the kindness he had received of sir John
about an administration of the goods of—.
Proved by Philip King.

" That Rd. Hawley, about five years since
dying intestate, and the administration of his
goods being granted to one Ilenbury during
the minority of his children, sir John hud 20/.
or 20 pieces, given him by the said Ilenbury.
Proved by Tho. G carts.

" That tJeorge Scarlett, in June, 1C15, died
intestate ; and that sir John would not grant
the administration of his good* unto Peter
Scarlett, until the said Peter had given the
said sir John 10/. in gold in hand, and 5/. more

1151] STATE TRIALS, 19 James L 1621.— Proceeding* again* Sir JoknBamttt, [115*

to be paid shortly after ; which was paid ac- And it is ordered, That the king's annuel

cordingly. Proved by Peter Scarlett/' shall only opeu the Charge and Proofs against

Sir John BenncU'i Defence. him> but uot to m(orm "J ***** against bin

This being read by Mr. Attorney General, »t the hearing.

rlie lord chief justice demanded of sir John Jt Is <>!*"*> ^ ^^ 8,r J^> jBennett

Bennett what Answer he would make unto m^ be bailed> uP°n ^Q00^ '> ^nds to J*

the same; who answered to the effect follow- taken J*** m cour> ""* *?fh 8ure"« *» **

ine : viz. court shall allow of; and, if he cannot procure

"I come, in all humility, to prostrate myself •»«*>«• that amongst them will be bound in so

at your lordships feet. If your lordships ex- If**11 »"»» !beQ j* sb^1 remain pnsonerwitb

pect a speedy and perfect Answer at this time, "*?**"?* ™ London- .

I hope you will excuse me, as being surprized S? Joha ***?*} **?ng called ul1Sain' "^

with such a tempest of affliction.— The parti- at *e bar> th€; '^ «■** J«»uce told him, bow

culars of my Answer run through the compass ***** the lords had granted his RequesU;

of 19 years, : the whole time of my being Judge a"d fj8? tba5, tbe,r lo«i»™P» were P1***"* te

of the Prerogative Court of Canterbury), which th°™ °f baJ,ed; ^ . . • . .

doth constrain me to beseech your lordships to And ™? ***« Ch\*[ Just lce>.b/ 1 <»»«*<«-

give me some time not only to call to mind the racnt. "f.tbc housf » ** ^omsh him not to

acts of judicature of mine own court, but to ™P™ hlt estate, but that it remain in thenmt

confer with others also.— I humbly desire to P^ht M wben he WM first complamed of here

have a copy of ray Charge; and what I am m court ; and also to satisfy Mrs. Eu». Skorye

justly charged with I will confess, after I have for. M<»* which he hath of her money, as

luultimeto consider thereof. Those whereof left 7,thb,m in ^P0*?} ™d }° "^U1*

I am otherwise accused (as of many), I desire J*™'- ,wl?Icn rcmams ,n b,t n»nds, of sirTho.

(as by the law of nations I ought) to nave liber- Bodkj'* legacy to the university of Own. •

ty to peruse the Accusations, to exhibit cross A Un* wl"cb m ^obn Bennett answered, "I

Interrogatories, and to procure Witnesses to do acknowledge the honourable favour of this

be examined, and to have counsel allowed me ; Cou.rt» tbe g°odiH*s and grace of God, to put

and, lastlv, I humbly beg at your lordships me ,nt0 your |iands» and these mvouw towards

hands, even for justice sake, time proportion- merin your neart?;. ¥rf-vSkoryc* ™**ll

able to the multitude of these Accusations, to c?nfes8 due> ■»<* Wl" «1VC ber J ^/V*011 **

make my Answer. And 1 doubt not but so to the same. As for the i other 1000/. I have per-

extenuate them all, that, when your lordships formed as much as sir Tho. Bodlcy required,

shaU see and cons.der tbe ground of them, you ^'ing laid out other moneys for the Umver-

will not hold me so foul a guilty man as I am flJ of Oxford, which I intended to hare done

accused for. I am the first ecclesiastical officer (whatsoever I may do yet) out of my own

_„ produced _. .„„^.. ........ .«, ■.«» - r - ti

above 200/. per annum, since I was j»dee ; and my Sureties in another lOCX)/. more,
whereof if I cannot give good account, I will Sir John Bennett being withdrawn, it
beg my bread all mv life." Put *>. the question, Whether the former Order
_. _ »>*,.,, , touching lus Bail should stand, or to be altered
Sir John Bennkt bailed upon 20,000/. according to his reouest; aud agreed, The
The Prisoner being removed, the house took former Order to stand.
Into their consideration the be Requests of sir June 4th. The parliament was adjourned.
John Bennet ; and, after deliberation thereof, At the next meeting we hear no more of the
their lordships were pleased to grant the same Proceedings against sir John, than that he made
thus far : viz. " That he should have, 1. Time his appearance to save his bail, and was or-
till the next access of the parliament, to uiake dered to attend from day today; which proved so
his Answer. 2 Counsel to udvise with only ; tedious, that he petitioned the house either to be
but no counsel here in court to defend his tried, or discharged from so close an attendance,
cause. 3. Liberty to examine Witnesses ex Thin was not complied wi(h, and he was
sua parte. ; not to examine any upon cross lu- obliged to wait, without any Trial, till tlie 17th
terrogaton*s. And hi* Witnesses are to be of Dec. on which day it being signified to the
sworn here in court upon surh Interrogatories house, That sir John was so sick that he could
as lie should deliver aud the court allow. 4. not, without great danger of his life, make his
To have copies ofth« Heid> of the Charge; personal appearance, it was agreed that the
hut no names of any Witnesses or Proofs. 5. said sir John should stand upon his bail for his
To have leave, at th«a hearing, to take Kxcep- appearance, but not to incur any danger of Tor-
tious unto the witnesses produced against him ; feiture for his non-appearance, at this time, by
and the names of the wit in *ses are to be deli- reason of his indisposition. Thereupon tbe
ven d him at the hearing. 6. Libeny to search Lord Keeper acquainted the house, That many
tbe records of bis own court, and his own Petitions were exhibited, every morning, against
writings. the said sir John, which were milch calW

* II ■!

1153] STATE TRIALS, 19 Jam* si. 1621 .-^Proceeding* against Edward Flcyde. [1154

upon. It was agreed, " That, lest die justice
and care of this bouse, to question the said sir
John for the same, may be doubted of, notice
shall be given to the petitioners thai this time
waa designed for greater affairs, and too short
now to proceed agsiinst him upon those Com-
plaints; but that the lords did resolve, at the

nett access, to proceed against him effectually."
As this next meeting never took plnce, in this
reign, it is very probable, if sir John did not
die of this illness, that he got off his trial and
censure by the confusion of the times ; for his
hail would be discharged in course, at the dis-
solution of the parliament.

120. Proceedings in Parliament against Edward Floyde, for
scandalizing the Princess Palatine: 19 James I. a. d. 1621.
[Journals of both Houses. 1 Cobb. Pari. Hist. 1250.]

May 5, 1621.

HE House of Lords was moved to take into
consideration an act, lately done by the Com-
mon*, in convening before them (he person of one
Edward Floyde, in examining of witnesses, giving
Judgment upon him, and entering it ns an act
of their own. That this proceeding trenched
deep into the privileges of their house, for that
mil Judgments do, properly feud only, belong
unto the Lords. Therefore, it was resolved not
to suffer any thing to pass, which might preju-
dice their right in tins point of judicature ; and
yet, so to proceed, as that the love and good
correspondency between both houses might be
continued.

The Commons had been some time engaged
in examining witnesses against this Floyde ; and
having sufficient proof of his speaking the Words
be was accused of, on the 1st of May proceeded
to give Judgment against him. Many argu-
ments ensued on what punishment to inflict
upon him; and, among the rest, sir Edwin
Sandys said, " That the house ought to be well
advised, since there was much difficulty in the
cute : that their Sentence would be censured
iii a great part of the Christian world: that the
root of this man's malice was ill-affection to
Religion, and consequently, to the state. There
were but two eminent persons before, viz.
kiug Edward 6, and Queen Jane, who had
escaped the virulent tongues of oppotites in
Religion. This lady Elizabeth was the third,
who was much praised by all her enemies.*
That he was lor joining with the Lords in this
proceeding ; was it not for the great business
they had, and .should soon bring before them :
In the Sentence not to meddle with his religion,
but his offence in tongue ; for that would
make him he canonized: that the words he
bad spoken were words of contempt, not of
slander ; therefore to puiu*h him with as much
contempt as may be, ore."

Sentence of the Commons.

On the whole, the Commons agreed on a
Sentence, which the Speaker denounced against
Cite offender,, kneeling at their bar ; which Sen-
tence, was ordered to he entered in their jour-
nals, and is, " He it remembered, that upon

<\ "
• The princess Palatine, the king's daughter.

Tuesday, the 1st day of May, in the year of the
reign of our sovereign lord James, by the grace
of God, king of England, &c. ti-e 19th ^Ed-
ward Floyde, late of Clunnemayne, within the
county of Salop, esq. was impeached before the
Commons assembled in this parliament, for
that the said Edward sit hence the summons of
this parliament in the prison of the Fleete, hav-
ing communication concerning the mo*>t illus-
trious princess the lady Klizabeth, only daughter
of our said sovereign lord, and (he most excel-
lent prince her husband, did use and utter,
openlv nnd publicly, I a he, malicious and de-
spiteful speeches, of the said two uiinces; say-
ing in this manner, * 1 hive heard, that Prague
4 is taken ; and Goodman PaUgrave and Good-
' wife P»l«grave have taken their heels, and
' i uu away ; and as I have heard, Good wife
' Ptdsgrave is taken prisoner ;' and that those
words were spoken by him, in most despittful
and scornful manner, with u (leeriug and scof-
fing countenance, aud with a purpose to dis-
grace, as much as in him lay, those two prin-
ces ; and that at other limes lie did, in like
despiteful and reproachful manner, use other
malicious and opprobrious words of them.
Whereupon the said Commons of their love
and zeal to our said sovereign lord, and not
minding to let pass unpunished those things,
that tended to the disgrace of his majesty's
issue, a part of himself, who is head of the
parliament, did call before them the said Ed-
ward Floyde, and thereof did question him ;
and thereupon so far proceeded, that after upon
the same day, for that the said matters, whereof
the said Edward was impeached, were true and
notorious, therefore the said Commons in the
Commons House assembled in parliutnent did
adjudge and award, that the said Edward
should be returned that nii>ht prisoner to the
Fleete, where before he remained in prison,
and to lie that ninbt in a place there, called
Bolton's Ward : aud shall tlie next morning be
brought to Westminster, into the great yard
before the door of the great hall of pleas, and
he there set, and stand, upon the pillory, from
9 until I 11 of the clock, in the forenoon, with
a paper upon his hat, with this inscription, in
capital letters, of these words; * For false, ma-
1 hcious, nnd despittful Speeches, against the
' King's Daughter, and her Husband ;' and
from thence shall pretently ride to the Ev

4*

1135] STATE TRIALS, 10 James I. I W. —Proceedings again* EdvnrdFhyde* [1156

change within the city of London, upon a horse
without a saddle, with his face backwards to-
ward the horse's tail, holding the tail in his
h»nd, with the former paper on his head;
and he there again set, and stand, upon the
pillory, two hours: and frtfm thence shall ride,
in like maiu.cr, to the Flccto, and there to re-
main uoiil the next Friday morning; and, on
that mcrnicg, to ride in like maimer, into
Cheapsidc, in the city of Loudon, and there
shall he set, and stand, upon the pillory, with
the f iniier paper and inscription, by the space
of two hours, that is, from 10 until \1 of the
clock in the forenoon of that day; and ride
hack to the Fie t<», in like manner as hefore :
A n J that there is set, and asaisacd upon him, a
fine of 1000/."

This Proceeding the Lords judged to be a
great infringement of their privileges ; and, on
the day aforesaid, after mature deliberation of
the matter, the lords sent a message, iti writing,
to the commons, by two of the Judge*, import-
ing, " That the Lords, during all this parlia-
ment, have had much contentment in the good
correspondency that hath been between both
houses : that their lordships have an earnest
affection, and an assured confidence of the
happy continuance of it to the end; with a
full resolution of all possible endeavours, on
thtir parts, tending thereunto. Their lordships
having heard of a Censure lately passed in that
house, against one Edward Floyde, are desirous
of a Conference for the accommodation of that
business in such sort as may be without any
prejudice to the privileges of cither house.
This Conference they desire, if it may stand
with the occasions or that house, mny be be-
tween the whole houses, at 3 in the afternoon,
in the Painted Chamber ; with power to each
committee to treat and confer freelv, and to
under>tand each other's reasons." — To the end
that the Lords might agree amongst themselves
in what manner to proceed at the said Confe-
rence, the home adjourned ad libitum ; and,
being returned, it was resolved, That the arch-
bishop of Canterbury should begin, and the
Lord Treasurer, the Lord Chambcuaiii, and
the earl of ^Southampton, should argue and dis-
pute about it. — Answer returned from the
Commons by sir Lyuiicl C ran field and others:
" The knights, citizens and burgesses of the
House of ( 'ominous, have commanded me to
let your lord-hips understand, that they take
great comfort in the message which voiir lord-
ships »ei»t them, and desire the happy continu-
ant *c of* the love and unity of both house*.
Their wln-le hoi^c, as a commute?, will attend
your lordships at the conference desired, and
at the time and place appointed."

Mny />. p. m. After consulting a precedent
shewn their lordship* by Mr. Serjeant Crew,
1 }\w. *1, which proved, That the Commons
were not Judges in parliament ; hut that judi-
cature hcliing* unto the King and Lords alone,
the whole house went, at a committee, into the
Painted Chamber. And, being returned, the
- house was resumed ; when it was agreed, that

the judges and king's council should make a
report of the collections ot what the Commons
ulledged for their right of judicature.

The Lords having considered the precedents
n Hedged by the Commons at the last Confer-
ence, do hnd that they tended to pro\c, 1.
" That the house of commons is a Court of He-
cord. 2. That they have administered an
Oath in matters concerning themselves. 3.
That they have inflicted punishments on de-
linquents, where the cause has concerned a
messenger of their house, or the privilege
thereof." — Their lordships determined, " That
the question, at this time, is not Whether that
hou<*e be a Court of Record ; nor whether the
Oath by them alledued to be ministered, in a
matter concerning that, house, was given by the
house, or by a master in Chancery, then one
of their members ; nor whether they have a
right of judicature in matters concerning them-
selves? But the question is, VYhetherthat house
may proceed to Sentence any man, who is not
a member of their house, and for a matter
which does not concern them, for which the
Commons allcdgcd no proofs, nor produced any ■
precedents ? Therefore their lordships agreed
to pray a Re- conference about the same ; and,
at the said Conference, t > stick to this only,
" 'IT.it the house of commons have no power
of Judicature, no coercion against any, but in
matters concerning their own house.*'

May 8. p. m. The house being to meet the
Commons at the Re-conference, this afternoon,
concerning the Judicature in which the Lords
conceived the others had trenched into their
, liberties and privileges ; and wherein their lord-
ships were not satisfied with the precedents
alledged by the Commons, at the former Con-
ference in their defence thereof: yet being de-
sirous to continue that good respect and cor-
respondency which hath been all this parliament
between both the houses, they thought proper
to order, That the archbishop of Canterbury
should begin the introduction to the Confer*
ence, and propound any thing that might tend
to a gentle ending of the same. And, tliatif
the Commons would agree to a sub -committee,
to end this busiuos. then the Archbishop, the
l^ord Admiral, the Lord Chamberlain, the earls
of Anmdel nod Southampton were appointed
for that purpose ; and it was further agreed,
That this sub-committee should be limited no!
to yield to any thing, in point of Judicature,
which th<\y of the commons have done, lest it
may in lime become a precedent to wrong the
privihgi s of the lords. The Commons agreed
to a sub -committee, to end this difference.

May 12. The archbishop of Canterbury re*
ported the Conference held yesterday between
the sub-committees of both houses, to this ef-
fect ; u 1. The Commons shewed their constant
) resolution to maintain the love and good cor*
respondency between the two houses. ft. Their
resolution not to invade the privileges of this
house, that have dealt so nobly with tbem*
( Lastly, that out of their zeal they sentenced
| Floyde ; but they leave him to the Lords wiU
I

1157] STATE TRIALS, 10 James I. \62\.— for scandalizing tlxPrincc-s Palatine. [115S

an intimation of their hope that this house will
censure him also. Then they proposed a Pro-
testation to be entered with the Lords for a
mean to accommodate the business between
tbem.— A Protestation was immediately drawn
up. and agreed to, in these words ; " That the
proceedings lately pas«ed in the House of Com-
mons, against Edward Floyde, be not at any
time hereafter drawn or u-ed as a precedent to
the enlarging or diminishing of the lawful rights
•or privileges of either house : hut that the rights
and privileges of both houses shall remain in
•the self-sanle state and plight as before/' This
Protestation is also entered in the Journals of
the Commons, without any addition or altera-
tion by them.

Proceedings before the Lords.

May 25. The archbishop of Can tertiary,
first of the committee appointed by the House
to take Examinations in the Cause of Edward
Floyde, reported, That they had taken several,
and were satisfied of the Proof of the Crimes
objected against him; and moved the house
that Mr. Attorney General might read the said
Eiamioationg. Accordingly, the Deposition
of sijf persons were read, and then it was or-
dered, That Floyde should be brought to the
bor the next morning, in order to proceed to
Judgment against him.

The Attorney General's Charge.

May 26. Edward Floyde being brought to
the bar, Mr. Attorney charged turn with noto-
rious Misdemeanors and high Presumption :
tiz. 1. For rejoicing at the losses happened to
the king's daughter and her children, g. For
discouraging of others, which bear good affec-
tion unto them. 3. For speaking barely of
them. 4. For taking upon him to judge of the
rights of kingdoms.

The first, Mr. Attorney shewed, that, iu
Dec. Inst, Floyde, being prisoner in the Fleet,
having advertisement that Prague was taken,
did, upon all occasion, shew himself joyful and
find of that calamity and afflictions which had
happened unto the prince and princess Pala-
tine, the king's only daughter, and their chil-
dren.

And for the second, Mr. Attorney shewed,
Chat this Floyde, relating unto Henry Penning-
ton this loss of Prague, and the captivitv, as he
believed, of the king's son in law, aiuf of the
king's daughter and her children ; and the said
Pennington wishing that himself, and all the
convenient men of this kingdom, were pressed
forth, not to return with their lives, till they
had redeemed her from captivitv ; he the said
Floyde replied : ' I am sorry, thou art such a
' fool/ xAnd the said Pennington reproving
him lor saying so, he the said Floyde replied,
* That, if he had been out of his chamber, he
1 would have struck him/

And for the third, Mr. Attorney shewed,
That the said Floyde taking occasion to speak
of these matters, did term the prince and prin-
~— Palatine, the king's daughter, by the igno-

minious and despiteful terms of ' Goodman
' Palsgrave/ and ' Goodwill* Palsgrave ;' and
termed hmi ' th'st poor 1 id / and scMiingly,
and with great' jollity, related a stage. play of
the princess running awuy with two children,
the one under one arm, and the other under
the other arm, and the th'nd in her Lolly, and
the Palsgrave following -a nil the cradle.

And fir the fourth, Mr. Attorney shewed,
That one Abdias Cole ijomg to preach on a
•Sunday morning iu the lieet, the said Flovdo
called to him, and told hi;n that Prague is

* blcinan has as good right to be king of Wales,

* as he, meaning the Palsgrave, to be king of
' Bohemia/ •

Here Mr. Attorney opened that point of the
ancient Oath of Allegiance :* Of which oath
and the danger to the oli« nder iu such case, the
s.iid Floyde (being a lawyer) could not be igno-
rant and that therefore his offence was greater.
And Mr. Attorney did further she v, That this
Floyde; being a man of good estate, was a jus-
tice of peace in the county of£alop, and for
that he was put out of the commission (which
was affirmed to be true, by Mr. Baron Bromley,
being this day present). And also that thw
Floyde, having heretofore studied the common
laws of this laud in the Inner Temple, w I -ere
he was called to the bar, was put out ofth.it
society by the benchers of that house.

FJoyde's Answer.

This being said, the Lord Chief J n.<: ire de-
manded of Floyde what Answer he could make
unto these Misdemeanor*, when wit. he was
charged by Mr. Attorney. Hoyde there u ;. o n he-
gan with a long discourse, to traduce the persons
of such as had deposed against him ; but, being
demanded to make a direct Answer to the
Charge ; He said, ' I cannot remember that
these Words were ever spoken by me/

Whereupon the Clerk read tnc Depositions
and Kxaminatious of I.ct'icc Harris, limrv
Pennington, John Broujjiloii, George II :rci-
man, Kdwaid Aldred, AUlids Cole. V. I.ir'i
being read, the L. C. Justice demand* d if
Floydei whether he tpake these Words, •* Good-
man Palssrave/ and * Good wife Pal?gra\i/
lie the said Floyde said, * I spake not those
Words in such ?ort as they are laid down in the
said Examinations/ — The L. C. Justice de-
manding of him again, whether he spake those
Words, or words to that effect ; He answered,
' It is but a folly for ine to deny them, because
so many have proved them/ And afterwards
he said, * 1 will nut deny them, liecause so
many have proved them/ And he being de-
manded, whether he spake the other words, or
used the insolent behaviour towards the prince
and princess Palatine ; answered, * I remember
it not/

The Prisoner being withdrawn ; although the

Sic in Orig.

1159] STATE TRIALS 19 James I. \6<2 1. -~l>roceedingi against Abp. Abbot, [11C0

lords were fully satisfied by these Examinations,
aud Floyde's Answers, yet, for order sake, it mas
put to the question, Whether Edward Floyde
be so guilty of the offences wherewith he is
charged, as that he deserves to be censured ;
and agreed unto by all, nan. din.

The Censure ag.iinst E. Floyde being pro-
pounded in (his manner: viz. '* 1. Not to
bear Arms as a gentleman, &c. 2. To ride
with his face to the horses tail, to stand on the
pillory, and his ears nailed, &c. 3. To be
whipped at a cart's tail. 4. To be fined at
5000/. 5. To be perpetually imprisoned in
Newgate." It was put to the question, first,
Whether the said Floyde shall be whipped or no,
which some lords doubted to yield unto, be-
cause he was a gentleman ; yet it was agreed,
per plureSy that he shall he whipped. — Then it
was put to the question, Whether Floyde's ears
shall be nailed to the pillory or no; and agreed,
per p lures, not to be nailed.

Sentence of the Lords.

Then the form of the Sentence being read,
it was put to the question, Whether those Pu-
nishments therein mentioned shall be inllicted
on the said Floyde or no ; and agreed unto ge-
nerally. And he being brought to the bar
•again, Mr. Attorney General came to the
clerk's tuble, and making a short repetition of
Floyde's offe nee, grayed the lords to proceed
to Judgment against him.

Whereupon the Lord Chief Justice pro-
nounced the Sentence iu these words : viz.

" The lords spiritual and temporal, consi-
dering of the great Offence of the said Edward
Floyde, do award and adjudge : 1. That the
said Edw. Floyd shall be incapable to bear
arms us a gentleman ; and that he shall be
ever held an infamous ptrson, and his testi-
mony not to he taken iu any court or caufce.
2. That on Monday next, in the morning, he

shall be brought to Westminster-hall, and (here
to be set on horse back, with his face to the
horse tail, holding the tail in his hand, with
papers on his head and breast, declaring his
offence, and so to ride to the pillory in Cheap-
side, and there to stand two hours on the pil-
lory, and there to be branded with a letter K
in his forehead. 3. To be whipped at a cart's
tail, on the first day of the next term, from the
Fleer, to West minster- hall, with papers on bis
head, declaring his offence, and then to stand
on the pillory there two hours* 4. That be sbaU
be fined to the king in 5000/. 5. That he shall
be imprisoned in Newgate, during bis life."

Mem. The clerk sigued a warrant to the
Serjeant at Arms, and the Warden of the Fleet,
to see the Sentence executed ; with a clause
therein, for the sheriffs of London and Middle-
sex, and all other his majesty's officers to whom
it might appertain, to be aiding, and assisting
unitf them. And Mem. That these Words were
written iu the Paper to- be on Floyde's bead,
declaring his offence : viz. " For ignominious
t( and despiteful Words and malicious and
" scornful behaviour towards the Prince and
" princess Palatine, the king's only daughter,
'* and their children."

Cambden tells us* That every part of this
Sentence was executed on Floyde; but the
Lords Journals assure us, That some days after
on a motion from the Prince it was ordered,
That the punishment of whipping, with all that
bciougs to it, to be inflicted upon Edward
Floyde, be suspended and tor born, until the
pleasure of the house be further known ; the
rest of the punishment to be executed accord-
ing to the former order. It was also ordered,
That, hereafter, when any Censure lieyond im-
prisonment be agreed on, that judgment there-
upon be not then given, but on another day, or
sitting, that time may be taken to consider
thereof.

121. Proceedings against George Abbot/ Archbishop of Canter-
bury, for the killing of Edward Hawkins, one of the Lord
Zouch's Keepers :> 19-James I. a.d. 1621. [2 Colliers EccL
Hist 720. Fullers Ch. Hist. Book 10, Cent. HeylinsLifeof
Laud, 80. Hacket's Life of Williams, 66. Sir Henry Spcl-
man's Remains.]

THE next summer, (1621,) archbishop Abbot
being invited by lord Zouch to kill a buck at
•his Park at Bramzil, iu Hampshire, met with a
very calamitous accident, for shooting at a

• James Howell in a letter to sir Thomas
.Savage, Nov. 9, 1622, writes, " Since that sad
•disaster which befel Archbishop Abbot, to kill
the man by the glancing of an arrow as he was
-•hooting at a deer (which kind of death befel
joue of our king's once in New Forett) there
Jiath been a commission awarded to debate

deer with a cross bow, the keeper, coming op
unwarily too forward, was struck with the arrow
under the left arm, and' died about an boar
alter. f The king iuformed of this misfortune,
■ ■ !■ ~

whether upon this fact, whereby he h.ith shed
human blood, he be not to be deprived of ab
archbishoprirk, and prouounced irregular: taut
were against him ; but bishop Andrews, and sir
Henry Martin, stood stiffly for him, that in re-
gard it was no spontaneous act, but a mere
contingency, and that there it 90 degree ef mm

1161]

STATE TRIALS, 19 James I. \Q2\.— for Homicide.

[11GS

and apprehensive scandal might be given if the
matter was passed over, resolved to have the
case thoroughly examined.! To this purpose
the following Letter was directed to the Lord
Keeper Williams, the bishops of London, Win-
chester, Kocliester, and the elects of St. Da-
vids and Exeter, sir Henry Hobart, knight,
Chief JuMxe of the Common Pleas, Mr. Jus-
tice Doddridge, of B. K. sir Henry Martin
Dean of the Arches, and Mr. Dr. Steward, or
any six of them, whereof the Lord Keeper (then
bishop of Lincoln elect) the bishop of London,
Winton, and St David's elect, to befour.||

* It is not unknown unto you what hap-
' pened this last summer unfortunately to our

* right trusty, and our right well beloved coun-
' setlor the Lord Archbishop of Canterbury,

* who shooting at a deer with a cross bow in
4 Bramzil Para, did with that shoot casually
' give the keeper a wound whereof he died,

* which accident, though it might have hap-

* pened to any other man, yet because his

* eminent rank and function in the Church

* bath (as we are informed) ministered occasion

but is subject to misfortunes and casualties,
they declared positively that be was not to fall
from his dignity or function, but should still re-
main a regular, and in statu quo priut. Dur-
ing this debate, he petitioned the king that he
might be permitted to retire to his alms-house
at Guildford where he was born, to pass the
remainder of his life ; but he is now come to
he Hgain rectus in curia, absolutely quitted, and
restored to all thing*: but for the wife of him
who was killed, it was no misfortune to her,
for he hath endowed herself, and her children
with such an estate, that they say her husband
could never have got."

t No two of the authors cited relate the ac-
cident in the same way.

X fleylin and bishop Hacket both give a
letter (which is also in the Cabala, p. 55.) ex-
pressing his opinion, that Abbot by this mis-
chance, had become irregular nod incurred for-
feiture, and his desired hope that the king
would shew him mercy.

|| It is elsewhere stated " quorum unum Me-
neventum, &c." It happened very unluckily,
M it is expressed in an article in the British
Museum, that there were four bishops elected
but not cousecrated, viz. Dr. John Williams,
Lord Keeper of the Great Seal, to the see or
Lincoln, Dr. John Duvenant to that of Salis-
bury, Dr. Vuk-ntiue Gary to that of Exeter,
and his old ai'tu^oimt Dr. Wm. Laud, whose
preferment on this occasion he had warmly op-
posed, to tliat of 6t. David's ; and all except
Dr. Da vena ut scrupled the archbishop's capa-
city to lay hands on them till he was cleared
from all imputation as to this fact. It seems
Dot unlikely i hat thin scrupulosity arose from
a cautious apprehension, that the validity
of their consecrations might afterwards he
questioned if performed by a metropolitan who
was irregular, or to whom any imputation or
fUspicioB of irregularity might be reproached.

of some doubts, as making the case different

in his person in respect of the scandal, (as is

supposed) we therefore, being desirous (as it

is tit we sliould) to be satisfied therein, and

reposing especial trust in your learning and

judgment, have made choice of you to inform

us concerning the nature of the case : and do

therefore require you to take it presently into

your consideration, and the scandal that may

have risen thereupon, and to certify us, what

in your judgments the same may amount unto,

either to an irregularity or otherwise, and

lastly what means may he found to redress

the same (if need be) of all which points, we

shall expect to hear your reports with what

diligence, and expedition, you passibly may.

Dated at Theobalds, 3 Oct. 1691.'

To this Letter the bishops and others to

whom the consideration of the Archbishop's

Case was referred, returned their Answer in

these words :

' May it please your majesty ; Whereas we

* received a command from your majesty under
' your royal signet, to deliver our opinions unto

* your majesty, whether an irregularity or scan-
' dal might arise by this unfortunate act, which

* God permitted to come to pass by the hand
' of the most reverend Father in God, the Lord

* Archbishop of Canterbury, shooting in a

* cross-bow at a deer in Bramzil Park : as also
' of the cure and remedy of the same irregula-
' rity. For the first; vVheiber any irregula-
' rity be contracted' by this act, in the person
' of my Lord Archbishop or not? No greater
1 part of our number could assent or agiee, be-

< cause the Canons and Decrees themselves

< are so general, and so ready to entertain dis-
' tinctions and limitations, the doctors and
1 glosses so differing, inferences and disputes so
' peculiar to every man's conceit and apprehen**

< sion, authorities of canonists and casuists,

< so opposite in this very case in hand, that wo
' could not return unto jour majesty any una-

< nimnus resolution or opinion in the same.
' For the second ; Whether any scandal may
' arise out of this act ? We are of opinion a

< scandal may be taken by the weuk at home,

* and the malicious abroad, though most of us
' believe there was no scandal given by the
' said right reverend fit her. For the third ;
4 We are all agreed not only that a restitution

* or dispensation may be granted by your ma-
'jesty, either immediately under the great

* seal, or (which most of us in all humility re*

* present unto your majesty) by the hands of

* some clergyman delegated by your majesty for
' that purpose, or what other way your majesty

' shall be pleased to extend that favour, but '
' withal we are of opinion that it is most fitting
' for the said reverend father, both in regard of
' his person, and the honour of the church, to
' sue unto your most gr.icious majesty for the
' said Dispensation m mojorum cautetam si qua
1 forte sit irreguhiri'as. All which, craving

* pardon for our weakness, we do in all hum-
' oleness submit to the decision of your majesty's
' most profound and incomparable wisdomr

1168] STATE TRIALS, 19 James I. \62l.— Proceeding* agaiuX Ahp. Abbot, [1164

Jo. Line, elect, C. S. ; Geo. London. ; La.
' Winton. ; • Jo. Roflens. ; Guil. Menevens.
' elect; Valen. Exon. elect; Henr. Hobart, Jo.
4 Doddridge, H. Marten, Ny. Stewarde."

The Archbishop governed by this advice, and
applying to the king, his majesty directed nCoiu-
iuismoq to the bishop of Lincoln, lord keeper,
to the bishops of London, Winchester, Nor-
wich, Coventry, and Litchfield, to the bishop
of Bath and Wells, Ely and Chichester, im-
powering them or any six of them, of which the
bishops of Lincoln, London, Winchester and
Norwich were to he of the quorum, to dispense
.with any irregularity, in case the late nccident
had drawn any such blemish or imputation upon
the Archbishop. By this Instrument the canons,
in case there was need, were over-ruled and dis-
pensed with, the force of Abbot's character is
revived, and he is fully restored to the exercises
of his function. This is* a wonderful relief from
the crown; and supposes a patriarchal at least,
if not a p;ipal authority vested in the king. The
Record lays the death of the Keeper upon his
own rashness and want of care, makes the ho-
micide perfectly casual, 'that the Archbishop
was in no decree to blame for the misfortune :
and thut this requesting his majesty for a dis-
pensation was only ad can te lam extuperabundan-
ti. And that the reader may better remark how
for the, dispensation reaches, he may plense to
observe, that irregularity lays the sacerdotal
powers as it were asleep, forfeits all prefer-
ments, and makes the person incapable of any
for die future.

To return : Besides the favourable report of
the Archbishop's case in the commission, there
was a learned Apologyf drawn up for him. The
author proves hunting for health allowed clergy-
men. This point he makes good from several
authorities, and disables some objections from
the canon law. From hence he advances to
prove that casual homicide sticks no blemish,

* Heylin, in his life of Laud, ascribes the in-
clination of bishop Andrews (between whom
and Abbot there had been some disgust) to-
wards the protection of Abbot, to two motives,
1st, an unwillingness too rigidly to construe the
canons, lest afterwards a rigid construction of
those canons might hurt himself or his brethren.
8d, An apprehension that if Abbot should be
deprived Williams would succeed him, who
Andrews thought would make a dangerous
bead of the church. In other respects all the
historians agree that Andrews was no friend to
Abbot. Of sir Henry Martin, Heylin says that
be had received liis offices and prefer men is
from Abbot, aud so was bound by -gratitude to
maintain his cause. He farther observes that
it required nut the gift of prophecy to foretel
that Williams would be a dangerous head to the
church. He was in 1641 the contriver of the
injudicious and mischievous protestation of the
)>ishops, and of their secession from parlia-
ment.

f This Apology and the Answer to it are in-
serted at the tad of this Case,

nor incurs any irregularity, where the person
committing it was engaged in no unlawful busi-
ness or recreation, and took all necessary pre-
caution to guard agnin>t accidents. That all
this mwlit be fairlv pleaded in behnlf of the
Archbish(.;>, is not only taken for granted in the
Dispensation, but farther made out by this Apo-
logist.* For the. purpose, he takes notice thut
the canon de clerico rcnutcre, cited in the Dl«-
cretum against the Archbishop, has a mark of
censure and umiuthentickness put upon it by
G rati an : he brings :he gloss for evidence, that
whereas this canon is cited out of tnc 4th Coun-
cil of Orleans, there is no such thing -there to
be found. Thirdly, the pretended canon ii le-
velled only against clamota venulio, but quieta
or n-odexta is allowed by the canonists. No*
this latter was the recreation in which the mis-
fortune happened at Itramzil, as may l>e seen in
the dispensing instrument. The Apologist rein-
forces his argument bv observing that by 35 H.
8. rap. 1(>, no cmoti is in force in Lngland,
which cl.tshes with the laws and sta talcs of thb
realm or the prerogative royal ; and that the
canon urged n»?.in*t Ahlr»t i-»of this nature. For
by Charta de l'ore*tr», archbishops and bishops
have express liberty to hunt ; aud that from IS
it. 2, cap. 13, it follows by necessary implica-
tion, that a clergyman who has 10/. per annum
or upwards, may keep greyhounds or hounds to
hunt. And to mention nothing farther from
him, lie argues, that Lindwood who was very
well skilled in the English ecclesiastical consti-
tutions, condemns only the excesses of hunting
in clergymen, and the undue application of that
liberty, but dors no where pronounce it as ab-
solutely unlawful tor their profession : After this
he gives several instances of bishops who bare
used this diversion without censure or imputa-
tion.

And, laslv, the famous sir Edward Coke,
upon the qiu stton being put to him by sir Henry
Saville, VVhether a bishop may hunt in a pars
by the laws of the realm ? answcri d nfiirmatirelr
in these words : ' He may hunt by the raws of
* the realm, bv this very token, that there i- an
' old law, that a bishop when dying is to leave
' his pack of dogs (rilled muta canum, i. e. nimt
' dc chien««t)to the king's free use and disposal/

To this Apology there is an Answer returned,
as it is said by sir Henry Spelman, but this dis-
course looks strained, and discovers something
of a prosecuting humour, and I cannot help say-
ing it falls short of that strength and candow
customary to this learned gentleman, and there-
fore, being a posthumous work, I would willinfly
believe some part of it at least was ttte work of
another baud.

But, notwithstanding; the Archbishop's recre-
ation, and his precaution against mis fortune, wis
defensible, yet his being excused the forms of

* Lord Coke 3 Inst. cap. 73. p. 309. All
canons against the laws or customs of tbe reato
are void aud of none effect.

f See Ace. 3d. Inst. 308, 339; and theft?
ancient authorities there cited*

i

11G5]

STATE TRIALS, 19 James L 1621— /or Homicide.

[1105

law, and not brought bo a trial for this casual
homicide, was something remarkable. His be-
kig thu9 screened from customary prosecution,
is, I suppose, owing to die protection of ihe
Dispensation above mentioned.

An APOLOGY for Archbishop Abbott;
touching the Death of Peter Hawkins the
Keeper, wounded in the Park at Bramsil,
July 2t, 1691.

1. It is certain that inforo conscicnti*, this
case may not only deservedly produce a tear
and trembling in him who was the accidental
cause thereof ; but may justly ma!;c the tulle st
Cedar in Lebanon to shake, in recounting with
his inward man, what sin it is th:tt h;ith pro-
voked God to permit such a rare and unusual
action to fall out by his hand : which maketh
him, for the time, to be fabu'a zuUi, and giv-
etii opportunity to the enemies of religion of
all kinds, to rejoice, to speak their pleasure, to
fill their books and libel*, within the realm,
and perhaps, beyond the fens. And that, con-
cerning Lis calling as ueil as his person, not
only for ttio present, but also in future ages;
beside grief to his friends, and some scandal to
the weak, v. ho do not rightly apprehend things,
but raise questions which few men can resolve.
To all which mny be added, the interpretation
of" it by his majesty, graciously or otherwise ;
and the forfeiture, that in rigorous construc-
tion of law may be put upon him, although held
for no great delinquent; besides the providing
for a widow and four fatherless children. All
which may pierce a heait that is not senseless;
mad day und night \ield hi in matter enough of
troubled meditations.

2. And yet, lest he that intended no ill
(much less to that person, a poor man and
a stranger to him) should be swallowed up with
sorrow; he is not devoid of so mo comfort, as
that consensus fecit peccatuw, and voluntas
Jacit reutuiH ; and where those concur nor,
misdemeanours are properly ivtira nullum
decalo%i precept urn. And tiu;t when God,
speaking t »f such casual death (Kv;d. 31. 13.)
usetii these words, ' If a man lie not in wait,
* but God deliver him (the slain iu:a;; into his
4 hands;' divines collect thereupon that it i*
not huntanum hut a Uto, which no man\ provi-
dence can absolutely prevent. For whs-t God
will have done, shall be ; and no creature n>ay
nSre to set him to school in \vh:it manner, fir
by what person he will have it performed. And
Deuternnoru. xi\. G, 10. God putting the case
of the man slain by the iron of his neighbour's
ax slipping off, appointeih cities of n-fuee, lest
he should be shin also; who (as he saith) was
not worthy of death : and again, that innoxin*
mnguiiy innocent blood be not. shed in the
land. Where we may collect, that such cases
are foreseen and on I c red hy tiod himself; and
Chat no calling, no not that of the priest, is free
from that which God will have accomplished ;
since lie mutt communtm hominvm subiretor-
ttm. Homo turn, humani nihil a me aiienum
jul§. And, Quod cuioue contingere potest,

cuiris potest ; although of all others, the priest
should be most wary, what he attempt and

liO'.v.

3. There is no text in the Oiu Testament
which directly distinguished the pilot from
other men, in case of t lood ; hut there are ex-
amples (which may not be applved to evii, for
that were to prrvert them) res-dviug one mtu-
ple which is made. As Mo&es was ins priest,
vet he gave down the law ; and he consecrated
Aaron the high-pries:, notwithstanding the tmio
was that he had killed the ./Egyptian. The*
Levitts ilcw 3000 of the Israelites, ufttr ne
idolatry with the golden calf. Phme.w, who

* as afterwards the hi^h-uricst,' slew the i»rael-
itish man with the Midianit&h wwin.tn, and
was blessed by God for it. Samuel hewed
Agflg to pieces. JehoUda tlie priest com-
manded Atlialiah the usurper to he slain. The*
Muchahces fought for their country ; and so tiiok
away the lives of many a man. Paul wa* con-
senting to the death of Stephen. Peter, al-
though rebuked for it, cut off the ear of Mai*
thus. Josephus the Jew, of the seed of tbw
priests, was captain over Judah, and fought
divers times. Out of all which, I do only nuke
this collection ; that the priest's restraint Iroin
blood, is not ex jure divmo, but ex jure positive ;
Ifontificio scil. vet Canonico, or Ecctesiastico9
as we call it; out of caution, for purity and
decency, and good congruity for so holy a call-
ings which cometh so near God, and attondeth
at his altar.

4. See then in the ecclesiastical law, what
gr.nre is afforded t<> him, who against his will,
hath casually been the death of another. There
is in the decretals, a title I )e iioraicidio Volun-
tario vel Ca^uili : concerning the latter of
which, there be muny rescripts ; which demon -
strateth, that in unman life such things do fre-
quently fall out. In these, there arc live chap-
ter, Cap. Lator : (Jap. Dihrciis iiliis: Cap.
Kx Utteris : Cap. Kx I /uteris tus : Cap. Jo*
ha ones : where the Kubrick is, * Homicidium
' ensuale non imputatur ei qui non fuit in culpa :'
and * Homicidiimi casuale non imputatur ei
' nui deuit operam rei licitar, nee fuit m culpa.'
And there the decision is evermore, that there
is n » irregularity ' in promovendo,' or ' iu pro-

* r.i )to ad sacrtjs ordities.'

'1 his is the more to be noted, because it is
i):.t tike interpreters, bat the body of the law.
And the gloss thereupon bath; * Nota, qood
' homicidiinn ca*u commissum, culpa non pra>
1 cc'irnte non est imputandnm.' And, 4 >ibi
' iinputari non debet, quia fortuitos casus, qui
' prnuideri nou pn?suut, non pnevidit.' And,
' J )c casu fortuito nullus tenetur, cum prarvidai
1 non possit.' And upon this the stream of tba
Canonists do run, as hy a multitude of hooka
may be shewed: with whom our Bract on, a
great civilian and common lawyer too ; * Hotiuv
4 dilium casuale non imputatur/

5. The two heads whereto the law looketh,
freeing a man from bUmc, and expressly front
irregularity, are; that the person by whom the
action is performed, do not dare operam ret

* constituitur, non nisi ex lethal i peccato con-
' trahitur: nisi ex boiuicidio fiat quis irregularis,
' eo quod det operam rei vetit«9 et interdicts ;
4 nam tunc quamvis homicidium casu sequatur,
4 ob culpam nostram levem vel levissimam,
4 multoram est opinio irregularitatem contrahi.'
And Ivo in his canons, some hundreds of years
before him ; * Si quo fratres in sylva arbores
4 succiderint, et appropinquante casura unius

* arboris, frater fratri dixerit Cave, et ille
4 fugiens, in pressuram arboris inciderit, ac
4 moriuus fuent, vivcns frater inuocens de san-
' guine germani * dijudicatur.' Now, the case
at Bramsil, is within the compass of these two
Conditions. For the party agent, was about
no unlawful work : for what lie did, was in the
day, in the presence of forty or fiftv persons,
the lord Zouch, who was owner of the park,
not only standing by, but inviting to hunt and
shoot ; and all persons in the field were called
upon to stand far off, partly for avoiding harm,
and partly lest they should disturb the game ;
and ail in the field performed what was desired.
And this course did the lord archbishop use to
take, when or wheresoever he did shoot ; as all
persons at any time present can witness : never
any man being more solicitous than he ever-
more was. And the morning when the deed
was done, the keeper was twice warned to stay
behind, and not to run forward ; but he care-
lessly did otherwise, when he that shot could
take no notice of his galloping in before the
bow ; as may be seen by the verdict of the
coroner's inquest.

0*. This case at Bramsil is so favourable ;
that the strictest writers of these times, directly
conclude, that if a clergy-man committing
casuaie homicidium be about a forbidden and
interdicted act, yet lie is not irregular, if the
interdicted act be not therefore forbidden, be-
cause it 'may draw on homicide. And there-
upon, inasmuch as hunting is forbidden in a
clergy-man, not in respect of danger of life,
but for decency, that he should not spend his
time in exercises which may hinder him from
the study fit for his calling, or for other such
reasons ; irregularity folio* eth not thereupon.
And to this purpose, writeth at large Soto, Co-
▼arruvias, and Suar?7, who are great canonists
and schoolmen. And if this be true, (as out of
great reason it may be so held) how much fur-
ther is the present case in question from irregu-
laritie.

7. But some go directly to the point, and
say, that the lord archbishop did navare operam
rei illicit*, because he mas on hunting; for
that was interdicted to a bishop by the canon
De Clerico Vena tore ; and so by a consequent
he must needs be irregular. To wtuch objec-
tion, see how many clear and true answers
there be. As first that the canon being taken
out o»" the decrees, is by Gratian himself
branded to be palta, no better than chaff.
ftQoadly, it is cited out of the fourth council

1167] STATE/TRIALS, IQJaMesI. 1621 — Proceeding* agavtsl Abp. Abbot, [1166

illicit*, and that he use diligence of his part of Orleans; and there is no such thing to be
that no hurt be committed. Azorius the found, as the gloss well observeih. Thirdly,
Jesuite saith, ' Irrcgularitas, cum oh delictum it forbiddeth hunting cum catubus aut accipi-

tribus ; and none of these were at BramsiJ.
And if you will enforce it by comparison or
proportion, the rule of the law is, ' Kavores
* sunt atupliandi, odia resrringenda :* where
mark, when hunting with dogs or hawks is for-
bidden, it is not for fear of slaughter, for there
is no such danger in either of them. Fourthly,
the canon forbiddeth hunting volnptatis causa,
but not rccreationis or valetudinU gratia,
which the hooks say is permitted etiam cpuit-
copo. Fifthly, the canon bath, ' Si saepius de-
tentus merit, if be make a life or occupation of
it ; which the world knoweth, is not the arch-
bishop's case, but a little one time in the year,
directed so by his physician, to avoid two dis-
eases, whereunto he is subject, the' stone and
the gout. Sixthly, it is clamota venatio against
which the canon speaketh, not quiet a or wo-
dettu, which the canonists allow ; and this
whereof the question ariseth, was most silent
and quiet; saving that this accident, by tie
keeper's uuad vised running in, hath afterwards
made a noise over all the country.

8. These exceptions, as they naturally and
without any enforcing, give answer to this ob-
jection of the canon ; so there is anothi r thing
that may stop the mouth of all gainsay ers; u
any reason will content them. And that is,
that by the stat. of Hen. 8, 35. ca. 16, no canon
is iu force in England, which was not in use
before that time, or is not contrary or deroga-
tory to the laws or statutes of this realm, nor
to the prerogatives of the royal crown : of
which nature this is. For in Charta de Fo-
rest a, archbishops and bishops by name hare
liberty to hunt : and 13 Ricn. 2, cap. 13, a
clergy-man who hath 10/. by the year, miv
keep grey-hounds to hunt. And Lin wood, who
lived soon after that time, and understood tlte
ecclesiastical constitutions and the laws of Eng-
land very well, iu treating of hunting, speaktth
against clergy-men using that exercise unlaw-
fully ; as iu places restrained or forbidden;
but hath not one word against hunting simply.
And the arch- bishop of Canterbury had for-
merly more than twenty parks and chases of
his own, to use at his pleasure ; and now by
charter h:tth freewarren in all his laud>. And
by ancient record, the bishop of Rocbtster, at
Ins death, was to render to the arch-bishop of
Canterbury his kennel of hounds as a mortuary,
whereof (as I am credibly informed) the to*
taketh notice for the king ude vaatnte, under
the naiiieofmula canum und mu/clura. To
this may be added, the perpetuated u»e of
hunting by bishops in their parks, coutiuutd to
this day without scruple or question. As toil
most re* erend man the lord arch-bishop Wbit-
gyfte used in liurtlebury-park while he lived it
Worcester; in Ford -park in Kent; in the
park of the lord Cobham, near Canterbury ;
where by the favour of that lord, he killed
twenty bucks in one journey ; using hounds,
grey-fcoundt, or his bqw, at his pleasure, si*

1169]

STATE TRIALS, 19 James L lfJ'21.— /or Homicide.

[1170

though be never shot well. And the same is
credibly repot teri of the lord arch-bishop
Sondes. And it is most true, that the deans
and chapter of Winchester use it us they pleuse
iii their franchise. To *ay nothing of Dr. lten-
sial, whose hounds were long famous through-
out all En gland ; and vet he was by profession
a canonist ; and kuew well what induced irre-
gularity.

I will add two things more, which directly
appertain to the arch- bishop of Canterbury.
Hie one is the fatuous record, that at the coro-
nation of queen Eleanor, wife to Hen. 3. the
earl of Arundel (who was by his place cup-
bearer for that day) was enforced to serve by a
deputy, because he was excommunicated by
the archbishop, for taking up his hounds com-
ing into the earl's grounds to hunt ; where the
archbishop pleaded aud alledged that it was
lawful for him to hunt within any forest of
England, whensoever he would. '1 he other, is
that which is written of archbishop Crauincr, in
his lifa ; where I will cite the very words :

* Peruiitcrat ei pater aucupium, venationem,

* equitationetn, &c. Quibus quidem, cum jam

* archiepiscopus relaxure animum et abducere
' se a rebus gruviuribus vellet, ita utebatur, ut

* in fainulutu suo non fuerit quisquam qui in
' generosum cquuin salire ac tractare elegan-

* tius, aut aves ferasque aucupio aut venatione
4 insequi coinmodius intelligent usque potuisset:

* atepe ctiam, etsi oculis infiruiis essct, arcum
4 tendons, sagitta percussit feram.' Out of all
which, and many more records and cases that
are to be shewed, the conclusion is clear, that
howsoever the canon may touch bishops and
clergymen beyond the seas, it lueddleth not
with the bishops of England, who by favour
of princes and the state have baronies annext
to their sees. So that it doth arise out of true
collection from these heads, that there is no
danger of irregularity in the lord urch hi shop's
case, either toward himself or other men. His
majesty's princely grace giveth an end to all ;
and this he mjist humbly craveth. For other
things, God being appeased (as he hopeih that
he is; he dreadeth not the tongue or pen of any
enemy : among whom, the popes and cardinals
have wilfully committed many poisonings, mur-
tbers, and outragious acts ; iind yet they must
believe that they are the head and chiefest
members of the church.

An ANSWER to the foregoing Apology for
Archbishop Abbot; By Sir Henry Spel-
mnn, kt.

Touch in o the first, second, and third sec-
tions : it may be that the priests in the old law,
whose ministry wus altogether in blood, were
not prohibited but that upon just occasion they
might shed even the blood of man as well as of
beasts ; and put on an armour as well as un
ephod. For the tabernacle w;ns covered wiih
ted skins, to signify ' crucntum secultmi, ciu-

* entiun minister ium :' and Moses, whose hands
were dipt in blood, was not forbidrfeu to be the
chief founder thereof. But when the temple

VOL. II.

came to be built, which was the image of the
church of Christ, then the hands of David,
though they had fought the battles of God, yet
because they were seasoned with blood, they
might not lay one stone in that foundation.
Therefore, when the old law and this bloody
priesthood were grown to an end, and going
out of the world, and that the priests of the
gospel were entering in their room into the
wo j Id ; our Saviour commanded Peter to put
up his sword ; for now, ' arm a horrencia Mar-

* tis rejicieuda ;* and ' stola Candida ioduenda

* fuit.' Though then some priests in the old
law and many thousand Levites were martial-
men, yet for many hundred years in the time of
the gospel, I read not of any : insomuch, that
the succeeding ages desiring a martial saint,
were driven to suppose St. George. Whether
therefore these laws of the church, wluch at
this day prohibit clergymen to meddle with
matters of blood, be merely ex jure posit ivo, or
ex divino mixto, I leave it to the determination
of tlie reverend divines.

4. Concerning the cases alledged out of the
decretals : it is true that the rubrick is, ' Ho-

* micidium casuale lion imputatur ei qui non
' fuit in culpa ;' and * Homicidium casuale non
' imputatur ei qui dedit operam rei licit*, nee
' fuit in culpa. And so likewise, is that al-
ledged out of the gloss thereupon, and out of
Bracton. But let us parallel the case in these
with them, which are as followeth.

A and P two clerks sporting together, A by
chance threw P down, who having a knife by
his side, the same happened to wound A that
he died. Pope Alexander 3, commanded the
bishop of Exeter in this case to admit P to holy
orders ; for sporting was lawful. m

A sickly chaplain being gotten upon an un-
ruly horse, and he checking him with bridle
and j-pur to stay him, the horse brake his bridle,
cast his master, and running over a woman
coining by, killed a child in iter arms. This
chaplain was admitted to holy orders, for that
neither, in will nor act he committed homicide,
but also did a lawful act.

One being to unhide a cart of hay, looked
round ubout to see if any were iienr, aud seeing
none, threw a stack oil* the cart, and having
unladed it, a hoy was after found dead with a
little stripe ill his fuce. This priest after cauo-
nicid purgation was admitted to his place. -

A monk helping to Uike a bell down out of S}
steeple, casually thrust down a piece of timber,
which bruised a boy to death. The monk is
judged not uucapnble of further ecclesiastical
preferment, for that the Lusiueas was neces-
sary, and the place not for ordinary report.

A priest tolling a bell to prayers, the same
fell and killed a hoy. The bishop is command-
ed to sutler the priest to execute his function,
for * N ihil potuit i:nputari, si casus oinnes for-
' tnitot uou pre; v Hit.'

Though there he many points in all these
cases, and more in some than others, to excuse
the parties agent ; yet will I meddle only with
those two which are most eminent, and aftered

4f

1171] STATE TRIALS, 19 James I. 1021.— Proceedings against Abp. Abbot, [1179

by the Apologist; that \%, animus or intent io
innocua; and ucttvLgitima. Touching the in-
tent, none is &** impious as to imagine that his
lordship intended to huit any man : yet is there
this difference between his intent ami theirs in
the cases allcdged : th«v intended to hurt nei-
ther man nor hrast, he, though not to hurt a
man, yet to kiH a beast : they, * nihil ssevuni
4 aut nou legitimuin :' he, * legilimumquiddam
4 Bed tauten twvum.' For theie is a kind of
cruelty in the i-laughter of every thing ; and
theicfoie in the old law, Lev. 17, 13, ' lie that
1 taketh any beast or fowl by hunting that may
€ be eaten; shall pour out the blood thereof,
' and cover it with dust ;' that the cruelty ap-
pear not, as 1 take it. And in our law, those
that were cxeicWcd in slaughter of hearts,' were
not received to be triers of the life of a man.
Much is to be said out of histories to this pur-
pose.

Out t) come to the point whereon all depend-
eth, Whether the action his lordship was now
about, be lawful or not ? The places of Azorius
and Ivo are truly c:ted ; and 1 doubt them not
to be law: that is, to this effect, * '1 hat it
' worketh no irregularity* where, in a lawful
V action a clerk kiltcth a man casually, having
' first used nil diligence to pt even tit.' And it
appeareth that hi* lordship did this so cnrclutlv,
that all were continually oiled upon, not only
to stand oft*, but so far off as shew eth his lord-
ship to be very unskilful in the use of his bow ;
and inny theiefore touch him in discretion for
meddling with so dangerous an engine in so
great an assembly ; and consequently produce
irregularity even by the \vord> of Azo<ius al-
ledged to excuse him, though the action be
.lawful : ' iiain tunc quamvis homicidium caau.
' sequatur, ob culpam uo&trum levem vel kvis-
' simain, multoruiu est opinio itngularitutciu
' coutrahi.'

But not to fall from the tree by reaching at
a twig; we will rest upon the chii f station in
the cnsc, the nature of the action ; w hith though
it be forbidden, yet according to Soto, Covar-
ruvias and Sunrez, as it is alledircd, induce: h
not irregularity when homicide follows the: eon,
if it be not therefore forbidden, because it may
draw on homicide : concluding, thst though
bunting be forbidden to a clergyman, yet for
that it is not forbidden in respect of danger ot
life, but for decency, o*c. Irregularity follow-
etb not thereupon. As for Cornriuvi:i.s and
Suarez, I have them not ; but Soto is not bap*
pily alledged. For th JJ.:h he incline to that
opinion, with Cajetan, yet he tnkeih a distinc-
tion that woundi th tin? ca4.e in question ; and
that is, * Yenatione, quae armiset tclis fit, pro-
4 fecto net clericus irrc gularis :' and this fall* th
out to be now the cute. For this hunting was
performed with a cross* bow, a deadly j-.nd a
dangerous weapon, thathaih been the occasion
Of many bloody misfortunes. But in a former
passage, Soto also s;iirh, that Cajetan and Syl-
vester and * Doc to res juris canouici universa-
1 1cm reguhun, astrunnt, quod omnis qui dut
9 Dpcxam rti iiiicitaj, quandocunque ex ilia da-

* done sequatur homicidium, fint irregularis/
And Azpilcueta Navarrus saith, that Cajetan
in the other place, and by consequence botes,
is to be understood *>ith a limitation, as mean-
ing, * Vcnationein passerum et perdicum ad

* aucupi* can turn, Tel accipitris, sine annts in

' provinces nou venationem urboruro, apro-

' rum, et cerrorum, qua* armis exercetur/ En-
chirid. cap. 27. sect. 237. Wherein, the dit*
ti net ion he taketh, making a main difference
between venationem ludicram and venstumem
martiam, concluded) plainly, the case in liand
to have wrought irregularity. And the Apolo-
gist finding no sure ground in this assertion,
buildeth no otheiwise uppn it, than * if it be

* true as out of great reason' he saith ' it may
1 be so held :' and passeth from it to hischiefct
place of refuge, shewing that the canon that
makes hunting to be actio illicita doth no way
touch his lordship.

First, for that upon the matter there as no
such canon : insomuch as Gratian himself, that
collected the canons, brandeth this to be pafra
and no better than chaff. It is true, he brand-
eth it with the term pa lea t and was a worthy
man ; but noted geucrally to have mistaken
many things, and some extremely; But if that
be the meaning of the word, his error seemetb
very perspicuous, o* finding this canon ascribed
to the council of Orleans and not finding it
there, he presently branded \t,p*Utt. But tbe
canonists have many other opinions t>f it, as
to signify r« T^Xnut9antiaua; or of vkXiv, rvrsum.
John Andrea, linota, Aiexandrinns and Jason,
famous professors, think this title to be pot
over the heads of many canons, to signify they
vi ere added by Protopalea a cardinal, since
Grutian's time. And experience excludeth the
first interpret at ion of the word, for that the cs-
nous so entituled are very many, and not re-
jected ns svurii or pa tea. Besides, Burchard
bishop of Wormes, who lived long before Gra-
tian, hath this very canon in his second book,
cap. 213, and there ascribed, as it ought, to
the council of Meldi>; as also by Ivo, pait. 6,
can 2RU. If then it be any where in the coun-
cils, it suffice th ; though the collector mistook
the place, which is easily done : as even the
evangelist Matthew, ca. 27, 9, citeth a place
out of the prrrphct Jc-remy, which is not found
thvre, but in Zaehariah.

It is apparent also that many copies of coun-
cils are un perfect, and want some of the trot
canons, as neglected or not finished by the no-
tary. Dut if need be, this canon hath further
warrant, even from the times almost of the pri-
mitive church. For in Coucil. Agnthensi, of
35 bishops in An. 485, ca. 55, it is said, • Se-

* ccrdott'S et Levitaj canibus ad venandum et
' accipiitibus non utniitiir.' And in Concil.
Epauuensi, of 70 bish«ip«, in un. 492. • Ut

* episcoj.j venstores non shit, nee accipitres
4 alant.' The Capitularies al>o of Ludovicof
imp. taking notice of it, about tbe year 890,
prohibiteth priests, ' ut venntiones ferartna
1 \ el avium minime sectentur/ Addit. 3, ci.
43. Su that we have no reason to account tsil

1173]

STATE TRIALS, 19 James I. 1621.— for Homicide.

[Iltt

Canon either tnppotititium or pa/cam ; lint ra-
tlier to be, a> it is indeed, n-tliiir, antiquum, or
i anttquii. According to which tense, the
canons of like niuure in the laws of the VYLsi-
joths or Western- Out lis ire in every passage
Minuled b; the very Latin word, not the
Greek, anliqua. Ami Jusiinhn hini-ilt seiui-
rth tn Imve had this distinct 'on n lti-> eye,
when Jia culled tin Inter <m stitutinns Nii(if,
i. e. n'Wilbu, that, so they might be marked
iromtltoM o( old, which UcdriiuM in Justini-
an's life eullelli th, waXjuii i-'fmr, Irpti antii/uai.

His mi- 1 :k|. rt'i ii i,, That it is ctteil out

of the fourth council of Orleans, nnd it is nut
there. This wc have already answered, ami
•hewed when it is.

Thirdly, he saith it forhiddeth hunting turn
timb'ii tt tictipiiribut, and mine of these were
there. It is rt range, a keeper should go about
to striae a deer, and not have his lime-hound
10 draw alter Liin. But the canon gnoth t'nr-

«jUS

i all i

Fourthly, votuptelii tatita ; not rrtrratiimil
or TaUladma, « Inch tin hooks say is permit-
ud titan cpiscop". Wh.it his boots s:iv, I
know not ; but my bnuk sail h thus : < Die brc-
' viter, quuii n-ii.incsusn wiiuptatis- est mnrtule
' peccatum, et in liiico ; sed vemiri causa ne-
* cesaitatis vil intliqcuiiie corporis non est mor-
' tale peccatum in clerico tamen polius pro-
' bibetur. lint lie adjuiueth, ' In lenntione,
'potius delvctatio gitain nctus atteuiliiu
Alho. in Othub, fol. 1M, b. Neither is here
beta any mention of ncriallo, unless dtlrclatio
and it lie all one, as commonly we use it, nnd
then for hidden Dfiidfll what action or ra-
Oentiou belonging lo health is then', in letting
etf tl cross-bo* wherein neither head, hanii,
nor f< tot, iiu, not the nitnhtest member of the
body, the eye, stitreth nil that while.

Fifthly, llwcaii-n hath, 'Si sa-pius drtentns
■ fuerit, ' if he make a life or occupation of ir,
'which lib lordship did not.' Burdmrl saiih
aitlMlNt, and with more reason : nnd I miiiposc
hat lordship aseth it very temperately: yet the
apologist in his fifth section 1115111 uJuth, that
bw lordship rim!; it often.

Sittlily whereis he saith tlmt the cation
apeakeih against elumiaa rcnatlo, not guiela or
aWnis; ilind no sue h word or ili«
canon ; yet r* there no doubt, ih
be not killeil out of hand; hut in ream ring j
him, there must lie both rlamar and vemttin. I

Thus he counted] the inou'h .if the canon to I
be Kopt. Yet because it is co.id to make sure i
work with so dangerous an object, now he ;ct- l

this is one, and gives hii reasons : far in Charta.
ilc t'orcstu arch-bishops nnd bishops by name
have liberty to hunt; and m Kic. 9, ca. IS.
' A clergy-man who bath lOi. by the year, may
' keep grey-houtiria lo hunt.'

The name .it Charts de Forestu (and also of
buntiim,) ". ' Claw lachrimahile noraen.' For
tin- first breach that ever was made into the

teth law upon law
canon or at least tli

cracked a great sort of canons. ' That by the
• atrtnte of Henry II. 33, ca. 10. No canon is
' in force in England, which was not in use, or
' is contrary or derogatory to lite laws or sta-
' tutes of tliis realm, or to the prerogatives of
' the royal crown." Of which sort (.lie saith}

r.Wj.y.1,
2, gre»tl_

leoiiis, he obtained :i law in the Cist year of lur
reign, a. v. 1157, to convent them there-
fore before secular judges, and tlicre to punish

Dot tn our purpose : There is no contradic-
tion (as I take itj between the canon tie Clerico
Venature, and Charm or SliIuIiiiii de f'orrtta.
The Ch in in dolh say, thev shall uot hunt ; and
the Mntnte doth not say they fbalt, Ihe words

0 the statute, ca. 17, arcihus; ' An art h- bishop,
' bishop, earl, or baron coming lo us upon our
' command and passing through our forest,'
' Lieeal *i cajiera lin ill bestinnt vel duas, per
' visum fhiestarii, f] iirj--eii" hull M autcm,

1 facial cornnrc, ne vitleatnr lurtmn lucere.*
Here is no word of hunting but luit they may
take n deer nnd ibis they will say cannot he
but either with dogs or engine, and so consc-
ipitlltly by bunting. But the very words of
L'bana de Foreita seem to shew, that it nai
not meant, the bishop should be an huntsman,
for that it nd.nitteth htm not to have SO much
skill in 1 1 u n ting us to wind an horn, though that
liy no law or canon lie fnrlmideii to him. And
therefore -nib not cumin* iptr, but facial rnr-
niair, let him cnu'C an horn to he blown, &c.
I conceive the menoing tn be, that 'he bishops
and barons shall each of tlum lake ns they
mny ; the barons by hllntinc fif they will)
in iiu ir own persons ; the bislmps a's ihey
may, by the hands of their orlicers and ser-
vants. It is a common phrase in all old Char-
ters, tliat tlie bi'linps sh'ill have Sac and Soc,
Tolland Team, Ac. '. e. cognisance of plea,
suit at court toll, and such other customs
shall we intend, tlmt he inns! take these in hii
own peson? No; it was noi Henry 3,1's menn-
iiiB, when he granted the charter of the forest,
to bre:ik the laws of the church: for at the

on in the ! Nuneti;ne in .Mucna ( 'hurta. ca. 1, hegranteth,

the deer I th'i the church sh.ill have * (Imiiiu .jura sun in-

cin-rini. ! tegrn rt hbeiintes suu» il1*>n«;' which could

ut |io't.ll.lt).e, if by his ciiarter be thangeil the

nitons of the ilmrch, especially in :niuti:n of

oiiiiiie unil r.io-ciciire ns, wiien [he church

tiicheth li.il a clerk mujr out be a huntsman,

or him to say that he sli'all be. DotibtlcM, if

liich itnleed hath ! lie won! ), die daM would not then accept it.

In t!ie person ol a bndn-p there he three itij-

liiict facahie*: hi* sptntusl function, wherein he

is a bishop; bis legal abdity, wlierein lie is a

lay-man and hath lilierty to contract, tev. and

his temporal dignity, nhsTCin lie is n baron nnd

peer of the realm, and parlicipatctli their privt-

1175] STATE TRIALS, IOJamwI. 1 621— Proceeding against Abp. Abbot, [1176

ledges. I could put cases wherein every of
these may be seen severed from the other; but
I should then wnndcr from my matter. Only,
I present them thus anatomized, that it may
appear what portion the church had in them,
want the common- wealth, and what the king;
that so it may also the better appear how the
laws both of the church and kingdom are to be
apply ed unto them respectively.

When therefore the king granted temporal
lands unto them ; though they took them as
lay- barons, aud in their temporal capacity, yet
might they not otherwise use them than might
stand with their spiritual function : no more
than when he granted ecclesiastical possessions
to a luy-man, the grantee might otherwise use
them than as a lay-man. For example; it was a
common thing in old time, that the king grant-
ed churches tq lay-men, by the name or' Eccle-
siam de Dale and Ecclcsiain de Sale ; yel it
wus never intended that the grantee, though he
had the churches to order and dispose, should
(contrary to bis vocation) meddle with the di-
vine service, but preset) t his clerk only. So in
like manner, when the king granted to clergy-
men, chaccs, park*, and warrens ; it was not
intended that, contrary to the rules of their
profession and laws of the church, they should
or might become hunters and foresters.

My long stay upon this point, is a prepara-
tive to an answer to the next, which is the sta-
tute of Kic. 2, being in the negative, * That no
' priest nor other clerk, not advanced to lo/. a
' year, shall have or keep any greyhound, nor

* other dog to hunt; nor they shall not use
4 ferrets, haves, nets, hare-pipes, nor cords, nor
4 other engines, for to take and destroy deer,
' hares, nor conies, &c. upon pain of one year's
' imprisonment/ Trie statute, 1 say, is in the
negative, and saith that none under 10/. a year
shall keep; but saith not in the atiirmative,
that it shall be lawful for them that have 10/.
a year to keep, ore. I should therefore think,
that this statute doth not discharge n priest,
having 10/. a year using hunting, against the
canon-law : no more than the statute of Usury,
forbidding a man to take above 10/. loan for
an 100/., giveth him liberty to take that 10/.
or doth discharge him against the canons of
Usury.

Touching his inference, that Lin wood speak-
eth not one word agaiu>t hunting simply
by clergy-men, but against their using it in
places restrained; it is true, for the text of the
canon led him no further ; being only ' De Cle-

* rico, de tmiisgres>ione Tores'* aut parci ali-
' cujus dirfHinnto,' and made to no other intent
than to aggravate the censure of the ecclesias-
tical law, which before was not sharp enough
against offenders in that kind. Hut Johannes
de A thou, as creat a. canonist and somewhat
elder, whom Linwood often citeth and relieth
upon as one well undt rstanding the eclenustical
constitutions and the luws of Kodand, hath ap-
parently condemned it in the place hy me re-
cited. Vet is it to be noted, that neither Atbon
nor linwood intended to gloss upon all the

constitutions of the church of England ; but
Atbon only upon those of Otho and Othobon;
and Linwood, beginning where Athon left, upon
those of Stephen arch- bishop of Canterbury and
his successors. There are therefore a great
number of canons and constitutions of the
church of England, which neither of these ca-
nonists have either meddled with or so much as*
touched : as also there be many statutes ia
force, which are no where mentioned in any
of the abridgements. But Jo. de Burgo (ano-
ther English canonist and chancellor of Cam-
bridge, who wrote in Richard id's time) taketh
notice of this canon, and that hunting was there-
by forbidden to our clergy-men, as appeareth ia
his Pupilla Oculi, part. 7. ca. 10, in.
To go on. The Apology saith, < That the

* arch-bishop of Canterbury had formerly mote
' thin twvnty parks and chases, to use at his
' pleasure, and hy charter hath free-warren in

* all his lands.'

Habuissc, lugubre : it seemeth the wisdom of
the latter times, the more pity, dissented from
the former ; yet did not the former approve that
bishops should use them at their | leuaure, bat
as the laws and canons of the church permit*
ted. For as they had many parks and war-
rens ; so had they many castles and fortresses,
and might for their salety dwell in them : Lot
as they mijit not be soldiers in the one, so
might they not be huntsmen in the other, la
like sort, the abbot and monks of St. Albairi
(as Mat. Paris reporteth the case, in an. 1240,
pa. 205.) had free-warren at St. A I ban's, eta
by grant of the kings, and recovered damages
against many that eutered into the same and
hunted ; for the having of it was lawful, as
appeareth in the Clementines Tit. de Statu
Monast. § Pprro a Venatorihus. But it is
there expressly forbidden, that either they should
hunt in it themselves, or be present when
others do 'hunt, or that they should keep,

* Canes venaticos aut infra monasteria seu do-

* mus qua* inhabitant, aut eorum claosuras, pa.
' 207.' Radulphus de Diceto in an. 11 09, saith,
that the bishops of that time affected to get
into their bauds ' Comitatus, v ice-corn itatus,
' vel castellarias ;' Counties, sheritfwicks, and
constable-ships of castles; but shall we think
they either did or might use them in their own
persons, as with banners displayed to lead forth
the soldiers of their county, or with sword aad
target to defend the waifs of their castles, or
with a white wand to collect the king's reve-
nues, Ac. It is true, that Walter bishop of
Durham, having bought the county of Northum-
berland of William the conqueror, would needs
sit himself in the county-court ; but he paid
dearly for it; for his country-meu furiously
slew him, even sitting there. Matt. Paris in
an. 1075. So Hugh bishop of Coventry exer-
cised the sheriff^ place, hut was excommuni-
cate for it. as * contra dignitatem episc.' and w
acknowledged his error. Dicet. in an. 1190.

But every one will say, it was a commoo
thing in old time for bishops to be judges in se-
cular courts. I confess it; and think it gudl/

11771

STATE TRIALS, 1Q James I. 1G21.— for Homicide.

[1176

and lawful as it was used at the first. For the
bishop and the earl sat together in the county
court: the bishop as chancellor, to deliver
Dei reetvm aud pcpulum docere ; the earl as
secular judge, to deliver rectum seculi and />o-
vulum coercere ; as is manifest by the laws of
aing Edgar and others. But when the bishops
began to supply both places, and to be meer
judges of secular courts, then were they prohi-
bited by many canons. And therefore Roger
bi»ly>p of Salisbury being importuned by the
king to be his justice ; would by no means ac-
cept it, till he had obtained dispensation, not
only from his metropolitan the archbishop of
Canterbury, but from the pope himself, as Di-
cetus amniieth in an. 1190, and no doubt but
others of wisdom did the like. In those things
therefore that bishops did against canons, we
tnust take uo example to follow them : for
•though their public actions be manifest, yet their
dispensations and matter of excuse is for the
most part secret. Neither doth every thing
done against a canon produce irregularity, if
some cruniuotis mischance follow nut thereon.

For the record that relatcth that the bishop
of Rochester was at his death to render to the
archbishop of Canterbury his kennel of hounds
as a mortuary, and that the law takes notice of
it for the king udt v>tcuntc, under the name of
muta canum and mulct un: : 1 must (as they say
in the law) demand Oyer of the record ; we
shall otherwise spend many words in vain. But
that dogs should be given for a mortuary is
against all likelihood. For a mortuary, is as an
ottering given (by him that dieth) unto the
cberch, in recom pence of his tit lies forgotten ;
and it is a plain text, Dcuter. xxviii. 18. ' Non
4 oflcres lucrcedem prostibuli,nec pretium can is
4 in domo Domini/ But if there be no other
word to signify a kennel of hounds, than muta
canum and mulctura, the exposition may be
doubtful, though it come somewhat near it.
Freder. 3. emp. in the prologue to his second
book de Venatione, speaking of an hawks-iuuc,
saith, Domicula qua dicitur muta; following
the Italian vulgar, which cometh a mutando,
because the hawk doth there change her coat.
And for the affinity between dogs and hawks, it
ma? be mmt&x{xt**~i transferred to a dog- kennel ;
and whether to the hounds themselves or no, it
is not much material. For, no doubt, they that
may have parks and warrens, may have dogs
and hounds for hunting : but every body that
nay have hounds may not use them themselves,
as appeareth by that which I said before out of
the Clementines, and by the opinion of justice
Bradnel, with the rest of the judges, 12 lien. Q,
fol. 5. where it is said, a man may keep hound*
notwithstanding the statute of 13 It. 2, but he
must not hunt; as he may keep apparel of
cloth of gold, notwithstanding the statute of ap-
parel, but lie must not wear it. Besides, reli-
E' >us persons in ancient times were driven to
ve clog-kennels fur the king's hounds : for Had.

Niger iu an saith, that king Henry 2,

' Abbates, hypodromos et canum custodes fecit.'

After all this, his lordship is defended with

the perpetual use of hunting by bishops in their
parks ; aud by the particular examples of some
eminent men his predecessors, and others. This
point of use and example I have in a manner
answered before ; speaking, as it fell in my way,
of bishops being secular judges. One line
serveth to level at them both : yet for further
aud more perspicuous resolution of the matter,
see both the example and the use censured in
the dec ret. 34. distinct, ca. 1. by pope Nicho-
las, ad Albinum archiepisc. alias Aluinum.
' Quemadmodum relatione fideliuin nostris au-
' ribos intimatum est, quod Lanfredus episcopus,
' qui et juvenis esse dicitur, venation* sit dedi-

* tus ; quod vitium plurimos etiam de clerical!
' catalogo, geuere duntaxat Germanos et Gal-
1 losirreverenter implicut, verum iste (si ita est
1 ut audivimus) merito juvenis dicitur, quiju-
' vcnilihus desideriii occupatus, nulla gravitate
' coiKtringitur.' Et infra: ' Nam (ut Meatus dicit

* Hieronymus) Vciiatorein uunqtiam leeiraus
' sanctum.' Then blaming him also for being
too familiar with his daughter, he saith, * Opor-
1 tet ergo fraternitatem mam synodalecum epis-
1 copis et sulTraganeis tuis convocarc concilium,

* et hunc salutartbus colloquiis episcopum con-
' venire, atque illi pastorali authorittite praeci-
' pere quatenus ab omnium bestiarum vel Vb-
' lucrum venatione penites alienus existat :' or
(in short) to excommunicate him.

Here he shewcth hunting to be used both by
a bishop and by a multitude of clerk*, (pluri-
mot.) But neither the person and dignity of
the one, nor the multitude nor freouent use in
the other, maketh the pope to uUtaiu from
condemning it. Howbeit, they whose example
the Apologist alled&eth, little respected (as 1
think) the whole volume of canons.

Touching the record of the earl of Arundel's
excommunication for taking up the archbishop
of Canterbury's hounds coming into the carl'*
grounds to hunt; aud the archbishop's pleading
That it was lawful for him to hunt in any forest
of England whensoever he would, we must (as
we before sail) pray Over of the record ; for
parols font plea, and their certainty appears not
here, nor what became of the issue : which,
though it fell out to be found for the archbishop,
yet perliaps it discharged him not against the
canon. And well might he be as bold with the
canon, as he was with the law. For it is di-
rectly against the law both of England and
France, to excommunicate a peer of the realm
without the kind's assent : and therefore Henry
3 Mas sore offended with the archbithou for this
excommunication: (aud the hi.- hops ut Loudon
and Norwich were called in question for the
like in Henry the second's time ; u» Matthew
Paris reporteth, p. 99.) But because lu» case
sways the cause to the ground ; I must dwell a
little the longer upon it, to shew what became
of it. The truth is, it was ended by comprise
in the chapel at Slyndoit upon Friday after the
circumcision of our Lord, 11258, that is, -13 Hen.
3, in this manner : ' quod idem archiepiscopus
' et successores sui semel in quolibet anno ct
' non plus, cum transierint per dictum forestain

1179] STATE TRIALS, 19 Ja*M I. \6<2\.— Proctedings against Ahp. Abbot, [11»

• (t. e. de Arundel) cam una lesia de sex lepo-

* rariis sine aliis canibus et sine arcu habeant

* unum cursum in eundo et aliuin in redeundo ;

* ita quod si capiant unara fcram, illam habe-

• bunt; si nihil capiant in illo cursu, nihil habe-
4 bunt. Si vero capiant plus quam unam feram,
4 archiepiscopi qui pro tempore fueriiit, habeant
4 quam elegerint, et residuum habeant dictus
4 Dominus Johannes etharedes ej us/ &c. Then
is it further awarded, that the said earl, his
heirs, and assigns, shall yearly for ever pay unto
the said archbishop and his successors, 13 bucks
and 13 does, (capias defcrmysun as the record
saith) at times there appointed. And then fol-
loweth this close, which makcth all plain ; ' Et
' actum est expresse inter partes de pnecepto
4 et ordinatione dictorum arbitratorum, quod
' diets partes procurabunt confinnationem do-
4 mini paps et dotnini legis super prasenti con-

• firmatione.*

By this record it appeareth, thnt neither the
earl could make this grant without licence from
the king, (for that all forests are the king's, and
no subject can liuvc them otherwise than in cus-
tody) nor the archbishop could safely use the
privilege of hunting without dispensation from
the pope : and though I yet find not where the
one was obtained from the pope, yet I find
where the other was granted from the king;
and namely from Edward the first in the 2nd
year of his reign ; whore all the award and com-
position beforesaid, is (by way of inspeximus)
recited and confirmed. But the composition
for the bucks and does, was after in Edward the
third's time released by the archbishop Simon
Islip, having taken for the same 240 marks; as
witness Antiqq. Britann. ca. 55.

And it sccmeth further by this record, that
tlie archbishops of Canterbury had not at that
time dispensation from the pope, to hum where
they listed in any forest of England ; for then
Should lie not hive needed special dispensation
in this case. But howsoever the dispensation
or confirmation was hereupon obtained ; it is
apparent that it stretched no further than to
hunt with grey-hounds ; for the bow is ex-
pressly forbidden a,nd excepted.

It may be, some will extend the word con-
firmation, to be meant of some right of hunting,
which the arch-bishop (upon this arbitrament)
was to disinherit his church of: which i leave
to the judgment of lawyers. For it may con-
rain both ; though I never saw any precedent
of the popes in that kind for so small a matter:
but of the other kind, we have before made
mention of one to Roger bishop of Salisbury,
and a multitude of others are to be produced.

Again, if they have a dispensation for hunt-
ing, yet it hath some limitation either for the
place or the manner ; which his lordship (if he
justify under thnt) must shew particularly.

To come now at last to the last point of the
Apology, draun from the particular example of
arch-bishop Cranmer; who, in the description
of his life (Britannicarum Antiqq. ca. 08.) is set
forth to hunt, shoot, and ride a great or stirring
home with notablo activity, even when lie was

arch-bishop, and in the wonts recited by the
apologist. But these be exercises of war, net
' of religion ; fit for barons not for bishops; who
in ancient time, following the example of our
Saviour and his apostles, walked on foot, at ap*

{>eareth by Bede, Eccl. Hist. 1. 3. ca. 14. and
ib. 4. ca. 3. and beginning to ride, osed here »
England mares, as Bede also witnesseth, lib.*,
ca. 13. in other places mules, not horses ; for

* Belhim haec armenta minantur,' as not only
the poet saith, but as the scripture also, Pror.
21. ult. ' Equus paratur ad diem belli/ And
such belike, did this arch- bishop Cranmer
mount upon and manage, as the word simply,

* ut in famulatu sno non fuerit quisqunro qui in
' generostim cquum st»lirc, ac U-actare elegantios
' — potuisset.' Besides the shooting here men-
tioned seemeth not to be the long-bowe, which
stirreth the body and is profitable to health,
but that deadly engine (which irnagineth mis-
chief as a law) the cross- buwe, whose force a
man cannot mitigate as in other weapons, and
is properly numbered amongst the instruments
of war ; and therefore by a multitude of canons
prohibited to clergy-men, so that they may not
use them ' pro justitia exercenda' (as nppearetb
by the cony tit. of Othoh. Tit.) * de Clerieif
' arma portan.' nor ' equitnntes per loca peri-
' eulosV as it is in the gloss upon the decree.
of Gratian p. 9P2. where the text is, ' Clerici

* arma nortontcs et jusurnrii excommunicentur.'
But I have gone the length of my tedder, I
mean as far as the Apology leadeth me; and
therefore now * mamum de tabula.

The rase of this reverend and most worthy
person deserveth great commiseration and ten-
der handling : lor who can prevent such unex-
pected casualties ? Yet may the consequence
prove so mischievous both to himself and those
that are to receive their consecration from him,
as of necessity it must be carefully looked into
and provided for. Let me remember an ancient
precedent, even in one of his own predecessors,
Stigand, archbishop of Canterbury in the time
of the conquest, who, because he had not ca*
nonicnlly received his consecration, but from
the hands of pope Benedict (who stood excom-
municate and rarris interdictutS was not only
deprived himself by authority of a council, bat
also the hifrhops and abbots which had taken
their consecration from him. Therefore the
bishops of Wells and Hereford fore-seeing that
evil ; to make all clear, fetch their consecration
at Rome from pope Nicholas: Vitabant enim
(saith Flor. Wigorn. in an. 1070.) € a Stigandn
' qui tunc Archiepiscopatui Dorobernim prwi-

* debat, ordinari : quia noverant ilium non Ca-
' nonice Pallium suscenissc.' It is good to follow
the counsel of Gratian in the like matter:
' Consult ius est in hujusmodi dubio abstinere
4 quam celebrare,' ca. 24. 1716.

But because we arc fallen into a case, where-
in perhaps some extraordinary consecration nwy
be required ; let roe also relate a strange coo§^
cration used in the entrance of the reign of
Henry 1, an. 1100. where Eadmere a monk*
Canterbury being elected by the ctorgjr ■**

1181)

STATE TRIALS, IOJammI. Itel. -for Homicide.

[1183

people of Scotland to be bishop of St. Andrews,
with tbe great good liking of king Alexander
and the nobility. Yet by reason of some dis-
contentments the same king had conceived
against the arch-bishop of York, within whn«e
province Scotland then was, he would by no
means agree that Eadmere should tnke his con-
•ecration from taut arcli-bishop ; and after
much consultation how then it might otherwise
be" performed, it was at lavr agreed, that the
staff of the bishop rick should l>e solemnly laid
upon die altar, and that Eadmere taking it from
thence, should receive it as delivered him from
God himself: which accordingly was done.
This en I let h to my mind another of like nature,
somewhat more ancient : where Wulstan, tbe
good bishop of Worcester, both resigned his
btshoprick by laying the btaff Uiereof upon the
shrine of St. Edward the confessor (by the
agreement of a council holden under La n franc)
and in like manner received the same again
from thence, in the presence of king William,
the arch-bishop Lan franc, and many others ;
not without some miracle, as Matthew Paris
write th it in an. 1095. These as rif^y*-

And thus, in this matter of shooting, if I have
done as the proverb saith, shot like a gentle-
man, that is fair, though fur off, it suiheeth. I
hambly crave purdon.

PXSPENSATIO cum Gcorgio Archiepiscopo
Cantuariensi super Irregularitade.

•* REVERCNDibsiMO in Christo Patri Gcorgio
procidentia divina Cantuariensi archiepiscopo,
totius Anglia? prirnati, et metropolitan, Johan-
nes Lincoln. Georgius London. I^ancelotus
Winton. Samuel Norwicens. Thomas Coven.
et Lien. Arthurus Bathon. et Wellen. Nicolaus
Eliensis et Georgius Ciccstrensis permissions
dnriua respective epitcopi de proxincia Cantuar.
Salutem et gratiam in Domino sempiternam.
Itecipimus literas commi^ionnles a sereni&simo
in Christo principc. ac domino nostro domino
Jarobo Dei gratia Antrlis, Scotia*, Francis et
Iltbcrnix rcge, fidei defensore, &c. sub ma^no
ligillo Angli.e confcctnsct nobis directum ; qua-
rum ten* r sequitur in ba*c verba : * Jacobus

* Dei jgnitia Angliat, Scotia?, Frauciv, et Ili-
4 bemue rex, fidei deftnsor, &C. Revere ndo

* in Christo Patri et pcrdilectu et perquain
f 6deli cmsiliario nostro Johanni cpiicnpi Lin-
4 coin, custodi ina«jni Mirilli nottri Anglio1, ac
' reverendo in Christo Patri Gcnnri-> cpicopo

* London, ac reverendo in Christo Patri ac per-

* ditecto rt pcrquuui fidtli consi'iririo nostro

* Lanceloto epiicopo Winton. iircnon reveren-

* dis in Christo patribus Smnueli Norwiccn.
'Thorn* Coven, et Lichen. Nirh"hio EJien.
- Arthuro RHth«u. rt Wellen. et Ceor-jio Ciccs-
1 tren. respective episcopis, *aJut<m etaratinu.

4 Humili nobis supplication e cxposuit reve-

* rendisstmus in Christo Paier, pordiUcfiis et

* per fide lis consiliarius nostor Georgius (\in-
1 tuar. archie piscopn s, quod cum nuper in
1 ptrco qtridam voruto Bramzil-park aj»ud
4 Bramzil in comimtu nostro Sotuhamton. per
' honorandun virgin ejuidem parci dominum

rogatus et invitatus damam sagitta figere
destinaret, debita adhibita diligentia ne quid
hide periculi cuiquam eveniret ; forte lamen
accidit ut sagitta ub eo amissa et in feram
di recta, in quendam Petrum Hawkins adhunc
parci pra'dicti custodein, ini provide el teincrg
se pencil lo ictus sagittae expont ntcm, et per
locum ii bi a pnefato archiepiscopo conspici
non potuit cum impetu transcurrtntem inci-
dercr, eioue hruchiam suae in ret ; ex quo qui-
dem vuhu-re infra uaius* hone spaciuin ex-
pirabat : ct quamvis propter hiijusmodi homi-
cidium ca^uale, nulla prafati archiepiscopi
culpa sed ipiius occisi temeritate contigens,
idem reverendissimus pater bona fret us con-
scientia, se nullam omnino irregularitatem in-
curris&e, per^uasissimum Irnbeat; provida ta-
men animi circumspect ione, et ut omnis in-
firmorum mentihus bcrupulus cxixnatur.secum
a nobis super omni et omnimoda irrrgularitate
et irregularitatis nota aut suspicione, si quam
prsmissorum rat ione contraxisse forsitnn ali-
quibus videri possit, ad cautelam et ex super-
abundanti di»pensari humiliter supplicavit i
Sciatis igitur quod nos petitionis hnj usmodi vim
et eiheaciam regio animo ct pio aftectu pon-
derantes, et de veritate pnemissorum solicit*
indavatione certiort-s facti, ct utpiam reve-
rendissimi pntris intentionem hac in re sequa*
mur, et ad ubundatiorem cauttlam, perfidelis
coniilitarii nostri optimeque de ecclesia et
rrpiiblica n.eriti pra'sulis statum, famam, ct
dignitatem, nostri ctiam patrocinii minima
tcneri ct firm arc dignoscaniur, ad prxsentem
veuimus dtepoMtionetn : Vobi-que vel aliqui-
bus sex ve^trum, quorum vos pra^fat. Jolian-
nein Lincoln. Georgium London. Lancelotum
Winton. tt 'Samuelum Norwiccn. respective
epi^copos, mi;ituor esse x»Iun»u»>, de quorum
eti:tm fide, juilicio,et industria pluiimum con-
fidiinu°, inaiuh<.iiui9 et de gratia nostra spe-
ciali et ex Buctorin'te nostra rvj;ia suprema9
et ecdeaiastica qua fnngimnr, pro nobis
hajredtbii:*, et Micce^snribus nostris d:nnus ct
plenum concednii'ts facultatem rt potestateni
p( r pr;i &eutc«v ijuati-nui vos vol aliqui sex
vesirum ; quorum \Q* pnHalos, Johanncm
Lincoln. Gcori*iuiiiIjuiidoii. Lancelot mn Win-
toii. ct Samuelem Norwicen. re^piciive e]»is-
copo», quatuor e^se lolumus, emu prasfato
rcvcrciidi^dinio pmrc supi roinniet oinnimod.
juris vel fpctidefuctu, ccnjiiro, ^:.\e (-ana ali-
(|na canonica ct (.rclcM<iMica, prx*eitim vero
iriicularitatL' onuii seu irre^idarii.atis nota, si
qua: foo.itan ratioite |ra.iu:MOiuru coutr.icta
fnit, vc I quil us<km < outructa esse \idcuntiu*,
utque in tn^ccpti^ oidinihu* et jiirisdictionibus
bccundtim conrredituMi fcihi ratione ordinis
er arcliiifiiscopatus- «-ui po!< station libere mi-
nistrare, frui, exc-reerf, ct irnudere valeat, ad
rniijorcui C'juielum (!i*pcm-*tis, uc ca?tera
omnia et singula qua? ad btatuin, connnodum,
et honorein pi n-fnti rev*1 endis«iini pat r is con-
serv.indum etcorrolioiaiidniii in hoc parte ne-
ces-a;i» fm rint «u qminodolibet oi>portuua
facialis, tt diipi usali meui bujusmodi, cactcra-
que aic ut pnrfctiur per vus aut aliquos fct x

11S5] STATE TRIALS, 22 James I. 1624.— ProeeMtogt an ike Impeachment [11S4

* vestrum, quorum vos prcefatas, Johannera
4 Lincoln. Georgium loudon. Lancelot oniWin-
' ton. el Sumuelem Norwicen. respective epis-
' copo?, quatuor esse volumus, facienda in

* debtta juris forma concepta, et inscriptu, re-
' ducla, sigillisque vestris seu siirillo uliquo au-

* (hentico munita, pr&fato archicpiacopo tradere
' non difforatis. Quam quideui dispensuticuem,

* cxtcraque sic ut praefertur per vos aut aiiquos
< hex ve.«trum, quorum vos prxfatos, Johannem
' Lincoln. Georgium London. Lancelotum Win-
' ton. et Samuelem Norwicen. respective epis-

* copos, quatuor esse volumus, pagenda &ub
' inagno insuper sigillo nostra Anglise contirmari
' volumus, et super hiis prafuti magni sigilli nos-
' tri custodialiisque cancellaria nostras ininistris
' quibuscunque expresse mandamus, et plennui
' tcnore prcsentiurn concedimus potestatem.

* Teste meipsp npud Westnion. vice si mo se-
' cundo die Novembris, anno regni nostri An-
' glis, Francis, et Iliberniv, decimo nono et
' Scotiae lv.' Secundum tenorem et txigentiim
literarum commissicnalium pra*recitatarum, et
ad eximciidutn omnem scrupulum ab infirmo-
rum mentibus, si quis forsitan sit aut fuerit in
ea parte conceptus. Nos pradicti, Johannes
Lincoln. Geor^ius London, Laucclotus Wiuton.
Samuel Norwicen. Thomas Coven, ct Lichfeld.
Arthurus Buthon. et Wei I en. Richard us Elien.
et Georgius Cicestrens. respective cpiscopi,
nomine primitus invocato uc Dcum patrciu
oculis solum habeutes, et considerantcs atque
pro ccrto habentes quod dicta venatio cui per
I* data erat opero, quango dictum casuaie
liomicidium, tc nihil tale suspicante, accidebat,
crat modesta, decens, ct quieta, et quod debita
per se adliibita erat diligcntia in dicta venatibne
ad pnecaveudum ne quid periculi ulicui iude
even i ret, Tecum, prwiaio Georgio nrchivpiacopo
Cantuariensi super omni irregularity te et irrc-
gulnritatis nota, si quam forsitan ratione casu-
:dis hwiuicidii sive mortis praiati Petri Hawkins
incurristi vel aliquibus iticurrisse videaris ad
omnem et quulcincuuque juris flfectum dis-
pensamus; teque prafatum Georgium archic-

piscopum Cantuarieosem ac personam tuam
ab omnibus et singulis inhabiliutibus, sus-
pension ibus, irrtgularitatibm, aliisque poenis,
impediment is, ceusuris, et coercioinkms quibus-
cunque eccltMHSticis sive canonicis, si quam
forsitan ratione pr.emissorum aut eorum alku-
jus incurristi aut aliquibus iucurrisse videaris,
ad omnem et qualemcunque juris effectual
liberamus ac tenore pjassentiuni pro libersto
haberi decern inms et pronunciamus : quemque
defectum, Jab em, notam, sive maculam, (si
quam forsitan ratione premissorum aut eoruta
alicujus contraxibti aut aliquibus contraxisse
videaris, peuitus abolemus ac pro abolitis haberi
decernimus et pronunciamus: Teque ctiam
prafatum Georgium archiepiscopum Cantua-
riensem ex superabundant! et ad majorem cau-
telam, rehabilitamus et restituiinus ad omnem
et qualemcunque juris effectual: Et ut in sus-
ceptis ordinibus et archiepiscopntu pnedicto,
ac in omnibus et singulis jurisdiction] bus, phvi-
legiis, prseeniinentiis, prerogatives, ditnitatibus,
atque aliis rebus quibuscunque, aliquomodo
ad dictum archiepiscopatum spectantibus et
pertinentibus libere ministrare valeas, concedi-
mus et inriulgemus, periude ac si pnedictom
ca&uale liomicidium cominissuin non fuisset;
canonibus, legibus, decretis, ordinationibus, et
constitutionibus ecclesiasticis quibuscunquecon-
trariis (si qua sint in ea parta contraria) in ali-
quo non obstantibus. In cujus rei testimonium,
sigilla nostra episcopalia, hisce praesentibus ap-
poni fecimus. Dat. duodecimo die Decerabns,
anno Domiui millesimo sexcente simo vioesiuio
piimo. — Teste rege apud Westinon. 24. die
Decembris anno regni rej^is Jacobi, ckc. xix. tt
Scotiae quinquagesimo .qumto/'

The subsequent rustication of the Arch-
bishop to his house at Foord was altogether un«
connected with the unfortunate event which
gave rise to the proceedings related above, and
rtbulted, according to bishop Ilacket, merdf
from his refusal to license Dr. Sibthorpe'f
Sen nun.

122. Proceedings on the Impeachment of the Lord Treasurer Mid-
dlesex, tor High Crimes and Misdemeanors: 122 James I.
a. p. 16C4. [Journal of both Houses of Parliament. 1 Cobb.
Pari. Hist. 1406. J

cers of the crown should be sent for, to be exs*
mined on oath, relating to this atiair, viz. «r
Edw. VVard:»iir, clerk of the pells, sir Rob. Pif,
sir Thomas Mounson, sir Thomas Dallisoo, fir
lid. Morrison, sir John Keyes, sir A. Ingram,
sir Thomas Cook, sir Thomas Morris, clerk oi
the ordnance, and sir John Male.

April i>. It appeared who the noble lord wai
whose conduct had been objected to; for, K>ow
orders being made this day, relating to tbesit-
tingt of the Committee on Munitions, Storey
&c. we arc told, by the Journal, that the U*&
Treasuier (Middlesex) ktood up and *&

April «2, 16'M.

TllK Archbishop of C/untcrbury, (George Ab-
bot; reported* Thar, in a Committee appointed
to examine the Stores and Ammunitions of War,
some speeches had pu*t, the d.iy before, which
concerned the honour of a L<»rd of that Hou»e;
and that the said lord desired Examinations
might betaken, upon oath, for the clearing theie-
of. Whereupon the house ordered, That a
sub-committee should be constituted to take
jjuch Lxamiiiatioiin, and the witnesses to be
worn in court. Abo, Tiat the following otli-

i

11S5] STATE TRIALS, 22 James 1.1 621.— qf the Lord Treasurer Middlesex. [11S6

" That he would desire no favour but expedi- I
tiou; and, when tliey had done," his lordship !
would sliew a dangerous plot, conspiracy, and
combination against him ; which, it it was suf-
fered, iio man would be in safety in his place.'*

April 8. The Lords received from the Com-
mons, the following Message : " That whereas
they yesterday sent to desire a conference with
them, for the better accommodating the bill of
Monopolies, to be this morning at nine, which
their house intended to have done accordingly :
but, that now a great and weighty A flair, as
ever yet came before thera, intervening ; and
many of their committee being employed in the
Examination and enquiry thereof, who were
formerly appointed to attend their lordships at
this Conference, they humbly desire to be
•pared at this time, and they will attend at any
other which their lord-hips shall appoint."

April 9. The Lords being reminded of the
words used by the Lord Treasurer, April 5, of
u a dangerous plot, conspiracy, and combination
•gainst him ;" and because die words were
doubtful and generally spoken, his lordship was
required to name the parties that had so con-
spired against biiu ; for, otherwise, an imputa-
tion laipht rest upon that house, or some of the
members, tin re beiiig, at that time, a Com-
mittee on Munitions, ifce. who had taken divers
Examinations concerning his lordship as lord
treasurer. Whereupon his lordship cleared the
bouse, absolutely, Irom any combination against
him ; and further protested, that at that time,
he did not name or meuu any member of that
bouse.

April 12. A Messuge came from the Com-
mons in order to put off the intended conference
again; because tliev said, That a lord of that
bouse had d»ired to be heard, by his counsel,
io theirs in the afternoon ; which they had
yielded to. On this a motion was made to
consider, that it might trench deep into their
privileges, for a lord of that house to answer
an Accusation in the house of commons, either
by his counsel, or hy sending his answer in
writing. But, upen the humble request of the
Lord Treasurer, the house gave him leave to
send his Answer to the complaint of the Com-
mons if he pleased. However, an order was
made, " That no lord of that house shall h* re-
after without licence, answer any complaint in
the house of commons, either in person or by
bis counsel."

Then the arch-bishop of Canterbury reported,
That a committee lieing appointed to consider
of the Stoies, Munitions, &c. somewhat had
happened in their Examination thereof, which
touched die honour of the Lord Treasurer.
Whereupon the said lord desired, that the ut-
most truth thereof nnu ht be enquired into. Ac-
cordingly witnetses hud he*n sworn here, and
a sub-committee appointed to take their Exa-
minations ; which, beinir reduced into writing.
his grace delivered to be read. But, before
that was done, the Lord Keeper signified to the
home that he hud received a Petition from sir
Tho. Daliison, delivered unto him by a member

of tliis house, uho desired it might be read be-
fore the said Report. Which Petition was ad-
dressed, " To the right hon. the lords spiritual
and temporul in parliament assembled," and
ran in these words :

" The humble Petition of sir Thomas Dal-
lison, sou of sir Roger Dallison, knt. and
bart. deceased.

" Whereas there was an Examination, before
a committee of your honours, concerning the
lands of his said father, compounded for with
my Lord Treasurer ; w hereupon there is an Ac-
count given to your lordships, by one Mayle,
a bchvener, on his lordship's behalf, of 26,000/.
or thereabouts, to he given hy the said Lord
Treasurer for the said lands, as Mayle reported ;
now, for that this petitioner and his mother
were forced out of their estate therein by his
lordship for a very small matter, by colour of
his majesty's extent ; and is able to make ap-
pear to your lordships that there hath not been
much more than half the sum of 26,000/. really
either in money or money's worth, given for the
same by liis lordship; and for that the said
lands arc of far greater value ; and this peti-
tioner ought, in all equity, to have the benefit
of compounding bis father's debts, and the
benefit that should accrue by the surplusage of
the estate : he most humbly desireth your ho-
nours to stay the Report, and grant your peti-
tioner a copy of the account before the same
pass from the lords of the committee; and that
vour petitioner may be allowed to make such
just exceptions thereunto, as to the honourable
lords of the committee shall seem reasonable.

Tno. Dallison."

A motion was mnde, Whether by the orders
of the hou>c, the Lord Treasurer may be present
wheu the Report is read ; became tl»e same
concerns his honour? It was agreed, That he
might be present, at the firbt reading, but not
when the same sIk.I1 be debated hy the house.
Then the Attorney General read the Report in
hac verba :

" The State of the Business referred to the
Sub-Committee for Munitions, &c.

«' On the 28th of May, 6 Jac. 1608, a privy-
seal was directed to trie Lord Treasurer and
under treasurer of the exchequer, for the time
being, for the is^uinz out *uch sums of money,
not exceeding 6000/. per ann. as by quarter-
bonks should appear to be due to the oriice of
Ordnance for Wages or Provisions. — The allow-
ance was duly paid until the 1st of April 1614 ;
but then, or shortly alter, by the default of sir
Roger Dull i*o n and the officers of the exche-
quer, sundry payments were uuordtrly made,
whereby the oince was unfurhMud ; und Dal-
lison, uho had received tlmse moneys and not
employed them as he ought, became indebted
in grertt arrears to his map sty. — Upon com-
plaint "hereof, in Nov. 1617, his majesty made
a reference to divers lords of the council ; w l.o,
in Dec. 1617, returned under their hands a pro-
position of Supply, estimated at 51,078/. 8*. 8</.

1 187] STATE TRIADS, 22 Jambs L 1 624.— Proceedings on the Impeachment [UK

—In February 1619, his majesty's commission
was awarded to the commissioners for the navy,
whereof the now Lord Treasurer was one of the
chief, to survey the Office of Ordnance ; and
they, in July 1620, made a Return hereof to
the council, with their opinions how the Maga-
zines might be furnished with a present supply
of 13,640/. 14s. 2d.; how the ordinary allowance
of 6,000/. per ann. might be reduced to 3,000/.
and how by cutting off many unnecessary
charges and other means, his majesty might
have yearly near 10,000/. And those propo-
sitions made by them, in Michaelmas term
1620, received allowance from the lords, and,
at last, from his majesty himself. — In Dec.

1620, (he lord viscount Mandevillc became
Treasurer ; and in May 1621, a privy-seal was
drawn by ihe officers of the Ordnance, for set-
tling the said 3,000/. yearly, and for payment of
die said 13,640/. 14s. 2d. But the same, being
considered of by the commissioners of the navy,
was rejected, because it swerved from their

Impositions; and so, the lord Mandeville
eaving the treasurership about Michaelmas

1621, nothing was done. In Oct. 4621, the
earl of Middle s( x became Lord Treasurer, and
having continued in that place 2 years and 6
months, in all that time none of the three estab-
lishments, viz. that o\' 6 Jac. by the dormant
privy-seal ; that of 1617 by the lords ; nor that
of the commissioners of the navy in 1(320, have
been observed ; whereas, if that of the com-
missioners of the navy (being the least chargea-
ble to his majesty and in which the Lord Trea-
surer himself was principal i*geut,)'had been
observed, it is conceived, that the Stores had
been in muqh better case, and a course had
therein been settled to have retrenched a need-
less charge of near 10,000/. per ann. as a fb re-
said. — Aud whereas, in April 1621, a contract
was made with Mr. Evelyn, to serve his majesty
yearly with 80 fasts of Powder, at Id. pt?r lb.
the waut of the payment of about 500/. a
month, hath deprived his majesty of the benefit
of that contract ; which, for 20 months of the
time since that contract, hath been forhnrn for
want of payment; which 20 montha proportion,
if it had been served in, there would have been
in store at this present above 260 lasts of
Powder, besides 60 lasts of Salt-Petre. a hich
would have made 80 lasts of Powder more :
but, by the want of due payment, not only the
store is unfurnislu?d of so considerable a pro-

Iiortion, but his majesty, it is conceived fuilher,
lath lost the benelit of 2d. in every lb. of 80
lasts, which hath been sold to the subject,
amounting to 4,050/. or thereabouts. — And
wiiereas it was intimated, that the Lord Trea-
surer lnth made other payments, less importing
the public, to the said Office of Ordnance lor
old arrears ; which have a depend* ncy upon
another point referred to the suh-coiumitti t-s,
touching the lands and debts of sir Roger Dul-
lisou : It appears that 28 July 1621, which was
about 2 months before the earl of Middlesex
became treasurer, he made an agreement with
tlia officers of the Ordnance for buying their

extent and interest in the land* of sir Roger
Dallisou and\ir Thomas Mounson, which they
had by assignment from his maiesty for a debt
of 13,062/. and thereby lib lordship did agree,
so soon as conveniently he might, to do bis btst
endea\our to procure from bis majesty a cer-
tain assignment and order for the payment of
the sum of 8,0001. to the use of* the servants and
creditors of the office of Ordnance, before tat
last day of Nov. next, for and towards the pay-
ment and clearing of all such sums of money,
as, by the pay books of the said office, should
appear to be due unto them, over and above
the said 13,062/. aud his lordship was, before
the same last of Nov. to pay them 1,062/. and,
at the Annunciation, in the year 1623, 600/.
and afterwards, 500/. half-yearly, till the
13,062/. were paid : but his lordship before the
prefixed last of Nov. becoming Lord Treasurer!
did not procure any such order or assignment
from his majesty ; but, by warrant of the fine*
mentioned dormant privy-seal of 6 Jac. did, io
the first Michaelmas term after he became
treasurer, and the two terms of Easter aad
Michaelmas following, (being all within a little
more than a year after his bf coming treasurer) '
pay to them 9,1M1/. of arrears due to the office;
and hath, at other times since, paid to them
other sums; which make up the foimer pay-
meat of 19,034/. St. llo*. whereof was paai
since the beginning of this parliament 2,480/.
1 is. Qd. And toucliing the payment, which, by
the aforesaid agreement, his lordship was to
make unto them of his own money, it appcaretb
that, upon a second payment, those payments
due fiom him were discharged ; and, in lira
thereof, his lordship assigned to them his part
iu the petty-farms of the Wines and Currants;
which they estimated to be worth for the first
two years 1,000/. per ann. and for 7 years after
1,100/. per ann. and odd pounds. It also ap-
peared), that about the same time uheo be
made the said agreement with the officers, be
bargained with sirTho. Mounson for his estate
in Dullison's lands; for which he agreed to give
him f;,C00/. in money, the making of sis
baronets, and some fit suit from bis tnajfstv
when sir Thomas could find it. This 3,0007.
was duly paid by his lordship ; and then it was
agreed tliat the baronets were not to proceed,
but, in lieu thereof, his lordship gave way to a
suit, which sir '1 liomas made to his majesty, fur
the benefit of compounding with the copy-
holders of Wakefield, for reducing their fiues to
a certainty ; which his lordship did estimate at
2,000/. and promised him further recom pence;
yet sir 1 ho. Mounson affirms, He had neither
benefit thereby, nor further recommence —In
this bargain, nevertheless, there are some thine*
favourable tor the LordTreasurer,especiafly t*o.
1st, That, by this bargain, his majesty is fired
from all future demands from the officers of the
Ordnance, concerning the debt of 13,061/.
owing by Dalli.ton ; which his majesty upon
the assigning those extents, had covenanted to
satisfy, in case the incumbrances shouM hinder
them of satisfaction ; aud this appeafctb It

1189] STATE TRIALS, 22 James I. l62i.~o/ik Lard Trttmtrcr Mifflacx. [1190

be true. 2ndly, tome intimation hath been,
tliat this bargain wri no bargain of advan-
tage, but of loss to the Lord Treasurer ; and
therefore not probable tlmt he should have
undertaken, but for his majesty's service, nut)
the good of the office. And touching this point,
it appears, by the good testimony of sir Tho.
Dallison, that, before the troubles of bis father,
the lands and leases being of about CO years to
come, bought by the Lord Treasurer, were rented
at 1,500/. per ann. or thereabouts ; whereof the
lease-lands are about 300/. per ann. : and
that, besides the recompence given to the
officers of ordnance and sir Thomas Mounson,
there is allowed to him and his mother, for
clearing their interests, 200/. per ann. for their
lives: hut sir Arthur Ingram oflereth to lett
die whole, for 40 or 50 years, or any other
-reasonable time, at J, 100/. per ann. And it ap-
pears, by the testimony of him, and Mr. Mayle,
that the lands were incumbered with an an-
nuity of 200/. per ann. to Mr. Beddingfield for
life; for which, and the arrears, about 1,200/.
hath been given, bv way of computation ; and
with 140/. to Mr. Smith for life, for which, and
the arrears hath been given, by way of com posi-
tion, about the value of 800/. and with an assur-
ance, on the part of sir R. Smith and sir J. Da-
ve v, for which is to be given 3.000/. besides many
other incumbrances not yet brought in. But
Che certainty thereof appears not, nor that any
of them, of any considerable value, are prece-
dent to sir Roger Dallison*s becoming officer."

This report being read, the Lord Treasurer
pot the house in mind of the imputation laid
on him ' by sir Robert Pye, some time since,
touching the extent of sir Roger Dallison*s
lands; and that therein they had desired wit-
nesses to be sworn mid examined, and he hoped
be bad fully satisfied their lordships in that
cause. But, as for any other matter relating
to the Ordnance, Munitions, &c, they never
came into his thoughts, as yet, what answer to
make; wherefore he desired he might have a
copy thereof, in writing, with liberty to exa-
mine his witnesses, and he would answer the
tame fully in writing. He also desired that
liis actions might not be examined by pieces,
but totally and together; and then ha doubted'
not but that his care, touching the store for
munitions, ore. would appear to be such that
their lordships will clear his honour therein.
This being said, the Lord Treasurer left the
house whiht the matter of the report was in
debate. After some time spent therein, it was
agreed, That another committee should be ap-
pointed to draw up the litads of a charge
against the Lord Treasurer, out of a brief or the
last report, and examinations taken by the
former committee.

April 15. A Message was brought from the
commons to this effect; " That whereas they
had received divers and sundry Complaints
against a member of that house, which are of
a high and grievous nature, they desire a Con-
ference thereon to impart the same to their
lordships. This was agreed to by the lords.

The Lord Keeper reported the said Confer-
ence held the day before, between the two
houses, in this manner: At this conference,

Sir Edward Coke, on the behalf of the com-
mons, shewed, " That in their inquisition the
commons had met with, what they scarce ever
found before, many great exorbitances and hei
nous offences, against a member of this house,
the earl of Middlesex, the Lord Treasurer ; and
they found him guilty after a strange manner ;
for, in all their bouse, not one man said " No,
but concluded against him nem. con.n — Sir
Edward said further, "The house had appointed
him to present three Enormities to their lord-
ships, much against his mind : others being far
more sufficient, as well in regard of bis great
years as of other accidents; yet, he said, he
would flo it truly, plainly and shortly. There
were two great offences in general, which they
had distributed into two parts ; one of which
should be represented by him, and the other by
his colleague. That which he should speak to
was to consist of two charges. The 1st, gro*s
and sordid bribery. The 2nd, for procuring
the good orders of the court of wards to-be al-
tered ; for that tKis wus done by his principal
procurement, to the deceit of the king, oppres-
sion of the subject, and the enriching of his
own sen-ants. He would begin with present-
ing to their lordships the bribery. Here he •
craved favour if he should seem long in touch-
ing some circumstances ; for circumstances to
things, he said, were like shadows to pictures,
to set them out in fuller representations ; but
herein be promised to observe tcricm temporit.

The first Charge against the Lord Treasurer
tor Bribery, opened by sir Edward Coke.

" By the Lord Treasurer's privity (for it con-
cerned bis skill properly which was merchandise)
a lease of the subsidy and imposts of the French
wines, was lett to tlie fanners of the petty
farm, 17 Jac. at 44,000/. yearly rent, and for
50,000/. fine ; with a covenant from the king
that no more iu«post sliould be laid during
their lease : because that tliey knew that the
impost would overthrow their trade. Yet the
farmers were not content with tlus covenant
for their money and their trade, (for money is
their plow, and trade their life) tliey desire the
addition of the king's word for this covenant.
Accordingly they bad access to the king, and
the covenant was confirmed and repeated by
him, verbo regio, in the presence of the lord
treasurer. Then they thought tl>emselves in
lutoy and that they did m portu navigarc, free
from all storms and tempests. But behold,
anno 16? 1, the first thing my lord did in his
office, wns the laying of an extreme impost of
3/, per ton upon the French wines, which the
king, by reason of his covenant, could not,
and, bv reason of his word, would not surely
do. 'I his imposition was against justice, the
covenant, and the honour of the king. The
king, surely, had he been rightly informed,
would never have done it. Upon this the trade
sunk, and tbey became suitors to bis lordship

1191] STATE TRIALS, 22 James I. 1624.— Proceedings on ike Impcackmeki [119*

3. He said be never had any warrant to enter
the same in the petty farm ; yet afterwards,
he avowed he had : and this is the third falsity.
— Here sir Edward observed, That Jacob was
my lord's necessary creature and petty chap-
man, and had a son that was his secretary ; and
because he was a Jacob, that is a supplaiiter,
he desired their lordships to take good care of
him. About the beginning of this parliament
my lord sent for this Jacob; asked him if he
had entered this money in the petty farm? he
said yea. Then said my lord, go about it pre-
sently, and see that the cocquets, and all things
else, be suppressed in the petty farms, and
that this money be removed to the great farm;
for I would have all hid and suppressed.—
Here sir Edward observed, That sordid bribery
is like Adam, and would fain get some fig
leaves, if it could tell but where to gather them.

Upon the delivery of this Charge (as was
desired by his friends) to the Lord Treasurer,
they of the commons expected an 'answer of
some rare wit : for so this nobleman was re-
puted in that hou*e : but his lordship deceived
their expectation ; for he declared it was nt-
terly, in every point, he would not say false,
but surely untrue. Four things he denied as
he was a christian; and these were all directly
proved and made good against him. And so
much was delivered against the first bribe.—
The second bribe was of a strange strain: and
both these bribes were received by him in the
quality of a Treasurer. The farmers of the
great Customs were to renew their farms, and
put in security of 48,000/. rent, July 29, 16S&
Here sir Edward said he would not enlarge
himself; for the business lay in u narrow room.
The bribe is the point. My lord liked the
sureties well ; but some of them fell ofT, and
he would not accept of the rest ; and 7,500/. of
the rent was reserved for a year and a quarter.
After delay of their lease, and 500/. in gold
paid unto him by the hands of Jacob, then
the security formerly rejected was now ac-
cepted : which act of his lordship the knight
confuted by this syllogism. The sureties were
sufficient, or insufficient: if sufficient, the bribe
was too much, and the farmers oppressed; if
insufficient, the bribe was too little, and the
king was cozened. The second bribe was
proved by Wolstenholme, Gar ro way, Williams
and, if you please, Abraham Jacob ; and so
much of these two bribes taken in the capacity
of a Treasurer.

" Now he comes to the Court of Wards, and
shewed, That the Lord Treasurer's offences here-
in are of a n£e strain. First, the knight
noted, by way of preface. That htmo$t the ho-
nour, must be given to him that deserved it
All the good artifice begun under Treasurer Sa-
lisbury. Then were articles invented that
helped the king to all his revenues, and tied
the officers to their own fees and places. The
king's revenues prospered well then : and these
articles, by the advice of the judges, were con-
finned under the great seal. — When this last
lord came to be master of that court, (for now,

for relief, for 10 months together ; but with no
success. In Michaelmas, 16*22, they petitioned
his lordship that the trade was overburdened,
and themselves quite undone, it is a rule,
that a commodity overburdened enricheth
not the king, but quite destroyed* the trade ;
but hereof tht-y have no success. — Then they
prefer a bill of right against the king in the
exchequer, because of the breach of covenant ;
but to this they could obtain no answer in
Michaelmas term. The king's attorney knew
well enough of the bill, but could not for his
heait device an answer for it. — In December
22, 1622, the term is out, they arc out of their
money, and (he trade is gone. They appeal,
therefore to the fountain of justice, the king's
majesty. The king is very gracious to them,
and said, God forbid that any man, should lose
by him. He knew nothing of this. It was the
Lord Treasurer's act and device. And so his
majesty allowed them a deduction of 9,500/.
to be made to them in 9 years time. Well,
verba sunt h*c ; these were but good and graci-
ous words, but filled not their purses: they
must have a warrant from the Lord Treasurer
to put this favour of the king's into a public
act ; and this they could not obtain from De-
cember to the end of Juno. The men under-
stand themselves very well, and look about
them how this stay comes : one of them tells
another, the business slicks, my lord looks for
somewhat: and the man was in the right, for
so the scq tel proved. A 500/. bribe was paid
to Jacob for my lord's use, and straightway all
was well ; the warrant went current, and all
was passing well. — One thing remarkable :
This was taken, out of the petty farms, set
down in tlu-ir monthly and yearly books, and
called a gratuity speciosaque nom'uia culpt'.
Some great space after this, there was a voice
of a parliament (Oh ! said sir Edward, parlia-
ments work wonderful things.) Then the Lord
Treasurer began to cast a circle, and fall to his
conj uring. He calls upon Jacob and commands
him to transfer it to the gre.it farm. Here was
observed, that sup press io veri, is, in law, an
argument of guilt. Here sir Edward also ob-
served in a parenthesis, That is a blessed thine of
those that love parliaments ; and that surely
this lord, of all others, loved them not ; because
he can himself mt«> dark mist-, when he should
meet them; « ncscio quid peccati port at ista
' piirgutio.' This argues much guiltiness. — Then
he nominated his witnesses: which he said
were without exception. This bribe is proved
by Hide, Daw s, Bishop, and by Jucon ; the
last is a witness with a uituess. For Jacob
blanched this bribe as well as he could, and
was taken in three notorious falsities. 1. Being
charged, that the money was delivered to him
by Hide, he vowed he had never received it;
yet, being confronted with Hide, he confessed
it : there was one. 2. He pretended he had
received the money, hut gave his bond for it.
Hide atiiiming to his luce, the bond was for
other money, and no bond at all for this ; then
lie likewise confessed this: there were two.

I19S] STATE TRIALS, 22 James L I62K— o/M* Lord Treasurer Middlesex. [1194

saith the k sight, he is not charged as a lord,
but a master) he complained he IihcI not elbow-
room for those articles ; he was too much
bound by them : (and bound he was indeed)
and therefore he projects new articles ; and
these new articles are charged with high ex-
tortion ; for in them are raised double fees ;
one fee the surveyor formerly hud, and still
retains justly, another parallel fee to this my
lord hath raised unjustly and oppressingly. For
extortion is a grievous and consuming enor-
mity in a common wealth. It was the greatest
eril the high God could foresee would betid the
enemies of God. * Let the extortioner con-
sume what he hath, and the stranger devour
his labour/ Psulm cix. v. 10. — In these Arti-
cles his lordship created a new officer, a secre-
tary. The chief proceedings there go hy way
of petition. In the former articles these. peti-
tions were received by the court, and entered
by the clerk without any fte, and so were to
be found on record ; hut, in ,the new articles,
this new officer is to receive these petitions,
and may, for any rule to the contrary, suppress
them ; and for his fee he taketh what he pleas-
eth ; and it is proved he hath taken 10/. 20/.
4/. 5/. three dMies of silver, and the like: he
is altogether unlimited, unless, peradventure,
bis oath doth limit him. — Another Charge in
this Courtis thisAbuse,viz. The Lord Treasurer's
place requires a wliole man, and so doth the
mastership of the Court of Wards ; whereupon
his lordship was fain (as unable to wield those
two great places) to invent a new device, a
stamp even with his own name, Middlesex.
Now this hand moves and guides the seal of the
court, and therefore, being turned by the band
of a young secretary, may produce strange con-
sequences. Never any king did suffer a sub-
ject to use a Stamp. Old lord Burleigh had a
Stamp, because of his gout, hut never suffered
it to be used but in his own presence. Henry
8, had also a Stamp ; but, suffering it to be
employed by another, an act of parliament was
overthrown thereby. Sir Edward said, he would
conclude with one example : if a ward be not
found within one year, he is reputed con-
cealed, and so falls within the dispose of the
master of the Court of Wards: now, by the
secretary's keeping of this Stamp and Petitions,
be may so carry the matter, that any ward
may prove concealed: and that is no remote
possibility. He brought this instance, & pout
ad este. My lord's secretary hath put to, and
used this stamp for, the deferring of an office
for half a year ; and it is possible it may be
done for a whole year. The knight said he
never knew any man before trust a stamp, iu
the hand of another man, to command the
king's revenue. He concluded this point with
this observation, That my lord was a man
raised very high, and very lately, and for ex-
pectation of service : that the king had been
very beneficial to him ; and for him to be so
supine in the king's revenue, snd so vigilant in
his own, was the highest ingratitude. ' £t si
• iagratum dixeris, omnia dixistL' — Sir Edward

said, That all this he 6p»ke by command ; and
so he prayed their lord*hip* to weigh it well
with due consideration, miii to give judgment
according to the demerits of the cause."

Sir Edwin Sandys proceeded to this effect.
" Tiie Commons had commanded him (mide*
si rous of any such employment) to second this
Charge to their lordships : Tint he was un de-
sirous thereof, fur he had rather defend the
innocent than discover the culpable : yet he
was the son of obedience, and must perform
what, hy that house, he had received in com-
mand. To decypher out this great lord, upon
whom the Charge lay, he would give of hiin
this character to your lordships. * Nescia
* mens hominum est, catique igu.ua futuri,
' et servure moduiu rebus sublata, >ecundis.'—
The want of measure and moderation most
men complain of in this great per>onsij;e. That
he would make his entrance with two protesta-
tions ; which (as you know) are exclusions, not
intended conclusions. His first Protestation,
That in this crimination against new impositions,
and impositions upon impositions, the Com-
mons intended not to question the power of
imposing claimed hy the king's prerogative.
This they touch not upon now ; they continue
only their claim, and when they shall have
occasion to dispute it, they will do it with all
due regard to his majesty's state and revenue. —
For this time1, he desired the word Imposition
might be for bom, and the word Oppression
taken up in lieu thereof ; yet with a reference
to the Lord Treasurer only, hut in no* means to
the king. The second Protestation, That they
intend to lay none, no not the least aspersion
upon the council table, or any one member
thereof, the Lord Treasurer only excepted. The
Commons remain fully satisfied that he was the
first propound er. These protestations premised,
he branched the oppressions into three natures,
used in the Wines, Sugars, and Grocery-
Wares. And he promised to use this method
to discover, first, some general matters, then
fall to Particulars. — The Generals are two ; 1.
The Commons conceive, that my Lord Treasurer
cannot be ignorant, that in the lay of the first
Imposition, in the time of the earl of Salisbury,
it was promised, That his majesty would never
lay any more imposition upon commodities,
without the consent of tne people. 2. Thai
my Lord Treasurer knew well that, in that as-
sembly of parliament complaint win* made in the
lower house, that the overburthenin*! of trade
was the destroying it ; and that he was himself
employed by the house to the king to negotiate
for redress therein ; and he promised there,
that he would make it his master-work. ' Quid
' ditmunt tanto foret hie promistor.' The issue
of all was this, for his lordship to devise new
burtliens. These were the two generals, from
these the knight descended to particulars, and
began with the Wines. He put their lordships in
remembrance, that the merchants liad the king's
covenant under seal, and promise by his royal
word, to lay no further impositions : They had
reason to desire it, for they paid a great fine

1 195] STATE TRIALS, 22 Jambs I. 1 62\.— Proceedings on tl* Impeachment [1196

and rent for the farm, which jour lordships
knew best ; yet for all this, 19 Jan. 19 Jac.
tliere issued forth a privy seal of imposing Si.
per tun on the French Wines : a grievous im-
position in the matter, yet worse in the man-
ner : for if it had been just, yet, in equity,
it should have been laid before the voyage un-
dertaken, and the vintage made ; then it had
been known, and, if known, the merchants had
stay'd at home, deserted and given up trading.
But this imposition was not laid till 2700 Tun
of Wine were arriv'd in the Thames ; and yet
the Lord Treasurer gave command, that no
entry thereof be made in the custom-house
until security was taken to pay this intolerable
imposition. — He left your lordships there to
consider these circumstances. 1. Ships all
laden with this perishing commodity. 2. Great
and excessive leaking, by being upon the river,
and abuse in the passage. S. SO shillings per
tun formerly imposed by the Rochelers. 4. 20*.
per tun laid by the merchants, for their several
Apparel taken away by the Rocheloys. 5.
This 3/. per tun to fill up the measure of their
afflictions. — Yet, instead of compassion in this
extremity, such as refused to pay, were crsscd
at the double the imposts ; others, who could
not pot in bonds, after asperity of language
and petitioning to the king, were committed to
pursuivants ; yet the king's privy-council used
the merchants honourably ; for they sent for
the vintners, and, to help the merchants, they
raised the wine a penny in a quart. — Notwith- ,
standing this the merchants fell into the hands ;
of customers, who used them rigorously, and
they lost great part of their principal : first,
they paid half of this new imposition in hand,
and gave security to 'pay the other half; after-
wards, the payment was divided into 3 parts,
and secured by the merchants accordingly.
On the 20th of Aug. following, another pnvy-
seal was issued to determine the former ; yet
40*. only of this imposition was taken off there-
by, and 20s. laid on the French Wines partial-
lv and without limitation ; viz. 205. the tun for
London, and ISf. 4d. for the out-ports, where*
of the Londoner complained ; and it was in-
serted in the privy-seal, to be at the bumble :
and voluntary assent of the merchants ; which
is absolutely de ny'd, for they only consented to
pay 20t. the tun, until the remainder of the
former imposition, so secured as aforesaid,
were paid, and no longer ; yet they were
haunted by pursuivants til! they had paid : and
they complain they are undone, unless their
bonds be delivered up. They further complain,
That they do pay for their trade cent, ner
cent, and shewed the particulars, viz. One
merchant had paid 800/. to the king for his
part in a short time, and now unable to pay

any more. Here the knight said, That he

would willingly suppress what follows, for acer-
bity of speech is no breeder of good blood ; but
the Commons had commanded him to speak
it, and to declare further, That the merchants
compared their sufferings under these imposi-
tions, to the sufferings of the old Israelites in

Egypt, when they were commanded to make
brick with less straw ; and generally confess,
that they would drive twice as much trade, if
their trade were not overbartbtned. Here-
upon they thought they had sufficient ground
to complain ; this being dishonourable to the
king and oppressive to the people, the king's
promise, word, and covenant being violated ;
these impositions, double the value, being
grievous to the subject and fearful to posterity;
for besides the old imposition, by statute,
upon Wines, there are three more upon one
another, < et quis exit modus/ of feeding upon
trade."

Here ended the Complaint touching the Da-
position on Wines.

Then sir Edwin proceeded to the Complaint
of the lease of §ugnrs procured by the Lord-
Treasurer, viz. " That whereas George Hetriot
held the Farm of Sugars, upon a rent of 10,000
marks per ann. the Lord-Treasurer procure!
him to surrender that lea«e, and obtained a
new lease thereof unto two of Lis lordships ser-
vants to his own use, nt 2000/. per anu. lor the
same. What merits, had his lordship in the
great extreme want of mouey, as to draw from
his majesty so great a reward as 4000/. per
ann. for 21 years? but the Commons' Com-
plaint herein is of a higher nature. That the
king having granted, that the wercliants im-
porting any merchandize, and paying the da-
ties for the same, if they export the same
within 13 months, their imposition is restored:
This is observed in all other merchandizes, save
that of Sugars. The reason is plain, if year
lordships know who is the fanner of it. TV
Commons further complained, That the Lord-
Treasurer had turned the Composition for Gro-
cery into an imposition ; which his lordship
did, without any warrant, whereby he usurped
regal authority. That the city of London had
yielded to a Composition for Grocery, but the
qnt-ports refused, and especially the city of
Bristol ; and that in the Lord-Treasurer Salis-
bury's time, 11 Jac. that city had a decree in
the exchequer, that they should be freed from
any such Composition, upon condition to yield
to purveyance in kind, when the king or queen
comes within 20 miles of their city; which
purveyance cost them 800/. * hen the qoeeat
majesty was there. Ncvertlieless the Lord-
Treasurer had directed his warrant to levy »
composition upon the merchants of that city
and the other out-ports, against their mm,
with commandment to stay the landing of their
goods until it be paid. And this, he said, was
the substance of their crying Complaint ; what
more can they say, but* with wise king Sola-
mon, • If thou seest the oppression of the
poor, and violent perverting of jndpnent and
justice in a province, marvel not at it ; for bf
that is higher than the higliest i*gardeth,aBd
there be higher than he. Eccl. v. 8.' wir
Complaint is of an highlord,theIjord-Treasarer«
bat your lordships are higher than be; the
kinc higher; and God higher than all ; whssf
justice your lordships execute. This jnwa*

1197] STATE TRIALS, 22 James L 1G21 — of the Lord Treasurer Middle**. [1199

they, humbly and instantly, demand of your
lefdahips against these oppression*."

Tail Report being ended, the lords took in-
to their consideration huw to proceed in the
business, and then referred tbe Examination
thereof to tbe sub-committee on Munitions,
&c, adding to tlie said committee tbe Lord-
Keeper, the Lord-Steward, the bishop of Bath
and Well?, the lords Wentworth and Spencer :
and their lordships may divide themselves into
several committees, if they please, for expedit-
ing this business ; aud may send fur any wit-
nesses to be sworn here in court, that may
conduce to the Examination thereof.

April 24. The archbishop of Canterbury re-
ported to tbe house, That the Committee ap-
pointed to examiue into the Complaint against
the Lord Treasurer, had met, and examined
divers witnesses, who were sworn here in the
house, and had made a collection of Part of
the said Charge ; which Mr. Attorney read in
form following :—

" Part of the Charge against tbe Lord

Treasurer.

« I. The farmers of the Petty Farms of
Wines and Currants, having sustained great
lost in their farm, by an impost of 3/. per tun
of Wines newly set, were long and instant
suitors to the Lord Treasurer for relief ; but
finding none, exhibited their bill into the ex-
chequer, and afterwards a petition to the king,
for reparation of their loss; to which having
received a gracious answer from his majesty,
the Lord Treasurer agreed with them upon u re-
compence of 9,500/. to be defalked by 1,000/.
per ann. out of their rent ; yet, after this ngree-
raent made, he protracted their warrant nhout
six months, and, in the end, took of them
• bribe of 500/. for their dispatch, which wns
set upon the account of the Petty Furms : but
since the summons of the parliament the same
wnft, by his lords! tip's direction, posted to the
account of the Great Farms. — 1 J. The Lnrd-
Treasurer being presented with a tun of Wine,
by the farmer* of the Petty Customs, was not
contented therewith, but exacted money of
them albO ; who were thereupon drawn to give
him 100/.— III. The farmers of the Great
Farm having, by their lease, covenanted to
give security fur the payment of their rent,
divided their farm into S« parts, appointing
erery partner to give security of 1,500/. for
every part. Five of the partners relinquishing
their port*, the security fell short 7,300/.
Whereupon the 4 paten »ees, resuming those
fivw parties to themselves, teudt-red their own
security ; which his lordship agreed to accept,
yet protracted about 3 quarters of a year, un-
til they gave him 500/. for his dispatch. And
whereas his lordship pretends, by his Answer
to the boose of commons, that lie hnd this 500/.
and the other 500/. first mentioned in one en-
tire ism, for four 3*2 paits of that Great Farm,
it appeareth his lordship had no parts at all in
that farm.— IV. George Herriot having the
of Svgart upon the rent of 1000 murks

per min. the Lord Treasurer procured Herriot to
surrender that lease ; and, to effect the same,
gives order for the payment of 14,865/. due to
Herriut for jewels ; all which was paid l»etween
the 15th Dec. 1621, and I Oth Jan. following.
The lease was no sooner surrendered, but the
said treasurer procures a lease to two of his
servants, by"indenture, dated January 13, 1621,
for 21 years, at 2,000/. rent per ann. ; which
rent his lordship paid so slowly, that there hav-
ing only 4,000/. thereof grown due since the
lease, 3,000/. theieof was paid on and since the
31st of December lust : and whereas the mer-
chants, importing any merchandize, and paying
the duties, are freed to export within the year,
without any new payments; that custom was
observed in all other farms, but denied in this,
for the said Lord Treasurer's benefit. — V. The
city of London having yielded to a Composition
for Grocery Ware, which the out-ports, parti-
cularly Bristol, refused ; upon long debate and
advisement, in the lime of the Lord Treasurer
Salisbury, it was resolved they should not be
pressed thereto : nevertheless, the Lord Treasu-
rer hutli given warrant' to levy tlr.it Composi-
tion upon the merchants of the out-ports against
their wills, or else to stay the landing of their
goods ; which hath been put in execution ac-
cordingly.— VI. In December 1618,h;s majesty,
upon great deliberation and advisement, did
set forth instructions, very fitting and necessary
for the well ordering of the Court of Words ;
the Lord Treasurer becoming muster of thr
wards : and, for his own private gains, aiming
at an u Iteration of those instructions, first pro-
cured a reference to divers of the council to
consider thereof, yet after waved that reference;
and, by his own power and greatness with the
oflicers o( the court, (though much against their
wills) and by misinformation ot' his majesty,
(though much to the disadvantage of the king
and subject) in the year 1622, procures new in-
structions; thereby taking the petitions from
the clerl; of the court, and appropriating tliem
to hitn«elf and his secretary, "ho takes great
rewards of the subject for procuring answers to
tbe snme; and, by colour of those new instruc-
tions, he doubles fees of continuance of liveries;
and, having concealed the wardships to himself,
he may easily make wardships concealed by the
course of the new instruction*. — Also he hath
made u Stamp, and delivered the same to his
secretary to he u?ed; thereby, unlawfully, put-
ting into the hands of his secretary the greatest
part of the power and trust appertaining to the
office of master of the wards. This the secre-
tary hath used, stamping therewith, in the ab-
sence of the master, tenders, continuances, war-
rants to the great seal, grants of wardships and
leases, indentures of liveries, &c. Aud whereat,
by a privy seal of G Jacohi, there was an allow-
ance settled for the ordinary of the Office of
Ordnance; which, being put out of order in the
time of sir Roger Dallison, in 1617, the lords
upon reference from his majesty, set, under their
hands, a proportion, both for present supply
aud future upholding of that office*, bat hi-

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1*01] STATE TRIALS, 22 James I. \tel.—qf the Lord Treasurer Middlesex. [1902

your lordships' directions, in Answer to his Pe-
tition humbly presented yesterday, he had ap-
pointed the witne^es ti.ere named to attend
the most honourable house this afternoon, to
be sworn to answer such interrogatories as, on
his behalf, shall he exhibited. — But, whereas
your lordships did further direct that the said
interrogatories should he presented this day :
he most humbly desires your lordships to be
truly informed, that having neglected no time
since he received his Charge to prepare his
Answer, he finds the matter* objected so many
and of such divers natures, that he cannot yet,
possibly, furnish the same, in such perfect and
particular maimer, as he ought and desires to
io for your lordships' best satisfaction, and the
clearing the matters laid to his Charge in all
points. And therefore, his Answer being not
yet ready, upon which all the interrogatories
must properly be grounded, and without which
your lordships' judgments of the pertinencies
of the interrogatories cannot be rightly in loan-
ed, he humbiy boeecheth your lordships to
respite them, and as soon as his Answer is
finished he will forward them with all po*«ible
speed. And, he doth, once again, humbly pro-

Kound to the consideration of this most lion.
ouse (because therein your lordships have not
been pleased to give Answer unco his former
Petition) whether your lordships will not, in
your noble justice, permit him to have copies
of the Depositions taken and to be taken in
this cause, on both sides, without which he
shall be utterly disabled to make that just de-
fence, which a cause of that importance to
him, doth necessarily require. — Middlesex.'7
The lords, upon reading this Petition, did
nil agree, " That it is against the order of this
court, as well as of all other courts, for a de-
linquent to have Copies of the Examinations
before he answers." And, as to the rest of
the Petition, the following Answer was screed
on to it; "The lords expected to he itbeyed
and not to have been directed ; and hold fur a
disrespect unto the house, That witnesses
should be produced and sworn, and no inter-
rogatories sent whereon to examine them as
was required. The Copies of Depositions al-
ready taken, for Proof of the Charge, was nut
directly prayed in the former Petition, therefore
it was not precisely answered ; but it is so un-
fit a desire that the 1 irds think the petitioner
ill-advised to make such a request. And, ac-
cording to the former order ot the hou-e, the
lords expect the Lord Treasurer's appearance
to-morrow morning, to hear such Answers as
be shall make."

April 29th. Another Petition from the Lord
Treasurer was presented to the house, and read
in hd'C verba :

" Most humbly shewing, That besides the
weighty cares of mind which now do lie upon
him, by lire Charge he hath received from that
most honourable house, he is fallen into such
an indisposition of body, us he is once more en-
forced to beseech vour lordships, in your noble
justice and favour, to grant huu a farther day
VOL. II.

for presenting his Answer and Interrogatories,
which fall out to be much longer than he him-
self expected. It being no small addition to his
sorrow* j», that in a cave so nearly concerning
him, he. cannot conceive by their lordships
former Answers to his former humble Petition,
that they purposed to allow him Copies of the
Depositions, w hereby, after his Answerdclivered
in writing, he shall prepare himself for his just
defence ngainst the hearing.-r-MiDi>'LF>i:x.

To back this Petition, ihe Prince moved
" That in respect of the Lord Treasurer's great
office, and sickness pretended by his lord* hip,
he might have v longer day given him, and
that dny to be absolute." On which the fol-
lowing Answer to the Petition was agreed on.
" That the lords, only in respect of the Lord
Treasurer's indisposition of health, are pleased
to respite his appearance this day ; but do ci -
join that on May 1, at 9 in the morning, if his
health so permit, he bring his Answer ; if not,
that then he send his Answer to his Charge in
writing, and all such Interrogatories as he
would have his witnesses examined upon. Like-
wise, the lords do peremptorily assign the 7th
of May next, for his appearance in person,
and for the nnal hearing and determining the
cause."

On the same day die Attorney General read
the following

Additional Articles to the Charge against the
Lord Treasurer.

" I. He undertook the office of the Ward-
rob^, in the 16th year v\' his majestv's reign,
and continued in the service of that place from
Michaelmas, anuo 16, to the same time, anno
11). This orHce he took upon him under pre-
tence of doing his majesty special service ; aud
for that purpose, obtained a certain assignment
o: 20,000/. per ann. or thereabouts, which was
d'jly paid unto him by way of imprest. Instead
of do. 114 service, he hath broupht that place
into disorder and confusion ; he hath not duly
served the warrants v»hich he should have
sen ed, nor. paid the workmen and creditors;
he hath neither kept orderly accounts, nor
yielded any ; but under colour of pretended
service of great importar.ee, hath procured
gifts and diseharjes 01 gieat sums of money,
uhii.h he received for the execution of that
place, and for the queen'* funeral. II. Whereas,
in the former Charge delivered to his lordship
it is mentioned that merchants, importing Su-
gars, have been denied to export the same with-
out paying new duties; it appears, upon further
consideration of that business, That the preju-
dice the merchants have sustained concerning
their Sugars, is, that they have been denied,
upon exportation of sugars, the import* paid
on importation ; which is contrary to the di-
rt etion given I y his majesty's letters patents 5
Sipt. Hjac."

Mav 1. The Lord Treasurer sent another

Petition to the I rd-, with ins Answer to his

Charge, and the Intel rogatories to lour parts of

the same; which beiug nad, were referred to a

4h

1203] STATE TRIALS, 22 James I. 1 621.— Proceedings on the Lnpeachmtni [1904

committee, who were to report to the house
what interrogatories they reject. The tenor of
the Petition was us follows :

'• The Lord Treasurer, with most humble
thanks, acknowledged the honourable favour
of this house, by their noble order made in this
house on Thursday last ; and doth most humbly
take hold of the liberty thereby grunted hini,
in respect of his indisposition, (which yet con-
linuetii) most humbly to present to your lord-
ships herewith nil his Answer, in writing, as
■well to the Charge he received the 24tn of
April, as to the Additions thereto which he
received the 29th of the same, together with
as many of his interrogatories for Examination
of Witnesses as lie could possibly make ready
by this time, which are full and perfect for
four of the Articles of his Charge ; most hum-
bly desiring Monday morning at the sitting of
the court for the bringing in the rest ; and that
your lordships will pardon the length of his
Answer; the variety and multiplicity of the
particulars necessarily requiring it, as well for
the readier informing of your lordships judg-
ment as for relief of his own weak memory,
whom as yet you have been pleased to appoint
to stand alone without counsel at the hearing :
lie doth withal humbly explain his meaning in
the former Petitions, which were not to desire
Copies ot' the Depositions before his Answer
were put in, and all Witnesses for and against
him fully examined : but when that shall he
done, he hopes it will stand with the honour
and justice of that most honourable house to
allow him Copies of the Depositions on both

Sides. M I DDL f.SF.X ,?'

The tenor of the Lord Treasurer's Answer
to his Charge followeth ;

" The humble An?»wer of the Earl of Mid-
dlesex, Lord Treasurer of England, to the
{>art of the Charge which was delivered
lim from the most honourable Court of
the higher House of Parliament, on Sa-
turday the 2-lth of April 16-24.

" To the 1st and 3rd Articles concerning the
two pretended Bribes of .5001. a- piece. His
Answer is that no surh several sums were
ever paid unto h;m, nor any money at all for
any of the causes mentioned in the said Charge ;
but he acknowledged) ilia', the VJth of June
last pas', he, by his servant, did receive at the
hands of Jacob, one entire sum of 1, 000/. in
consideration of his interest in tour iJ2 parts
of the (ire.it Faun, which he had formerly re-
served unto h>in*»clf, upon >t tiling the new lease
thereof; and for no other cause, us he hath
truly alii -dged in his Answer to the Commons :
an'', for better satisfaction of this most ho-
nourable l:ou-e therein, he hath hire set down
u true and particular I)* duration of the *t:tc
and carriage of that bus ne*s, as follow* th : —
He is verv well assured that as his etntral
course, in ail bargain* of (he like nature t'r
the king, hath been to look to his own duty
and the kin;.-'* service, as the husband of his
majesty'i estate; so iu this particular, touch-

ing the 9,500/. allowed to the Petty Fi
in recompence of their losses, he carried him-
self so carefully and strictly for .the kin?, as he
could no ways expect so much as thanks, much
less any gratuity or reward from them; for
though, at first, they demanded of his majesty a
very great sum, pretending, that the iutertup-
tion they complained of was 10,000/. disad-
vantage to them in their iirst year only ; yet
upon good reasous, shewed by the Lord Tota-
surer, on his majesty's hehalf,athcy were brouxat
to accept of 9,500/. whereof, though they ear-
neatly pressed to have present satisfaction,
yet he over-ruled them to take it in PJ years,
(which was not worth more than 5,000/. in
hand) and that, also, to be in full satisfaotiat
of all their demands, not for one year, hut for
the whole term of 9\ years ; so, as, in that par-
ticular, the Lord Treasurer was eo far from do-
ing them, favour, that ho thinks, they hare
maliccd him ever since, rather for holding
them so hard to it, than for any regard to the
king's service. Aud fox the Great Farm, the
said Treasurer saith, That the old farmers be-
coming suitors to renew their lease, profMuoa-
ed to leave the Silk-Farm upon his majesty's
hauds: and, withal, to have an abatement of
the rent they then paid for the Great Farm :
whereupon the Loid Treasurer, finding how
much that offer tended to his majesty silisfid van-
tage, desired tir A. Ingram, by himself aud his
friends, to gc-t a better oiler made to the kinp,
which was done accordingly ; and thereby h»
majesty's rent was not impaired (as at fir*i wa»
proposed) but increased 4,000/. per ann. ; mid
the Silk Fuiin licnt was also made good ; which
otherwise, to have been lett by itself, would
not have yielded the old rent by ;>, or 6,000/.
per ann. ; so that the bargain wu* better is
the king than the old faimeis lir>t offered U
9, or 10,000/. per aim. ; notwithstanding, it
was thought fit by his majesty that the old far-
mers, coining to the rate offered bv others
within 1,000/. per ann. should have the pre*
fereucc of the bargain. But withal, tl.e Laid
Treasurer, to gratify those, who, by the said
offers, had done the king service, by advancing
the rent a> aforesaid, did, at the instance of *if
A. Ingram, on hi- and tin. ir behalf, reserve cer-
tain parts of the said Farm, with tiu other inten-
tion but to dis>po*c the same among them ; and
then gave order for the lease to procetd to the
patentees, who were named, in trust, for them-
selves, and all the p-trtnrrs. And afterwards,
the said L'>rd Treasurer did dispute of the raid
pair?, reserved to the said *ir A. Ingram and
others, according to the first intention; 4 of*
which parts, the parties which had thein did
afterward*, at several time*, gi«e up totr.estud
Lord Treasurer, uml left tie same at in* d*-
p-.-.<»iug. Some mm. t lis after, sir Philip Carey,
who had one of the Lord Treasurer** purs, ana
some other* phiccd bv the farmers, upon some
mislike of run mucs of that farm, did also rc-
linqnMi and giie up their parts; upon occa-
sion whereof, the Lord Treasurer, being pat in
miud by sir A. Ingram of the said 4 parts,

1505] STATE TRIALS, 20 James I. I6«jt— qf the Lord Treasurer Middlesex. [1905*

winch were returned unto him by those to
whom he had former!* di-i>m«cd them : urid he-
irtg usked what he would do with them, did,
upon Jacob's licit coining to him, n.-k him, how
the farmers mean* to use hint for his four 32
pans of the farm? lie answered, Tint because
hh lordship had formerly signed a \\ arrant, for
the king's security ^ti' ail the J)2 part*, and said
nothing of those! parts, they thought his lord-
ship had waved them : but he would speak with
llle partners about ir, and then give him a full
•nswer. Within few days after, Juroh returned
to him, and very freely offered 1 ,000/. for his

Etfrts, according to the rate which, he said, they
ad lately given to Mr. Chancellor for his":
which the Lord Treasurer was contented to ac-
cept: and within -1 days after he told Mr.
Chancellor what bargain he had made with
the farmers, fur hi* interest in four 3*3 parts
of the Great Farm, viz. That he had sold them
to the Fanners for 1,000/. — This Agreement
being thus made with Jacob, and th'j 1,000/.
paid accordingly ; it fills out, by that which
was since discovered, Th.it he and his partners
which shared those 1 inns, pgrceJ together,
to ease themselves of that money, (which
should have been properly born* upon their own
private accounts,) by laying the same upon the
general accounts of the Great ami Petty Farms;
(themselves being farmers in both) a id there-
upon, the 1,000/. as is since discovered, was hy
them divided into two pans; the one half en-
tered upon the books of the Petty Farmers,
and the other upon the general account of the
Great Farm, as gratuities to the Lord Treasurer;
who little knew of their unjiiit proceedings,
both witli himself and their partners, until
about Christmas last ; when he had first inti-
mation of some such Charge laid upon the
Petty Farms, not hearing then that winch was
done upon the Great Farm*? :»ee iiint : here-
upon he presently suit fir Jacob, ;>nd was
much offended with him, th-»t ft: should s infer
any *uch unjmt thing to bt <! me; who, at first,
denied it; bat, the next day, confessed it,
and said, it w;is ill d.<nc: and said, he was
over-ruled in it ; and promised to set all
•traitihr nuain, according id the truth and rijiht
of the cassfc : which, the Lord 'treasurer under-
stand^, was done accordingly ; not by posting
the J><KJ/. from the I\ Uy Kami's Account to
the Great Farm%, out by d.- charging botii un-
just charges out of both accounts the paten-
tees returning hack the moacy which they had
taken otTtJip l'cfy Fanner, upon tin Lord Trea-
surer** jnst exception thereto; and :d-.o making
like restitution, of their own accord, L> their
partnt n in the < ireat I arm. w horn t hey had like-
wise wronged; wl.i r» off he I-ord Treasurer hcird
nothing till of late : »o, he !.->) is, the pivot's of
this c:- use will iu..ke it » vi«ie:itly a! pc.ir, that
■11 this ^ -an da! ha'Ji fdl.n m"?n him, by this
underhand working id the patentee.-* for their
own private gain ; hy u p. in. -fully chaij»in«: tl.«ir
partners in both (arms, to c:->e fhciuscl\e«,
without the Lord Tren-tni:r\ pn\ity <;r know-
ledge : and though the pau ntce«, tu mal e their

own tale good, have lately denied that the Lord
Treasurer had any part in the farm; yet it
will manifestly appear upon proof, by the
oaths of meu of good reckoning, that themselves
have acknowledged, that his lordship had re*
served part of that farm at his disposing. — For
the 100'. and the tun of wine, nliedL'ed, in the
2nd Article, to he received : the tuiih is this.
That Jacob hems w ith the Lord Trearurcr about
other business told him, That the Fanners of
the Petty Farms, had, or did intend, to pre-
sent him with a tun of wine, for a new year's
gift. The Lord Treasurer then answered him
merrily, That other Lord Treasurers had been
better' respected by those farmers, and that ho
would have none of their wine; and shortly
after, Bernard Hyde brought him 100/. for
a new year's gift only, and tor no other cause.
— To the 3rd Article, concerning Her riot's
Reckoning and the Sugar Fann, the 1-ord Trea-
surer makes this Answer, That in 10 JO, a least
was granted to Herriot; of the Impost upon
Sugars for three years, not at the rent of 10,000
marks per aim. as is allcd^cd in the Charge,
but at less hy 1000/. pur aim. viz. .*>tCGo7. VU.
4d. rent. Afterwards the 17th of Nov. l(WOf
in the time the lord Mundcviile was Treasurer,
Herriot obtained a privy -.mm I of assignment,
whereby he had power to pay himself out of
the Susiar Fann-llent, by way of retainer, a
debt of l.LOfj'J/. 16s. fmnerlv due to him, viz.
for his frcc-arrear in the exchequer J 87/. 10*.
and upon six privy-s« ids I'm* jew cU, formerly
bought of him, Vliwl. 0«. in which privy-seal
of assignment, there was one special clause,
That if the said three years rent would not
suffice to pay the whole debt, by rensm of de-
falcations which might fall out upon the fann,
the rest should be made good out of the txrhe*
quer ; and afterwards, in May and August lti'21,
in ll.e viscount .Mandeviile'- time, Her riot olw
rained two other privy-seais, lbrtwo other debts
due to him, amounting to l,o<j'»/. 15s. which,
being added to the former debts by pn\y-se;d,
makes up the «reut sum of 1*J»(m/. inciiioncd
in the Lord Treasurer's Charce.— And w htreas it
i« alledged, that this whole sum of 1 1, Kim/. was
paid to Herriot by the now L"rd Treasurer's or-
der within the space of '20 days : the truth is,
There was not one penny paid at all in money,
but Herriot being indebted to his uiHJesty
7,700/. upon account of the rents and profits of
the Susiar- Farm until Christum* lo-'l, iln"».uiie
was allowed in discharge of mi much of his
debt of UAUl'J. vi/. ."».o<i<;/. l."s. \<l. which he
had power to pay himself, by virme of tie said
pri\y-«tul of assignment ; and 'i.KS'j/. 6s. »«/.
wh'ch was done hv him upon his account be-
fore the lease of tlie Sin_ai-i':!aiii lujian. And
when ai he iniLbt, hv thv -::id iirh. v-»eal of as-
sitii )" nt, Imc paid hii'isi lithe oil.* r 7,06*6*.
wit 'in h-«.s i hat' l.'i month- : the Lord Treasurer
did, by I J err 'it's consent, transfer the same
to !■'• paid out i.f the Tobacco Farm, vi?.
<l,00o/. at Mh I..'- Im-'- 10*.' J , sii.il the rest at
Michaelmas 1*' ':'>. whiih was a longer time
r.nd inoiead\.M -Uiui u a^i^iucnt for the king

1207] STATE TRIALS, 22 James I. 1(32*.— Proceedings on the Impeachment [I'M

Bristol had formerly Yielded Co furnish his ma-
jesty's household with grocery in specie, upon
purveyance, at the king's coming into those
parts; nud, thereupon, had obtained an order

than the former was: so, although tin re u ere
several orders signed, at) if the money had \ een
paid immediately out of the exchequer; yet
that was done, of necessity, to enable the
striking tallys, for the teller* charge and dis-
charge, as the form of the exchequer reamed,
without issuing any mom y at all : so that it
will appear upon ucord, this Charge upon the
Lord Treasurer is wholly mistaken ; and that he
was so far from paying so much ready money
as he is chaiged with, that he paid no ready
money at all, hut by as?i*mnei:t ; which he
made at longer day?, than it was formerly set-
tled in his predecessor's time. And thereupon
Hcrriot, having his debt thus settled and paid
to his content, did surrender up his lease ;
which he had procured to no other end, but
to secure the payment of the debts owing to
him hy the king. Afterwards, it i* true, his
majesty granted a new lease of the Sugar-Farm
to the Lord Treasurer's use, at the rent of 2,000/.
per ami. ; in the granting whereof his majesty
was truly, informed of the state of the same, and
particularly made acquainted, That the said
Farm of Sugars might he improved to 0,000/.
per annum, though Ilerriot had it hut at
6,0667. 13s. \d. it being his majesty's pleasure,
out of his own grace and goutiness, to grant the
same, in form aforesaid, to Lie Lord Treasurer,
for bis many services, and for considerations*
best known to himself. — For the slow paying
his rent, it is true, that one of the 15,000/. was
paid three or four days after the rent-day, and
the other two half-years rents were forborne in
respect of some private disbursements of his
lordship's for the kinj;; upon hills of exchange
to the commissinum for Ireland ; and other
engagements for bis majesty; which his lordship
intended should be di: : h:ir»ed and cleared by
the s tid rent. — And, lastly, 'The liberty of tran-v-
porting Merchant's Sugar*, fonneily impoited,
remaineth now in the same estate and condi-
tion, without any alteration, since the Lord
Treasurer's lease, as it did at any time before ;
neither is there any such restraint or denial
main- by him, or under him, to the merchant's
prejudice or his own piolir, as is alledged in
the Charge. — To the 4th Article, touching
the Composition for Gioccry-\Vurcs in Bristol
and the out-ports; the Lord Treasurer saith,
Th tt complaint being made unto him on his
majesty's behalf, That the said Composition-
Money be in;; no le«-s due in the out-ports than
in the port of I.ondon, no certain course whs
ke'tk: I fur the rcreiung of it, or bringing it to
account for his majesty's use, so as little or no
beiuiit thereof came to the king: he then upon
thought lit to send a general warrant to the
out-ports, to authorize Jacob to take care of
that collection; nud receive such duties of that
nature, as had been formerly used to have been
paid ; to the end the whole collection theieof
nui:ht come in upon one u an's account; with
no intention to raise n new charge upon the
subject, hut only to settle the collections of the
king's duties in order : and, as soon us the >nid
Lord Treasurer had notice, That the citizens of

in the exchequer, to exempt them, from the
payment of the composition ; the Lord Trea-
surer did presently discharge the former warrant
sent thither before, and referred the merchants
(who acquainted them with it) to sir Simon
Harvey, one of the othcers of the Green-Cloth,
who certified his lordship, that he had agreed
with them to their good contentment. — To
the 5th Article,' concerning the busiuess of
the Court of Wards, the Lord Treasurer makes
tiiis humble Answer, That in Dec. 1618, hn
majesty did set forth instructions for the order-
ing of the Court of Wards ; which orders were
set forth by the procurement and solicitation of
some of the officers, without the privity of the
lord Wnllingford, then master, and some other
of the council of that court, and near about
the time of his lordship's leaving the place:
divers of which articles tended to the abridge-
ment of the anticnt authority and profits of
the master's place, and for the profit of othen
of the omcers of the court. — whereupon the
Lord Ti easurer, being made master, was an hum-
ble suitor to his majesty to restore him to th*
former rights of the place, by altering the said in-
structions in some points, not prejudicial to his
majesty's profits, nor grievous to his subjects;
upon which it pl6ased his majesty to refer
the same to some privy councilors, cs is
mentioned in the Charge : after which time,
and before any thing wiis done, upon the
humble motion of the Lord Treasurer, nil
majesty was pleased to direct, That the master
and omcers should first confer and ag-ee (if
they could) among themselves, and retort to
the referrees, if they agreed not : whereupon
the master and all the otfne;*, upon sundry
meetings and debating*, agreed among them-
selves tor the new Instructions, and thereupon
voluntarily subscribed their nana s. There was
no misinformation used to his majesty, neither are
the points contained in the new Instructions dis-
advantageous to the king or subjects more than
the former, and, in some points, of much mors
advantage both to the king and subject. Touch-
ing tl e taking Ptlition* from the Clerk of the
court; and appropriating them to himself and
the secretary, who is charged wth taking gre.it
rewards for procuring answers to the same, he
saith. Tlmt, until the s.rd Instructions of 1618*
all Petitions were delivered to the master;
which, bv the said Instructions of 16 iS, were (to
the great prejudice of th'» subject, and delay of
hi* majesty's service) delivered to the clerk oi
the court, who was to present it at the sitting
of the Council, which could he only in teim
time; whereas, by the former antieni course,
and hy the last Instructions, the Petition Ueing
delivered to the master, he only givetb order
for finding and returning an office, wluvh rottkC
also be entered with the clerk ; and, the offict
being returned, the grant is made by the master
and council, at the council table. By th*

1209] STATE TRIALS, 22 James I. \G2l.--of the Lord Treasurer Middlesex. [1210

course the suitor liatli expedition at all times,
and the master no profit nt all ; and the secre-
tary neither hath taken, nor exacted, any re-
ward of the subject for procuring Answers, to
the knowledge of him, the I>ord Treasurer.
Touching the doubling fees for Continuance of
Liveries, by the new Instruction*, he saith,
That, ever till the Instructions of 1618, the
suitor might continue his livery, either with the
master, or surveyor ; and the master's fees for
such continuance was ever 10*. The Instruc-
tions of 16 J 8 appropriated the Continuance
only to the surveyor, which was an encroach-
ment by the surveyor upon the master ; now
the new Instructions enjoin the Continuances
10 be with both, for which the master taktth
no other fee than 10s. which was the antient
fee for Continuances taken by all . masters
before him : and, for tenders, the master doth
now take but 5t. whereas the antient fee is 10*.
—By the Continuance before both houses,
men are rather foiced to sue out their liveries
to the benefit of the king, and good of such as
have cause to sue again* t them. Touching
the having of concealed Waidships, and, to
that point, that the master may easily make
wardships concealed by the course of the new
Instructions, the Lord Treasurer s.iith, That al-
though lie hath the disposing of concealed ward-
ships, yet the benefit of them is to the king's own
use ; and it is not in hi* power to make a con-
cealed wardship : for if the petition should be
suppressed, or not answered, yet it is no conceal-
ment, by the new Instructions, if any suit Le
made for it within a year a fur the death of the
tenant; neither is t he Lord Treasurer chnrged
to have done, or m> much us to ha\e attempted
any such act. — Touching the Stamp, which he
i* charged with having delivered to the secre-
tary, he doth humbly acknowledge the same ;
but, witbal, desireth your lordships to take

never saw it but in this parliament : and for
the book made up by the commissioners of the
navy, in 1020, for supply in« the Stores and fu-
ture upholding of the Oiiice of Ordnance,
(though, beiii«: die Inst of the three settlements
mentioned in the Articles, it might be sufficient
to suspend both the ioimcr) it was so far from
being an establishment to govern the (-nice by,
that ail the officers have, and still do oppose jr,
and protest against it to this day; so as there be-
ing only propositions without resolutions, and
no settled rule of establishment and direction,
why should the Lord Treasurer be bound to keep
it? or why the breach thereof Le made his
fault now, when it was broken and neglected
in his predecessor's time, who was then the
ouly proper officer to have put it in execution,
die now Lord Treasurer being but one of the
propounders of it. — Notwithstanding, he hum-
bly conceives, and hopes to prove clearly, that
there hath been no such wilful negligence as is
nlledged ; for though it be true, that the officers
of the Ordnance, always opposing that JJook of
the commissioners, would never sue out the two
warrants thereby required, the or.e of 13,640/.
i4s. 2</. for Supply of the Store?, nitd the other
of o,000/. per ami. for the Ordinary ; yet there
have been other privy seals of the same nature
sued out, whereupon hath been lasted to that
otiicc, since that book of the commissioners
was delivered, as follows, viz. for the supply of
the Stores, 1 i,09o7. 17. v. 6d. which sums want
not much of the commissioners, preparations,
considering that the ordinary quaiter-bnoks are
yet unpaid for a year and a quarter ; all which
argue no wilful negligence in the payments,
howsoever the officers have disposed of the
monies; nor any -great unfurnishing of the
stores, which, if they have kss proportion of
some siorcsof provisions than were set down
in the commissioners books, )ct thry have

into consideration, that the whole purpose ai.d j mo.e of other stores of provisions, which have
•cope of doing thereof was only for the present ' sim:e been thought more useful u»d more ue-

dispatch of suitors in ordinary matters or
course; and for such business as could not be
effected bv the Stump alone, without the assist-
ance or joining of other officers therewith,
either before or After putting the Stamp : and
the Lord Treasurer w:is rather induced to gi\c
way tliereto, because he hud understood that
the lord Burleigh, v. hen Lord Treasurer, made
use of the like ; and ibr that Stamps are in use
in other offices at present : yet, if the Lord Trea-
surer had ever conceived, or been informed,
that it hud been unlawful or unfit, he should
not have u«ed it : also he directly affirmed),

rc.-^ary. — As to what eon corn* neg:ecting the
supplies for Gun-powder, the Lord Treasurer
saith, * That the bargains with Kvelyn were
made in the lord Mandtvillc's time, who con-
tinued in the office the first f> months after; in
which time Kvelyn served in Powder for the
first 3 months ; hut, uctiing no money for it,
'made a stop of his delivery, according; to the
liberty of his contract : so that the same was
broktn iu the l^rd MandcvilU's time, and left
wholly in distraction to the now Lord Trea-
surer, with a debt for three mom lis powder,
dcli\ercd as aforesaid; his predecessor not

That, by the use thereof, neither his majesty i paying one pinny upon that contract in all
nor tlie subject, hath hitherto any charge or that lime. — Neither did ihat ha i gain with Kte-
prcjudice, but much ease in their dispatch. — t lyn sniVer any small inl« iruption, by the conti-
And as to Daliison's unsettling the Oiiice of nunl complaints s;hred up against him by Mr.

Ordnance, that fell out tt or 0 years since : and
the supply set down bv the lords, in 1617, was
4 years before the l^ord Treasurer was in office ;
neither did the commission of the treasury, nor
bis predecessor*, pursue any point thereby di-
rected ; but it lav wholly neglected, and now
•nly revived a«;nfnst the Lord Treasurer, who

S.uiler, and new propositions made by him for
sct'hnj* the powdi i-iiial.iiiLi otherwise ; where-
by Kvelyn** contract sio«>d under question, and
both the Lord Tie:i*-nrcr, :*nd Mr. Chancellor,
and the couimi*siom rs of the navy, had several
times the trouble to examine the same ; the
Lord Treasurer hav iug a purpose to bring Kvelyn

12LL] STATE TRIALS, 22 James I. \62h~-Prvcccdi*gs on the Impeachment [191*

to account for the profit, made by him, of the
surplusage of the price of the powder put to
tale : by this means, find by reason of other
mishaps, of blowing up the powder-mills by
fire, Evelyn grew discouraged ; and the service
was neglected, till Sadler's suggestions were
found frivolous, which was near a year's inter-
ruption of the service. — Besides, when the Lord
Treasurer entered, he found in the Stores bat
116 Justs odd hundreds of powder; and, the
20th of March last, he left in store above 141
lasts, notwithstanding the great expence of
powder, upon extraordinuries, in the now Lord
Treasurer's time, which also might have been
194 lasts, if the lord Mandeviile had settlecj
and maintained the contract in his time, by
addition of his 5 months provision, and the 8
month* which lie left the now Lord Treasurer to
pay for; whereas the whole- proportion of Gun-
Powder, assigned by the- commissioners of the
navy's book to be in store, was but 143 lasts of
powder; and -good reasons given wherefore
there should be no -more. — Lastly, It will ap-
pear, by comparing the quantity of Powder,
paid tor by the now Lord Treasurer, with the
time before, that his lordship had paid for as
much, in this short terra of 2 \ years, as hath been
paid for in the next 7 years before ; so as ne-
ver, in the kiag's time, were the Stores so well
furnished with powder for quantity and good-
n« ss, as they are now ; and vet never more
want of money in the Exchequer these 20 years,
than hath been in the now Lord Treasurer's
time. — To the last Article of the Charge, about
the bargain for the land which was sir Roger
QalliftMi's, the Lord Treasurer suith, That he
hath not made any unlawful bargain for the
land6 of the said Dallison ; neither hath he
paid for the -said lands with muking of baro-
nets, or freeing copyholders, or any other suit
to the king, as by that Article is pretended ;
but hath really paid for the snine in money and
money's worth, out of his own estate, to the
full value of the lands and more : and, for more
full declaration of the truth, he saith, That the
said sir Roger being indebted to the king in
13,002/-. 4*. 10 J</. whereof sir Tho. Mounson,
his Mirety,wus foumt debtor 3, 100/. the said Dal-
lisun's lands were extended for 9,962/. «ls. 10J«/.
thereof, and the said sir Tho. Mnunson's lands
for the said 15,100/. and these so eilmdcd, tuge-
ther with the sui«l smeral deb:*, were granted
by his majesty's letters putentthe 20th of July,
18 Jacobi, unto Francis Morrire, and other otfi-
ceis and creditor* of the Ordnance, tor 13,0<i2/.
owing t</ them hy his majesty: with a sjh uul
comintiotl to the Lord Treasurer and Clrinccilor
of the Exchequer, to make out such w rits mid
process for the *-.ud debt- as should be requir-
ed ; and, with n covenant, on The kiiii'* part,
that if, by rei»s><»ii of incumi.raiuo, they could
not receive the same in convenient time, then
it should be p.iid unto them out of the Exche-
quer.— These lands of the said sir Roger were
so incumbered by former charges, that the said
officers and creditors uf the Ordnance could not
raJM* by the said extent thereo;*, near so much

as the bare interestjof the said 9,962/. 4*. lOJti.
parcel thereof ; and therefore did not conceivo*
how it could give satisfaction unto then for the"
said 9,902/. due debt,long forborne; ban hat they*
must of necessity have recourse to his majesty
again for their better satisfaction according- to1
his majesty's covenant contained in the said
lease, made unto them in that behalf; and vet'
there was nothing allowed to relieve the- poor uns-
tressed lady of the said sir Roger DalltsoD and
her son : whereupon the now Lord Treasurer,
in July, 1691, being then but one of his majeft*
ty's commissioners for his debts, was mad*
acquainted by the said Francis Morrice; and1
other the said officers and creditor* of the Ord-
nance, of their intent and purpose ; and, being
willing to do his majesty the l>est service he
could therein, after1 divers conferences, did
come to an agreement with them for their in-
terest in the said extents, and to make them
payment of the said 13,062/. for the same, as'
follows, viz. 1,069/. before- the last day of No-
vember following 1621, and the rest by 500/.
every 6 months, at and after the Annunciation,
1623 : after which agreement made for the ei*
tents, he not perceiving how he could make-
any use thereof, unless he compounded also
with such as had the inheritance and other et*'
lates in the said Dallison's lands, did deal with
some of them for the same ; and then came to
a second agreement with the said Francis Mor-
rice, and the rest of the officers and creditors
of the Ordnance, to convey to them an estate,
which he then had for 9 or 10 years to come,
in the Petty Farms of Currants and Wines, of
the yearly value of 1,400/. (and worth 7,000/.
and more, to be sold) which he did grant,
and they did accept in full satisfaction of the'
said 13,0(52/. 4*. 10J</. and for their interests
in the said extents accordingly. — Not long af-
terwards, the Lord Treasurer, being desirous to
free himself of any further trouble or care, by
reason of many other the incumbrances which '
were upon the said lands, did, in or about No-'
vember 1621, agree with sir Arthnr Ingram, to
deliver the said hinds, with other lauds then of
him the said Lord Treasurer in the county of
York unto the said sir Arthnr, in exchange fin
other lunds of his, and to give unto him 9000/.
in money, for the compounding and freeing the
said estate and incumbrances, which were upon
the said lands, late Dullison's, and of a lease
he had of one Anthony Meers, of oth'.*r lands,
intermixed with the said Dallison** lands,
esteemed of the yearly value of 400/. per ann.j-
of w Inch 9,000/. the said Lord Treasurer, after-
wards, in Februsiry and Mnrch 1621, by the
roi;scnt of the said sir Arthur, did pay onto sir
Thomas Mounton, for his interest in Dnllison's
lauds, the miui of ."t,0lKV. besides the freiinj: of
hi* the .-aid sir Thum is Monnson's own lands
of ilu s-iid other extent for the said 3,100/. and
nil the residue of the said 9,000/. he the said
Lord Treasurer hath paid and satisfied, as it
hath been required by the said s*r A. Ingram
urcoidmglv ; which said several sums of 7,000/.
and 9,OOoi. amounting together to 16,000/. ait

M18] STATE TRIALS, 22 £cms I. 1621 — ofthcLDrdTrumtrcrMiddlfXtx. [WW

loore than the said lease and lands ate worth,
at and from the time of the said agreement
fur the exchange so made between the said Lord
Treasurer and the said sir Arthur : and there-
upon die lady Dallison, and sir Thomas Dalli-
aon, her son, upon a composition made with
them by the said sir Arthur, (lid, in February
1621, make an assignment of the said lease, to
certain persons named by the said sir Arthur in
trust for his use ; and, siuce the said agreement
and that time, the Loid Treasurer had no more
to do therein than as the duty of the place re-
quires, and, as he hath been advised by his ma-
jesty's learned council, convenient and fit to
be done on his majesty's behalf: and therefore,
as touching the rest of the said last Charge,
That the Lord Treasurer having agreed with sir
Thomas Dallison, and the officers of the Ord-
nance, he, to gain, indirectly, and by oppres-
sive means, an estate which sir Roger Dallison
bad passed to sir Richard Smith and sir John
Davey, did set on foot an outlawry of sir Roper
Dallison's, and thereby dispossessed sir Richard
Smith and sir John Davey, who bad been iu
possession, by a trial at. Jaw, using the power
of his place, and countenance of the king's ser-
vice, to wrest them out of a lease and estate of
{great value, the Lord Treasurer saitb, The same
i» wholly mistaken ; and that the truth is, That
the said sir Richard Smith, having a conveyance
of all the freehold lands, which were the said
air Richard Dalliton's in Scotten, as a mort-
gage for payment of 1,300/. and the said sir
John Davey having an assignment of the said
lease, ns a mortgage for the payment of 600/.
by year, for 10 years, upon a \ery hard con-
tract for money, lie the said sir Richard Smith,
long before die said T re usurer had any thing to
<h> with the said lauds or leate, was dispossess-
ed of freehold lands, hy virtue of the said ex-
tent, for the king ; and, after such time as the
•aid Lord Treasurer iiad so bargained and
agreed with the said sir A. Ingram, and had
left the said w hole business to him as aforesaid,
it was found that the said sir Roger Dallison
stood outlawed, after judgment, at divers seve-
ral men's suits, whereby the same lease and in-
terest was in his majesty, by means whereof
some difference grew between tlie said sir
Richard Smith, *ir John Davey, and the said sir
A. Ingram, which the said Treasurer used the
best means he could to leconcile; and, to that
end, endeavoured to have the same arbitrated
and ended by sir ! homas Storage and sir Nicho-
las Fortescu. : but their travel therein taking no
effect, after some suits in the prerogative court,
the exchequer, and common pleas, between Mr
Richard Smith, sir John Davey, and sir A. In-
gram, in conclusion, by and with the consent
of all parties, the said differences were heard
and ended by sir Henry Hobart, lord chief
justice of the common pleas, and by the rest
°^ ^.justices of the same court; by whose
mediation and order, there is to be paid to the
•aid sir Ricfeird Smith and sir John Davey, in
satisfaction of their elates and interest iu the
«« Jamb and lease, over and besides other

great sums of -money by them -formerly receiv-
ed, the sum of fyOOOl. And touching' the Charge
of the Contract, about paying the 8,000/. old
arrears, tlie Lord Treasurer soith, That all the
8,000/. wus not old arrears, us -is pretended, for
that 3,800/. thereof was then newly doe by
quarter-book, for certain quarters ending at
Midsummer, the next before the said year
1621. And also saith, That his promise there-
in was -made before hefacenre Lord Treasurer;
and that promise was but to do his endeavour
to get the 8,000/. paid j the same being a ju*t
aud due debt owing to ubout 100 poor fa-
milies, whose pressing necessities would have
forced him, after -lie came to the place of Trea-
surer, to have given them satisfaction, if he
had made no such uncertain promise -before :
and the said debt was paid at 13 several times,
by several portions, as money could be -best
spared, between March 1621, and May 1623 \
and the king wus so for from being prejudiced
by the Lord Treasurer's dealing in tins bargain,
that his majesty was thereby eased from the
repaying of the said 13,062/. 4*. lOJtf. accord-
ing to the said covenant: and, to make ft ap-
pear that no oppression or power was used in
this purchase, for any private benefit, or other-
wise, nor that the same was paid for by making
of baronets, and suits to the kins, as is pre-
tended, the said Treasurer will undertake, and
freely ofiereth, that the lands shall be conveyed
again to wImhh tbis honourable house shall ap-
point, upun payment of the said 9,000/. and re-
assuring of his said leases and interests in the
said Petty Farms, wiih repayment of the mo-
nies received upon the same. It being also
apparent by his declaration, That if any such
suits, oppressions, or other hard measure, had
been offered touching the said Unds or lease,
ns is ulledged in the said Charge, the same
were no way done by the Lord Treasurer, or
hy his privity or direction, or whilst the said
lands remained in his hands, which was not for
above 5 months; so as the same can in no man-
ner concern the Lord Treasurer, neither doth
he know of any thing done therein by any
other, but what hath been just and lawful. —
And as to the Baionrts, the same nothing at
all concerneth this matter; but was a grace
of his majesty, upon the «uir of a nobleman,
who was assisted by the Lord Treasurer, which
lie was pleased to confer upon sir Thomas
Mounsou, in regard of the loss of his office of
Hau-kcs ; and the same taking no effect, his
majesty upon the said sir Thomas Monnson's
late Petition, was pleased, in lieu of the Ba-
ronets formerly intended him, to grant ano-
ther suit fur the compounding with certain of
tlie copyholders in Wakefield, for the value of
50/. hy the year; whereof as yet he hath re-
ceired no fruit ul all/

" The humble Answer of the said Lord Trea-
surer to the Addition of his Charge re-
ceived from the most honourable court of
the holier House of Parliament, on Thurs-
day the 29th of April, 1(32*."

1915] STATE TRIALS, 22 James L 1 Ml.— Proceedings on the Impcachmau [1214

" To that part which concerns liim, as he
was master of the Great Wardrobe, the said
Treasurer saith, ' That he held that office for
the 3 years mentioned in the Charge, and that,
within that time, he did receive the ordinary
assignment of 20,000/. per annum or there-
abouts ; wherein, he conceives, he did no ill

were upon that occasion, or by some fault or
negligence of his servants trusted in that busi-
ness, left unserved : but that neither bath
been, is, or shall be, any loss to the king; for
he acknowledged it to Be iust and fit, that he
should provide and furnish the same at hie
Qwn charges: though the neglect of that little is

service to the king when he did reduce the no great matter, considering he has disbursed
vast charge of that office to 20,000/. per ann. ' ' ' -«---•

and, by 3 years experience, 10 *hew his ma-
jesty the means how that 20,000/. might be
again reduced to 12,000/. which lie coi.ceives,
is no argument that he hath brought that place
to any disorder or confusion, as, in a genera-
lity, is objected.— It is true that he made no
account, for his time, neither for the Ward-
robe, nor for the queen's Funeral; neither was
there any cause why he should so do, for that,
by his majesty's contract with him for the
Wardrobe, he was to d.scharge the ordinary
charges thereof for 20,000/. at his own hazard ;
and, for the said Funeral, having warrant, by
privy seals, to receive 20,000/. he received but
the sum of 18,500/. and yet saved some part
thereof, besides what he yearly saved upon the
ordinary allowance of the Wardrobe : with all
which savings hi-, from time to time, truly and
particularly acquainted his majesty, not being
willing to gain so much by the "same as he
found he did, without his majesty's privity aod
gracious allowance ; who, being rightly and
truly informed of all the particulars, did, upon
the said Lord Treasurer's voluntary surren-
dering of that beneficial Contract for the
Wardrobe, for advancement of his majesty's
service, having therein an estate for his life,
grant him a general release and pardon, by in-
denture under the great seal of England, Tor all
matters concerning the said Oilice of the
Wardrobe and Funeral aforesaid.'1 — lie further
saith, "Tint in the time of his being in that
office, he paid divers extraoidinury sums, which
were not within his bargain, nr.ou several war-
rants and privy seals ; as, 3,C0(>/. to the earl of
Carlisle, about 2,000/. for ncw-:urni*hing Kly
house for the Spanish ambit ?su h;r, above 1,000/.
for a new rich lar^e-clotli, and oilier extraordi-
nary disbursements of about l,U:;o/. more; for.
all which, amounting to f ,O0J/. or thcieahouts,
he never yet received, or demanded, any allow-
ance; an i, if any man hath any thir.j; owing to
him, in the time that the -aid liord Treasurer
was officer, (as he is well a^surt d there is non*»,
except some small remain- upon the foot of
some private reckonings) the same are no way
ch:irgc:iMc upon the king ; the said Lord Trea-
surer being their proper debtor, and hound by
that indenture, to disch:i;^e the same, which
he hath been eier ready, upon their demand,
to do accordingly; it l»eii * acknowledged by
the creditor of the Wardrobe, that they have
been better paid and used in his time, than
either before or since, and, concerning the
Charge of his not duly s:T\.iig the Loid Cham-
berlain's Warrants f t Supplier, it may well he
thru some few parcels, in s-mie warrants,
which could not then be suddenly provided,

so much for his majesty in extraordinaries, as
aforesaid, for which he never yet had any
allowance.— To that explanation of the former
Charge, concerning his not repaying the mer-
cnants the imposts due unfo theiu, upon the
exportation of sugars formerly imported, ac-
cording to his majesty's letters patent, of the
5th of Sept. 1610, the Lord Treasurer saith,
That the usage in that particular is such now,
as bath beeu ever since the impost was first laid,
without any alteration by him, or any for him,
in his time: neither did any merchant bring
Us certificate, and make his demand tor that
allowance, according to the form prescribed
by these letters patent, as the Lord Tieasnrer is
informed by thofe that farm the imposts of
him; and therefore there could be no denial
when there was no demand made. And, be*
sides, this is so far from being a matter of benefit
to the Lord Treasurer, that the farmers of the
impost under him, (who should have that profit,
if there be any) have been, and are willing to
give the merchants content in their desire, if
they will petition his majesty and sue out s
privy seal to warrant it; without which, it hatb
ever been understood, it could not be done in
respect, to the king's interest therein, and in
regurd it never hath been allowed heretofore.—
All which the said Lord Treasurer doth- aver to
be true in all points, and shall be ready to justify
and maintain the same, in such main.er as thn
honourable court shall award. — Middlesex."

After these affairs were all -cad, the Lords
received a Message from the Commons, im-
porting, " That they desired a conference with
their lordships, on the subject of two bills,
then before them; and at the same time, they
presented a Petition to the house from divers
merchants, whose names arc thereunto sub-
scribed, containing a complaint again«t the
Lord Treasurer, lor an imposition on Hops:
which complaint they humbly referred untu
their .lord.-hips, and compared the same witb
the imposition laid on French wines, even
when their merchandize was in the river of
Thames ; and affirmed that this hid doubled
the oppn ssion on the. merchants; for that the
nrchdu<:hc»*i, out of whose country the Hops
came, did thereupon lay new impositions upon
the manufactures of this 1 md. Lnstly, Tl:e
commons conceive, that this new imposition
on ll<»p«, was laid, without an v other warrant
than the Lord Treasurer's letter.'*

'1 his Petition from the merchants was or-
dered t» I c read, and wus as follows:

Thv li'imhle Petition of sundry Merchants
i»h se names -re here under subscribed.

" Most humble she*, That whereas in the

1217] STATE TRIALS, 22 James I. 1624.— tf the Lord Treaturer Middlesex. [121S

reign of the late queen Elizabeth ccmintiallv, i .

and until the 2nd vear of the king's major's | 1«» Majesty'* Speech at Whitehall, to the upper
reign that now is/ Hups wire rati-d lor The; house of l\ii lminc.it. May 0, lC;W,cuiiterii-
cm-lom theieuf at ltd. p«.r eveiy cwt. Alter- j J,l= the I^rii lnusuiei.
wards, in ihe time when the ctul of .Salisbury ■ •' My I-ords ! Of" mc-rry and of judgment
Hiu Lord Treasurer, ilu ■i>was imposed on hops « both, my lords, iuv s(.eech s-hall be uimo vou.
6ci. upon every cwt. which was done hy consent There is si gre;it «>tlic« r of iniiie shortly to come
*>f the merchants; which said custom and im- ! before you. accused of divers misdemeanor*
post hath continued so un:il October 1622. I am the^judie m whose room von are to ex-
At the time, when your petitioner^, :iiid others, .' ercise judgment; tor as 1 urn umierGod in this
iuid brought into this kingdom, and into the throne, so you are under mc : therefore I have
river llnunts. L.re.it qu.uititu^ otllops, Uie now , been desirous tl.ut 1 might open myself unto
JLurd Treasurer wrote his Inter to the Custom ' vou, am nt this mutter and oca a si on ; and, a* I
house, 'lhat no entries of any Hops should be ! lia\e once said in u parliament before to you,
taken till further order from him ; so lhat your I so will i promise to shew you, us in a chrystal,
petitioners [lops hiy long in shi; s and lighters, : my heart ouf of my mouth, iu such suit as no*
to their great charge*, and damage or' the said i false I eart or tongue shall he able to blemish
Hops; which was uVnc without your petitioners > what 1 shall represent unto you. — It is my judg-
kuowledge, they nothing mistrusting any such j meut, next under God, which you are to exer-
coru posit io n ; so that before vour petitioners - cise at this time; and therefore, as a judge in-
could be suffered to take up their goods, they , struct* the jury before the prisoner departs from
were forced to pay 10*. for every cwt. of Hops, \ the bar, so it becoiufs me to tell you how to
o\t r and above the duty and impost aforesaid. , carry yourselves in tins great business ; and the
— That divers strangers of Fluudeis, and others, cause hereof is thi«, because 1 am bound in con-
liave received up their goods upon bonds by science to be careful of your carriage herein ;
reason of the archduchess's ambassadors; but for, it your judgments should fall contrary to my
divers of thorn have nut yet paid their monies, j uppiohatioii, I protest to God it would be a
nor entered to pay, as they themselves have . great misery to me, and a greater grief unto
given forth in s|>eeches; nowiih*tundiug the your hearts. — Before the last parliament, I
petitioners, most of them, were forced to pay ' nevtr saw any precedent of this nature/ : iu the
in their monies, without any favour, to their ' ii*>t, against another ureal oihcer of mine (lord
great and intolerable loss and hindrance; and ! J hi tun; there needed no admonition from mc,
uthcrs have entered into bonds for the same, j because yc had * renin conlitf litem ;* in thisthv
which are yet in foicc. — That, by reason of I party stands upon l.i> justdiculioii ; and theru-
the suid impost, so exacted from the petitioners, ! fore ye have more need to take and examine it
mid others as aforesaid, there was a great impost ' well. There is no doubt at all of your doing
laid on in Flanders, in the archduchess's coun- I justice ; you are most of you nobly bin, the
try, from whence the* said Hops came, upou rest are noble by their places ; you are the most
fustians and other of our native conmiodi- ' honourable jury of Kuuluud ; nor do I intend
ties; which have been to the great loss of the I further to instruct you, than to give \our eye*,

petitioners, and to the great hurt and prejudice
of the common wealth in general, and of no
benefit to his majesty for the present ; for that,
since this great imposition there halh not come
hither the 20th part of those commodities us
formerly. — The petitioners humbly iutreat the
honourable assembly to take consideration of
the premises, and to be a means unto his ma-
jesty that the said petitioners may be repaid
the said money so exacted ; and that the im-

inany eyes see more than one, some light into
this matter. No king is the worse for the ad-
vice of his council, nor shall you he lor receiv-
ing my advice and instruction. — In all matters
of trial where are denials, two things are speci-
ally to he considered, the verity of the fact and
greatness of the guilt. For the 1st, you cnutiot
be too diligent in the search of the verity of
the fact : fur ' satius est renin dimittrre quam
1 innoceutum dnmiiare.' For the '2nd, Vou'

posts upon the Hops as aforesaid, which are j are to consider duly the quality of the offence ;

■ a ■ • I 1 II t ■ " * J* "I I «* *" ft

Still continued, may be reduced unto the tormer

Hate of lBd. upon every hundred weight of the

i»?iid Hops ; whereby your petitioners may be

else better enabled to continue their trade,

-w fiich otherwise they must of necessity desert.

_^% Sid further, that their bonds, formerly entered

=■ - 9 CO, may be re-delivered unto them to be can-

l^iled.w

~" 3I*y 5. The house waited upon his majesty
the Banqiietting house at Whitehall, and on
^^^, 7 th, the Lord Keeper made a repoit to the
*,^is of his majesty's speech to them ; but be-
-**^ &t? the said speech, he said, was inimitable,
*^^r-dship desired thut he might read the same,
*^dJ» be did in these words:

If.

for, if your punishment he far inferior to the
crime, it is an invitation to commit new of-
fences. And, if it be over and above the of-
fence, it is plain injustice and tyranny : there-
fore your punishment must be e\er bounded iu
measure and moderation, according to the qua-
lity of the otfencc. You will do, I am sure,
what a jur\ doth, for you huve taken a greater
oath than they; you huve'sworu, upon your
honour, to me ; by your conscience, towards
(rod. — And lure i shall gi\e a touch of two
ihingsj 1st, I shall speak of the Person of the
Man, and tlu-n of my Upiuiou of the Cour-e
which vou are to hold m vour iu hcaturr at this
time. — For the Per- on of the Mnn ; the first
acquaintance that 1 had with him was by the
4 1

1319] STATE TRIALS, 22 James L 1 621.— Proceedings on ike lmpcackmaa [ltW

lord of Northampton (who is with God) who-
often brought hrm unto me a private man, be-
fore he wafl to much as inv servant. Lie then
made so many projects for my proiit, that
Buckingham fell in liking with him, after the
earl of Northampton's death, and brought hiiu
into my service. For I profess it here openly,
and I am glad he is not by to liear me, Thi'.r,
besides him, I never saw young courtier tiiat
was so careful for the king's profit, without any
respect, as Buckingham was. He found this
man so studious for my profits, that he backed
him against great personages and mean, with-
out sparine any mail. Buckiugham laid the
ground and bare the envy; he took the labo-
rious and ministerial part upon him, and thus
he came up to his preferment. — I was deceived
if he was not a good officer ; be was an instru-
ment, under Buckingham, for reformation of
the Houshold, the Navy, and the Exchequer;
Buckingham setting him on, and taking upon
himself the envy of all the officers. And he
himself protested many a time to me, That he
had not been able to do me any sen ice, in the
ministerial part, if Buckingham had not backed
him in it. Hereupon I thought him the fittest
man for this place; he had seen before the
Abuses in the Exchequer, in the Navy, and in
a tliousand other particulars. — I must therefore
put you in mind of one thing, and justice
forceth me so to do : he cannot but have a
many enemies ; all Treasurers, if they do good
service to their masters, must be generally
hated, as M. Rosney was in France. And a
Treasurer cannot oblige me more, than when I
find suitors beg from me, and pray me not to
send my reference to the Treasurer, because
he gives them no good Answer. Two kinds of
people are continually hated in court, Trea-
surers and Ushers ; because this latter must of
necessity put disgraces upon men, and the
Treasurers must keep the king from importunity
of many suitors. I pray judge not by the af-
fections of the people, nor by the hatred of the
people ; you must avoid both these ; and there-
fore judges of old were paiuted blind. — The
9 1 id thing I recommend to your consideration
is, That you look upon a sound trial, so that
the Offence be clear; and, in the next place,
when you find a cause of punishment, let it be
within and not without the limits of his desert.
—Now I shall iccommend to you some Ge-
i.eruls; not tor his respect or particular, but
my own, my son'* and posterity's, and your
own, my lords, whose part God knows when it
may fall unto. Let no inan*s particular ends
tiring forth a precedent, that may be prejudi-
cial to you all and your heirs after you; pre-
cedents there are none of many years, before
iHs and the last sessions. The informers are
the J/mer House, and the Upper House are
the judges. If the accusn'ion come in by the
party wrongeJ, thru you have a fair entrance
for justice; i« ly men that search and hunt
iifUr other m-.n's liw», beware of it, it is dan-
gerous ; it may be your own case another lime.
N'o man can str.nd upright before Gcd and

man, if every act of his should be enquired
after and hunted out by every man, though it
concerns him not.— The main ground in an In-
formation is this, The party complaining should
say, This wrong he hath done me; if he hath
corrupted judicature in judgment, or taken a
Bribe to the hurt of the innocent ; if, in Extor-
tion, he hath wrested, by violence, from the
party ; here is a just ground for an accusation.
But for every busy fellow to turn inquisitor a
a thing insuncrable; how far it falls thus, ifl
this particular, i know not. Bribery, as I
wou'd define it, is where a judge receives a
reward against the innocent ; Extortion is done,
when money is wrung from the subject by the
greatness of a man's power, and by the denial
of justice ; Misdemeauor is, when a man aba-
seth his place, and oppresseth the poor sub*
jects. I have discussed this point, and I do not
doubt but, when he comes before you, you will
hear him with temper and patience. — Now, ray
lords, I speak for justice; if this party have
done so, after such an example shewed the hut
session, his fault is double; for be came ia
upon a reformation, and he discovered the cor-
ruptions of others. This I would say to you, if
I was to die this hour: errors by mistaking
God forbid that you should be rigorous in cea-
suriug them ; but errors that are wilful, spare
them not. — Some curious men may say, peratV
venture, he might, in some points, have doot
better ; but this is not criminal in him : but if,
by deceit and cozenage, by helping himself, be
hath lundered my estate, he is wor*e than t
devil. Treasurers cannot be barred from sat-
ing, and the king's liberality no man can ooa-
trouL If he hath helped himself, with the
king's loss, I speak not for him. — Lastly, there
are divers things laid to his charge, w hich were
done with my knowledge and approbation ; let
bim bear no charge for that, for that is snioe,
and I must bear it. For if you question aim
for any such thing, you punish me; if any
thing touches upon him in Uiat kind, either
meddle not with it, or stay and know the verity
from me. I love my servants, God is my wit-
ness, but it is only for virtue's sake ; and he it
an unhappy master that doth not love a faith-
ful servant. But, if there appear in any of
them falshood and treachery, and deceit under
trust, my love is gone. If, of an aniiel, he be-
come a devil, I will never excuse him : I will
never maintain any man in a bad cause : * R
< sic finitur fabula.' "

The Report of the King's Speech being made,
the lord keeper observed further, " That hit
majesty said, he did not deliver this speech oat
of any suspicion of their lordship*?, bat only in
discharge of his duty and conscience.*' Which
the house ordered to be entered. — The Lord
Treasurer being to appear this day at the bar,
it was first agreed, That when "his lordship
came he should kneel. And being brought W
the bur, by the gen tU man usher, not baring
his start in his hand as Lord Treasurer, he
kneeled until the lord keeper willed him »
stand up.

IB81] STATE TRIAI A 52 James I. 1024..— </ the Lord Treasurer Middlesex. [192$

The Attorney General opens the Charge
against the Lord Tr. a»urcr as Master of
the Wardrobe.

Then AJr. Serjeant Crowe came to the clerk's
table, and opened the Charge against him to
this effect :

" The Commons of Fngland, bein» the ge-
neral inquisitors of the mres and gri<;\ ancei of
the kingdom, have presented their Complaint
against this great lord and officer; whereof,
and of other misdemeanors, their lordships have
before taken cognizance. That he is to charge
him the Ijord Treasurer, with Violation and
Breach of Trust, in defrauding the king who
trusted him; and with Bribery and Oppres-
sion.— That he would begin with his lord-
ship's misdemeanors in the office of the Ward-
robe : and shew, That heretofore, that office
being very expensive to his majeity by renson
of the charge and provision of his majesty for
the queen, for prince Henry, the queen of tto-
hemia, and the prince's hk>hne<-s that now is,
he, the said Lord Treasurer, informed liis majesty
of the greatness of his charge, and that he would
Bare his majesty a great part thereof ; where-
upon he procured the office to himself; hut he
stood charged with not hint!, save the ordinary
provision for his majesty. — He is made Master
of the Wardrobe, Sept. 1 4, 16 Jac. And Dec.
Q6, 18 Jac. the kins; reciting, '* Whereas we
had certain notice that sir Lionel Cranficld, in
the execution of the said office, hath so directly
and carefully performed the said trust, in that
behalf committed to him, ns that, hy the small
time of his service there, great sums of money
hare been, and are likely, yearly, to be abated,
in comparison of former expences therein for
some years past : and also that, by the conti-
nuance of his caie and good endeavours in the
said service, our former great yearly ex pence
of the Wardrobe hath been reduced withm the
sum of 20,000/. and yet with the maintenance
of the former state thereof; and that of 20,000/.
assigned for the queen's Funeral, he hud re-
ceived 1.r),500/. and no more; and that the said
sir Lionel by his discreet and careml perform-
ance of that truht, hath, with the said 15,500/
discharged the said Fun end honourably, and in
such sort as was requisite, and hath brought
the said charge within the miiii of 15,500/. and
yet there were black cloths and studs to the
value of 2,000/. or thereabouts, and some part
also of the said money saved :" the king, tl ere-
opon, grants him all that he had saved of
20,000/. for the year ended at Michaelmas,
1619, and lor another year ended at Michml-
noa«, 1020, the ordinary charges deducted ; for
which sums he agnea to discharge the ordinary
charge of the Wardrobe ; and the king i! rants
the black cloths, !>lulfc, and monies unto the
said sir Lionel, remaining of the said 15,500/.
for the Funeral, for his disbursements for the
ordinary of the Wardrobe, tor which he was
to account ; hut not for the surplusage, which
he saved'of the 20,000/.— Pre. 27, 18 Jac. the
king makes the *amc Recital, ut supra ; and,
having given the surplusage for 2 years before,

doth now continoe it for life, yearly at Michael-
mas, upon his account, for the Wardrobe, the
necessary disbursements deducted, and gives
him the surplusage without further account.—
Jan. 11, 19 Jac. the )/>rd Treasurer surrenders
his Patent. Note, He got, in these last three
years, f>,000/. per aim. and had 6,000/. gi\en him
at his farewell. In tuto, 30,000/. — Jan. 18, 19
Jac. the king pardons l:im all sums of money
received by him for the Funeral or Wardiobe ;
and he covenants to discharge the king of such
debts as were due by him for the Wardrobe.
Hy this it appears how the king trusts the Lord
Treasurer, being master of the Wardrobe, and
what expectation the king had of his extraor-
dinary sen ice ; that the exponas should he
mnch abated and diminished, and yet the state
of the Wardrobe maintained by competent and
sufficient supplies, and that what the supplies
were, should appear upon account ; and there-
upon the account was directed by the patent.
— And now, see, my lords, how the Wardiohe
is brought into confusion, and how far it is
from the old state thereof: which by the pa-
tent of my lord, should Imve been maintained.
And, in this, will appear unto your lordships
plainly, Breach of Trust and Fraud. — The
warrants to be served for the Wardrobe, came
from my Lord Chamberlain, from the master
of the household, and from the groom of the
stole. The warrants and emptions thereupon
were usually, heretofore, entered in the clerk
of the Wardrobe's books, that the provisions
and particulars supplied might appear ; hut, in
my Lord Treasurer's time, no warrants are
brought in or entered ; n > emptions entered,
nor book of expences kept by the clerk, as it
ought to he. — The clerk should have surveyed
the parcels; but could not, through my lord's
default : neither is there any Account made
ns ought to have been : ami all this is contrary
to the patent, to the prejudice of the king,
and of the officers and workmen in the Ward-
robe. And, to the end his proceedings in that
office might not be discovered, this ensued fur-
ther upon it, that the warrants were served
short, and many not served at all ; those that
were served, were base and ill, stuffed with great
delay and long suit1; and yet the suitors for
the same were idightcd by my lord and his offi-
cers.— And although my* lord had his money
impressed to him, yet lie made slack and slow
payments with greut abatements of the prices
formerly allowed. And at my lord's depart-
ing from the office, in Jan. 19 Jac. he gets a
pardon for all he hath received, without any ac-
count, and obtained a lease of the Sugar*, lor a
recmnpencc of his surrender of that office."

Mr. Serjeant Crew having thus fur opened
the Charge; the clerk by his direction, read
the Depositions of Witnesses taken to prove
thesume: which Depositions will be found ut
hngth in the Lord*' Journals, vol. 3. p. 345,
after which the I<ord Ket per moved. That the
Lord Treasurer might answer hi* particular
Charge touching the Wardrobe. His lordship
thereupon demanded ink and paper, and had it.

1223] STATE TRIALS, 22 James I. N>24.— Proceedings on the hnpcachment [1234

ness of gains in that office ; hut, to the end he
might have a great recompcnce, first he named
4,000/.' per ann. and afterwards 8,000/. and
that this drew 0n the lease of Sugars to h s lord-
ship. Then Mr. Serjerint Crew observed, That
the Charge against the Lord Treasurer is upon
proof; his lordship'» Answer upon averment ;
which he humbly referred to their lordships'
consideration. And thus ended the Charge
touching the Wardrobe. And then the Lord
Treasurer was withdrawn.

The Lord Keeper removed to the earl*
bench, to satisfy the house touching the Loni
Treasurer's spi ech, 'I hat the duke of Bucking-
ham knew ot I lis gains in the Wardiobe ; and
told their lordships " Thnt he well remember*,
that when the duke of Buckingham moved his
majesty to place sir Lionel Cranfield Treasurer,
(which he desired, though afterwards he

The Lord Treasurer's Answer as to the Ward-
robe.

Then the Lord Treasurer answered, " That
hi* majesty used his service in many particulars
touching his estate ; as, in the Navy, the House-
hold, and Wardrobe That he found the ex-
pences of the Wardrobe of a vast sum ; every
one made what hills they would, and did set
what prices they would. When he was master
of that office, he sent for the artificers, and told
them, That he would not look upon what was
past ; hut that hereafter, the prices should be
reasonable, and the king's money should be
ready, and they duly paid. That there were
many fees to be quarterly paid in the Ward-
robe ; all which were duly paid. As for Can-
ning and Pulford,he gave them 2«. in the pound
more than another would have sold for : he

bought little of those of the Wardrobe, but j ed unwilling) that then the king required the
chieily much of themcrclnnts; and bad a good j surrender of the Waidrobe to the earl of Den-
merchants shop in the Wardrobe, and hought ! bi^li. That when the Lord Treasurer beard of
of the best. — That Pulford romp] tins not of a
hard price, but that he had not the ancient

price.— As touching the not seiving of divers
"•arrant?, That his business being many, he re-
ferred those to his servant Colebeck: That not
above the value of 7 or 000/. remained unserv-
ed ; whereas he hath laid out 6 or 7,000/. upon
the cxtraordinarics of that office ; as, for fur
nishing Ely-hoii-»e for the Spanish ambassador,
a rich barge cloth for the ting, and many other
things; and th:it.he gave the earl of Carlisle,
his predecessor in that office, 3,000/. — As touch-
ing the baseness of the stutf served in, he de-
sired they might he compared with those for-
merly served in ; and affirmed they were much
better. — And whereas some complain thev were
slighted, when they were suitors for the warrants
to lie Nerved, hi> lord>hip desired thev might b*
examined, whether they wore slighted by him or
no. — As touching the Account, his lordship an-
swered, That, by the patent, which was read, he
was to account ; but that he had another pa-
tent, if he he not deceived, without account ;
which h«s lordship delivered : and the clerk read
the same; and also his majesty's explanation
upon the lease of Sugars, grunted to the l/>rd
Treasurer, upon hissunender of the Wardrobe."
Then Air. Serjeant Crew observed to the
Lords, out of both those, " That his lordship
was to account for the ordinary disbursements
if the Wardrobe." — The Loni Treasurer an-
swevd, " That he conceived he was not to ac-
count : Th.it he first reduced that office from
the va«>t charge he told the king of; and where-
as he whs allow i*d o0,0fH)/. per aim. for the
same, he told the duke of Buckingham, 2 years
since, that he got too much thereby; and that
it might be defr.iyed for 12,000/. per ann. ; ami
that he, having reduced that office from 30,
nay -10,000/. per ann. unto 1'2,000/. is a good
account." — lit reupon diwrs lords piesently af-
firmed, That the duke of Buckingham had ac-
knowledged, that the J/ml Treusurer, when he
was to surrender the Wardrobe to the earl of
Penbigh, did acquaiut lus grace with the great-

it, he magnified the profits of the place ; first
to the duke, that it was 4,000/. per ann. Strutty
to the king, that it was worth 6 or 7,000/. per
ann. ; whereby he got the Lease of Sugars at
4,000/. per ann. less than they are worth ; and
his successor, the eail of Denbigh, had 4,000/.
per ann. less than his lordship, for disbursements
of that office of the Wardrobe. That the duke
being moved at this the Lord Treason r then
told his grace, that his trains in that office had
been a* ,000/. per annum ; nay, more than be
could well tell ; and, till then, his grace kne*
not of the great gains of that office ; and if
his grace, who hath been ever careful for the
kind's profit, had known of it sooner, the Lord
Treasurer had not held that place so long ; for
his grace is * amicus usque ad aras ' — Then it
was ordered, That the lj.»rd Tre:tMoer be warn-
ed to he here again, at two in the afternoon at
the bar."

May 7, p. m. The Lord Treasurer being
brought to the bar, us before, kneeled not until
he was remembered thereof by the Lord Keep-
er ; then he kneeled, and the Lord Keeper willed
him presently to stand up. The king's Attor-
ney being comminded to open the second
Ch-irgc against the Lord Treasurer, his lordship
vi id " He was unprovided in the morning for
the Wardrobe; and besought their lordships to
take into their consideration, that he is denied
counsel "to speak for him, being charged with
ureal mattns, for it may he their own case; and
he hath precedents, as he is informed, that he
might have counsel allowed him : that, how-
ever, he would speak out of his own strength;
but de-iied tin ir lordships, that, if lie forget any
thin^, no advantage he taken against him," unto
which their lordships agrted. — The l»rd Tree-
sun r made two other requests ; the one " for
that his witnesses have not fill I v answered touch-
ing the Wardrobe, that he might have a re-ex-
itmiuatiou upon the same interrogatories.**--
'This the house denied, as not usual to be grant*
ed in other courts, after publication, for that it
might pioJuce pcrjurr. His lordship's other

1985] STATE TRIALS, 22 James I. 1624.— -o/ the Lord Tramtrer Middlciex. [1996

request was, "That he might product* his proofs
or records that the workmen of the Wan! robe
were paid:** which was also denied; tor that
the non-payment of the workmen is but an ac-
cident to his Charge. *

The Attorney General proceeds on the Charge

of Bribery.

Then Mr. Attorney was willed to proceed :
and he proceeded in this mannc r, viz. — " The
second Charge wherewith the Lord Treasurer
b charged, is tor three several Corruptions ; two
of them disguised under the shadow and pre-
test of a bargain ; and the third of a new year's
Sift. Concerning the two former : it cannot be
enied, That, Feb. 6, 17 Jac. his majesty did
lease unto sir Nich. Salter, and others, the cus-
toms and imposts o( French and Rhenish Wines,
from Michaelmas, 162 2, for 9\ years; and did
covenant with the lessees not to lett uuy new
imposition upon the wines, during the continu-
ance of tiiat lease, without tire assent of the
lessees. Aud, Jan. 19 Jac. the king made a
lease unto sir John Wolstenholme, and others,
for divers year*, of the great customs ; m which
lease there was a covenant, on the part of the
farmer*, that they should put in security for the
payment of their rents ; and, for performance
of this covenant, they were to have the allow-
ance and warrant ot the Lord Treasurer, with-
out which the king's remembrancer would not
take their bonds. Jan. 1 1, 19 Jac. a new im-
post of Hi. per tun, was set upon the Wines ;
and the same bring done without the consent
of the farmers, and to their great damage, they
were to expect recompence for the same upon
their covenant. Upon these two occasions,
the farmers of the several farms were necessa-
rily occasioned to become suitors to the Lord
Treasurer ; the one for recompence and repa-
ration of their loss, the other for allowance of
their secutity, and his warrant to accept it. —
The farmers of the Wine* began their suit to the
Lord Treasurer about January or February,
anuo 19 Jacobi, and continued it with much
instance until December, anno 20 Jacobi, ten
or eleven months together without success;
whereupon they found means to have access to
the king himself, and represented their grief by
an humble Petition : which his mnjesty an-
swered most graciously, and giive straight-charge
to the Lord Treasurer to eive tliem a speedy
dispatch, and conclude with them upon such a
recompence, a» in honour and justice was fit.
And thereupon, Dec. .°.l, 1622, the Lord Trea-
surer did agree with them, that they should be
allowed 9,000^. to be defalked in 0} years out
of their rent, after the rate of 1,000/. per ann
This beiiiK agreed on, they were to have his
lordship's warrant to the king's attorney, for
drawing n book according to the agreement ;
which warrant was speedily prepare d and drawn
by his lordship's secretary ; hut delayed from
iJec. 31, an. 20 Jac. until June 24, an. 21 Jac.
And the farmers of the. Great Customs huving
divided tlie farms into 31? parts, every of which
)Wrt was to give his majesty security of 1,600/.

for payment of their rent, they presented their
secum v to the Lord Treasurer, who allowed and
gave warrant to the king's remembrancer to re-
ceive it ; but tlie parties unto whom five of
these 32 p:irt* were allotted, falling off and re-
linquishing their pans, the four patentees of
the farm resolved to resume those parts to
themselves ; mi id thereupon tendered the Lord
Treasurer their own security for those five parts;
which he agreed to accept, yet protracted them
till June, an. 21 Jac. — The business of both
farms thus delayed, and it being conceived that
money was expected, the fanners of the Wines
resolved to pre-ent the Lord Treasurer with
500/. and they of the Great Farm resolved of
the like sum; and Mr. Abraham Jacob being a
partner in either farm, was entrusted severally
by the fanners of each fnnn, viz. 500/. a-piece,
to be presented to the L<>rd Treasurer ; which
he paid in one entire sum of 1,000/. to Mr.
Catchmay, the Lord Treasurer's steward, June
27, an. 2i Jac. by the Lord Treasurer's appoint-
ment ; and thereupon the business of both
farms had a dispatch by the Lord Treasurer's
means. — But to palliate and disguise these two
corrupt gifts, the Lord Treasurer then pretend-
ed to have 4 parts of the Great Farm divided
into 32 parts; and, in his Answer touching
these Corrupt ions, justifieth the taking of 1,000/.
by way of bargain for those 4 parts from the
farmers of the Great Customs : this Answer
being disproved, and it being made plain that
he had no port in that farm, it must needs fol-
low thpt the money was taken corruptly, for the
dispatch of the farmers business, and, lor mani-
festation hereof, it stands proved. — That upon
the treaty of the bargain for the Great Farm,
the Lord Treasurer propounded to tlie fanners
to have some parts in the farm, not for his own
benefit, but to dispose of amongst his friends;
but this was rather a proposition than any set-
tled resolution or conclusion : for the farmers
doubting, lest, by this pretence, some partners
ini'ht be put on them with whom they were un-
willing to join, desire the Lord Treasurer, that
they might make choice of their own panners,
and, if their farms prospered, they would be
thiukful unto his lordship. — This thankfulness
was afterwards perfonned on their part, for
they rai«ed his usual new year's gift from 1,000
marks to 1,000/. and, upon this request of the
merchants, the l^ord Treasurer waved lus pro-
position of having the disposal of any parts in
the farm ; which apneareth not only by the
plain and express test niiony of many witnesses,
hut by these proofs following, \iz. 1. Tlie lease
of the Great Fnrm bears dure, Jan. 1, an. 19
Jac. between which tune and April 29, an. 20
Jnc. the fanners divided the whole farm into
:'/l parrs, allow inn to each man his part, and
red' i red the same into writing, expressing there*
in the sum of the security which every man was
t.» give, without menti miiig therein any parts
reserved to the l^ord Treasurer, or his friends;
and this writ in jr, hting tendered to the Lord
Treasurer, April 29, 1022, was by him allowed,
aud warrant signed by him to the king's remen>

1227] STATE TRIALS, 22 James I. i«24.— I'roccedingt <m the Impeackmcxt [l«S

brancer Co take security accordingly. 9. When
the partners, to whom 5 of these part* were al-
lotted, fell off, and would not give security, the
patentees resolving to take those parts to them-
selves, tendered their own security to the Lord
Trea*urer,and he agreed to accept it; and, though
he protracted it long, yet he did nor, in that long
time of delay, challenge any parts until about
Jui»e, 1623. 3. The fanners resting secure about
thut proposition, did, after the 29th of April,
162?, divide the whole farm hy indentures, al-
lotting to each man. his due part, without re-
serving any for the Lord Treasurer. 4. At
Christina*, 162Q, the first year of the farm
ended ; aud this year's profit was, by account,
in April 1623, divided among the partners, re-
serving no share to the Lord Treasurer. 5. But
the truth is, Thnt all this time the \jord Trea-
surer rested quit-t, and neither did nor would
challenge any parts ; the farm being of that
small expectation of benefit, as five partners
gave over their pints, rather than they would
ci\£ security ; but, about June 162S, the farm
being grown more hopeful by the return of some
East India ships, the Lord Treasurer having in
his hands the business of both farms, which he
had so long delayed, meaning to make this a
veil and rover for taking those corrupt gifts,
then pretended to have four 32 parts, which be
had waved so long before. 6. The Lord Tree-
surer appoiutiug Cntclimay, his servant, to
receive the 1,000/. of Jacob, which was received
the 27 tb June, 1623, forbad him to give any
acquittance for the money, but to leave that to
himself and Jacob; which, had it been paid
upon a plain bargain, he never would have
done. 7. This money was entered into the
Accounts and Bonks of the said Fnrms : for in
the Journal Books of the Petty Farms, July 31,
1623, there is 500/. entered to* be paid and pre-
sented to the Lord Treasurer, by the hands of
Mr. Jacob, for a gratification of his favour in
accommodating an allowance of 1,000/. perann.
to be tiluted of their rent for the time to come ;
and the like entry was made in the ledger of
the same farm. And, Dec. 20, 1683, upon
the general Account of that farm, this 500/.
is put to uccount, rh a gratuity given to the
Lord Treasurer, and is borne rnteably by all
the partners of the farm, of which account
many. copies were given out to the partners ;
and, for the other 500/. there is extant a war-
rant, dated July 29, 1623, subscribed by sir
John WoUteuhoime and Henry Garraway, two
of the farmers of the Great Farm, directed to
Williams, the cashier of that farm, to pay to
Mr. Jacob 500/. given by him, by order of the
fanners, t> the Ix>rd Treasurer, for a gratuity,
and to put it to the account of the farm ; which
was done accordingly: and these Accounts
stood in this manner till Feb. Inst, after the
parliament wns summoned ; and then the Lord
Treasurer caused Jacob to procure the 500/.
that was set upon the Petty Farms, to be al-
tered from thence, and to be charged upon the
farmers of the Great Farm ; and satisfaction to
be given to the partners of the Petty Farms of

their proportionable parts they were charged
with fur that 500/. upon the aforesaid Account
of the 20th Dec. ; and as many as could of the
dispersed copies of that Account to be gotten
in. lie also procures Jacob to write a letter
to.his lordship and to antedate the same in June
before ; by which Jacob did intimate, that the
1,000/. was given his lordship for four 32 parts of
the Great Farm ; and himself made an acquit-
tance to Jacob with the like antedate, acknow-
ledging that 1,000/. to be received for those
four parts; which indirect courses of changing
the accounts, and antedating the said acquit-
tance and letter, manifesteth that the former
proceedings were not sincere, but were to be
converted and blanched with these device!.
Touching the said Corruption, shadowed under
pretext of a New-year's-Gift, it stands proved.
That, at Christinas last, 1628, the farmers of
the Petty Customs presented the Lord Trea-
surer with a tun of wine, intending to hsve
added to it a pipe of Canary wine, or the best
sack ; but the Lord Treasurer misl iking the
smallness of their present, urged them to a far-
ther gratuity in money, and thereby obtained
from them, besides the wine, 100/. in money."
— The Charge being thus opened by Mr. At-
torney, the clerk read the Proofs, which win1
be found in vol. 3, p. 352, of thelitis* Journal!.

The Lord Treasurer's Answer to the Charge of

Corruption.

The Lord Treasurer answered, « That Use
greatest part of these proofs swear not that
they of the Petty Farm gave him the 500/.
That it is true the great farmers paid it to to
lordship and laid it on the Petty Farm, and de-
ceived tlirm aud abused his lordship thereby.
He denied that the petty farmers were suiton to
his majesty at such time as is affirmed ; but they
complained to his lordship and he directed then
to exhibit their bill into tlie exchequer cham-
ber, and ordered Mr. Attorney to answer it :
that they liked it not; but, by some powerful
means, delivered a Petition to the king (a vett
scandalous petition against his lordship) whirs
the king referred to the chancellor and himself:
that they demanded an allowance of 10,000/.
to be presently made, and he allowed them hat
9,500/. to l>e paid in 9{ years ; for which lie de-
served no bribe : that his warrant to the At-
torney was delayed for these two causes: 1*
For that his lordship propounded to buy in their
farm for the king. 9. For that their warrant
was not drawn as it ought to be." — Touchwp
the Great Farm, his lordship stud, " He wooM
make it appear, that he had it served four 03
parts therein for himself and his friends ; and
alledgcd, Tint those (armors have confessed
that, their forms prospering, he thereupon did
demand a rerompcuce for his part." Here
i his lordship rend the Heads of his Proofs not
of a paper, and then required that the exaou*
nati.ms taken on his part might be read; wbich
were read accordingly by Um clerk. — See Lortb
Journals, v. 3, p. 358.
Then the Lord Treasurer made a brief rep

!

L9W] STATE TRIALS, 23 Jams* I. 1634.— o/*fe lard Trtomtrtr Middle*!. [1990

idon of hn proofs of hit interest in some 39
ports of the Great Farm ; and took exception
tgainst tbe testimony of Jacob, for it varied in
tisse of payment of his 1,000/. from the testi-
mony of Hyde. And his lordship affirmed,
* That the 500/. was misplaced by him, tlie
isid Jacob and two more, on the farmers of the
Petty Farms ; wliereas he received the same
only for his interest in four 32 parts of tbe
Great Farm." And as touching the antedated
letter, and tbe antedated acquittance, his lord-
ship said, " That they were so done, lest Jacob
should die, and so his testimony be lost.'' Unto
which Mr. Attorney replied, " Tliat it is suffi-
ciently proved, that the said Lord Treasurer,
nttther when he received the 1,000/. nor long
before, had any right to the said 99 parts :" and
thereupon he stated the case as before, and re-
hearsed tbe seven reasons by him formerly al-
ledged, to prove that the Lord Treasurer had
waved his proposition of having the disposing
of any part in the Great Farm. And, ns toucli-
ing the Lord Treasurer's exception to the testi-
monies of Jacob, for that it varied in time from
Hyde, Mr. Attorney shewed, that Jacob de-
posjith, That he paid the money to the Lord
Treasurer on the 87th of June, 1693, by direc-
tion from the farmers, and Hyde swears, That
the money was delivered to Jacob the 31st
July, 1623 ; which was by way of allowance
ben again, so no contradiction between them.

Then the Lord Treasurer protested, " That,
•she shall answer it at the fearful day of Judg-
ment, he received that 1,000/. for no other con-
sideration than for his share in the four 39
parts." And as touching the third Corruption,
(j wayofaNew-YearVGift, he said, "That
nothing belongs to the Lord Treasurer's place
bat 90s. per diem, the sale of the places when
(hey fall, and the New-Year's-Gifts ; and de-
nied, That he urged them to any certain sum.
All which, he said, he would humbly leave to
Choir lordships honourable consideration; and,
withal, requested their lordships to forbear his
fufilier attendance here till Monday next, be-
cause he had spent his spirits so far, that his
cause might otherwise suffer through his weak-
ness." And so withdrew himself. — The Lords
named his request, and commanded the gen-
tleman usher to signify so much to his lordship;
and further ordered, that he should attend their
lordships here again on Monduy next, at eight
in the morning, at the bar. Au order was
signed by theclcik accordingly, and sent to
the Lord Treasurer.

May 8. The Ix>rds received from the Com-
mons this message " That the Commons do
humbly desire to know, what time their lord-
ships will please to appoint for a conference
toochmg the bill on Monopolies. They do also
desire a conference touching some Accusation
against the lord bishop of Norwich, unto which
Ins lordship has not yet been henrd ; humbly
leaving the time and place to their appoint-
ment. And they do earnestly recommend to
their lordships consideration that general
peace-maker of England, the bill of Conceal-

ments."--"Anne. The Lords have appointed a
conference concerning Monopolies this after-
noon, at three in the Painted Chamber. They
have not yet resolved of a time for the confer-
ence touching Accusations against the lord
bishop of Norwich ; for that divers of the lords'
are now absent : but, as soon as they can con-
veniently appoint a time for the same, their
lordships will send to them by messengers of
their own. As touching the bill of Conceal-
ments, their lordships have, taken the same
into their serious consideration ; and it is only
deferred for that all the king's council, who are
appointed to attend the same, are, at this time,
otherwise employed: but their lordships do
promise all possible expedition therein.

Proceedings against the Lord Tre?^irer on the
Lease for Sugars.

May 10. The Lord Keeper put the house in
mind of the business concerning the Lord
Treasurer, to be proceeded in this morning.
And his lordship being brought to the bar, Mr.
Serjeant Crew opened the Charge against him
on the Lease of sugars, in this manner :

" Quarto Decembris, 18 Jac. The king
leaseth to George Herriot the impost on Sugars,
to hold from Christmas following, for three
years, at the rent of 5,6G6/. 13*. Ad. per aim.
payable at Midsummer and Christmas. Duo-
decimo Jan. anno 19 Jac. The Lord Treasurer
procures Herriot to surrender that I care ; and,
the next dav, takes a lease thereof from the
king, unto Nicholas Harmon and Tho. Catch-
may (two of his servants) unto his own use, nt
2,000/. rent per ann. and lets the same unto the
farmers at 6,000/. per ann. and, to effect this
surrender, gives order, in a time of scarcity of
money, for tbe payment of 14,865/. due unto
the said Herriot for jewels, which was paid,
between the 15th of Dec. 1621, and the 10th
Jan. following, in this manner, viz. 7,000/. odd
money, out of the arrears of the said Herriot s
rents, and 7,000/. odd money, out of the To-
bacco Farm, by way of anticipation. — The
crime objected against the Lord Treasurer
herein is this : had Herriot's lease continued,
Herriot's debt had been paid out of his rent ;
and the suid Treasurer hits not only caused
the said lease to be surrendered, and procured
a new lease thereof unto his servants, to his
own use, at a far less rent; but hath laid
7,000/. of th:it debt upon the Farm of Tobacco :
and this he hath done in a time of scarcity of
money, even then when he caused the imposi-
tions to be laid on the wines for a supply for
the Palatinate : and further he hath paid the
smaller rent of 2,000/. per ann. very slowly unro
the king ; an arrear of 3,000/. thereof being
paid since the 31st of Dec. last, after the sum-
mons of this parliament. And whereas, for
the advancement of trade, the merchants, upon
the exportation of their merchandizes, arc re-
paid their custom, which the? formerly paid
upon the importation, this is denied upon
the exportation of Sugars, to the damage of the
merchants, and for the Lord Treasurer's private

1*31] STATE TRIALS, 22 James I. 1 024_J>hxm*0gt m At Impeachment [lflB

gain." Then th* clerk read the Proofs; tern , lordship ten weeks together, to he discharged;

Lords' Journal*, v. 3, p. 364. | mod yet bonds were exacted from the mer-

_.. T . ,r , _ . ■ chanu of Bristol for the payment thereof! after

The Lord Treasurers Defence. , ^ Lutd Tr€asurer Wa7 acquainted with the

As to this part of the Charge, tlte Lord Trea- said order in the exchequer, even till the sum-
surer coi.U»*ed, "'LJuit tl.e lease to Herriot mons of parliament; fur which Mr. Serjeant
wan at the rent of 6,060/. 13s. 4d. and the Crew charged the Lord Treasurer with oppres-
lease to h'i» own use, (upon the surrender; at ' sion and extortion, contrary to his lordship's
S!,«,00/. rt lit, unci that he hath let the same at oath, * To do right to the poor and rich in such
tiJHyjl. per aim. and artirmed, That his majesty things as concern his office.' — Then the clerk
was lii>t acquainted with it, aud well allowed . read the proofs. See Lords' Journals, vol. 3,
thereof." — Hereupon the Lord Keeper signified j p. 365.
to the house, tliat the king had commanded i _ _ , v

him to tell their lordships, That his majesty ' Tlw ^°rd Treasurers Answer,

understood that the Lord Treasurer should gain • The Lord Treasurer answered, " That hereia
by his lease 4,000/. per auu. So there waa no he did hut his duty ; and that if be bad neglect-
further proceeding in that point of the charge. ' ed it, he had not done his duty; that lie re-
— The Lord Treasurer aUo confessed, *' That i quired nothing to be done, by his Warrants,
he paid Herriot 14,000/. odd money ;"butailirm- \ but what was accustomed iu queen Elizabeth's
ed, " That it niu» a just debt, and that Herriot time, aud in alt the king's time; that bis War-
had a power to pay himself, by a privy seal, rants were according to the usual form, and
out of his rent." Ilia lordship denied, " That ! general to all the ports, not knowing thai
he paid 7,000/. of that debt out of the Tobacco | Bristol was exempted by the order in the Lord
Farm, by way of anticipation ; and said he j Treasurer Salisbury's time until afterwards;
only transferred it from the Sugais to the To- j that when Fie knew of it, lie yielded to their re-
hacco, and ju»ti:itd the same; for thut the ] quest, and Guy went away welt satisfied with

king's meaning Has, That he should hare
4,000/. per ami. out of the impost for Sugars,
presently upon his surrender of the Wardrobe:
and the king lost not hy it, for he, the Lord
Treasurer, had, for the disbursements of the
Wardrobe, 20,000/. per aim. which he hath now
settled at 16,000/. per ami. aud yet the king's
state therein maintained aud a noble gentleman
rewarded/' — Touching the slow payment of his
rent, lie denied it not ; but suid, *' He bad
disbursed as much or more, before-hand, for
the king in other matters." — A* touching the
iinpost^not returned upon the exportation of
Sugars, his lordship denied, Thai it was ever
demanded of him ; and attirmed, " thai if it be <

his Answer : and that none had benefit by the
composition, but the king only." The Clerk
lead the Examinations taken on lus lordship*!
behalf, after which,

Mr. Serjeant Crew replied, " That there is no
table in the Custom-House, to shew any compo-
sition for the out-ports ; and caused the Clerk
to read the Examination of John Guy, on the
part of the Lord Treasurer, takeu Alar lit,
1624, which agrees, in effect, with his former
Examination, takeu for the king ; and that after
he, and otheis of Bristol, hud long petitioned
the Lord Treasurer to have their bond cancelled
and delivcied, which they had entered for tbe
payment of the said composition, they could

due, then the fanners are tied hy his lease to uot obtain any thing, save some good hopes and
them to repay it; but if they be not so tied, fair words from sir Simon Harvey; and that
that then he will pay it all, both for the time ! their bonds aie yet detained."

past and to come." And thus ended the Charge
for the Sugars.

The Charge as to Groceries.
Then Mr. Serjeant Crew opened the Charge

The Lord Treasurer aihrmed to tbe Lords,
" That himself knew this Composition to be
paid by the out-ports, and that his warrant
wtts only to levy the same, as formerly it had
leen paid ; and promised to send Barrets

against the Lord Treasurer, touching hi* lord- books and some notes out of the compting-
ship's warrants to levy compositions for purvey- ! house, to prove the payments thereof hereto-
ancc of Grocirv in the out-ports, alter this' fore by the out-ports."

maimer, viz. " Thut the city of London did
compound with the Ling for Grocery : but (he
out-ports refused, especially Bristol, aud yielded
to purveyance iu kind ; aud that Bristol had an
order for this iu the exchequer, iu the time of
Robert earl of Salisbury, late J>»rd Treasurer:
\et, notwithstanding this, the Lord Treasurer
directed his warrants to levy this composition ;

The Charge as to unlawful bargaining for
sir Roger Dallison's Lands.

May 10, p. m. Mr. Attorney General pro-
ceeded to the charge concerning the Omce of
(he Ordnance, and the unlawful Bargain for sir
K. Dallison's Lauds, in this manner, viz. "Thai
another Charge whereof the 1-ord Treasurer

and, although it was not due lo the king, nor is accused, is concerning the Omce of Ordnance,

i • .• i ■ . .i . • i _i_ ..... _ r.i T> ' ■ *• _ y\ n" ». 1 _.. -J- -

any such composition entered into the cotiiptuig-
house, hii lordship commanded their good-, then
in the ports, to be stayed, and not entered, till
u was pa d, or bonds given for it ; and thereby
constrained some ports to pay it, and the mer-
chants of Bristol, who denied it, to attend his

and thi* unlawful Bargain for Dallison's Lauds;
in which wiil appear that the Lord Treasurer,
for his own private benefit, contrived and pro-
secuted divers unlawful bargains; and in the
mean time neglected wholly that which con-
cerned the public, which was the furnishing d*

1933] STATE TRIALS, 22 James I. 1C2 V of the Lord Treasurer Middlesex. [1234

Office of Oi finance with emptions and store*,
Tor tU«-' s.i t" t\ nf the kin^ an<l his kingdoms. —
iTtficeriniiir t. e Uiirg.iuis, it stands proved,
Pint sir Jl-Mjn r I).ili»on. I»eini» lieutenant of
th- < I.- <ni ire, bee une indebted to the kins; in
P/HJ'i'. for monies iiiiprc«»-i> I fir tli'todice,
hut not c npl»yH ; and th it sir Itogcr JXillison
rmd sir Tho. Mouiimhi were indebted to the
Lint; by bonds tn the value or* 3,100/. which
bonds were firfeied fir not bringing certain
stores to th-it oitice ; boih whi< li debts mil tint-
ed fci V\,<.MQt. and the binds of D.i!1mjii were
extended for 9,:>u°,/. and the l:»nd» of Mounson
for:i,l00/. And th~.t July 20, 1» Jac. the kin*;
assigned these extents to Francis Morrice, clerk
of tin Ordnance, and others:, m trust for the
officers and ciedit us of tii.it office, towards
satisfaction of so much of : heir debts. The
Lord Treason r, Leiii£ a commissioner for ids
majesty'* debts, July TMh, lo'il, bargained for
lbu-e extents; and by tl.e article* under hi*
band agreed to give for then 1,06CJ/. in hand,
and 1 '2,000/. im>ie, by 1,000/. per aim. for V£
ye^irs, beginning at Ludy-D.ry, 16 2 3 ; and also
to do his endeavour to pr->c re p lyineut of an
ai rear of 8,0oo/. m »re, due to that office from
his majesty, but l»efore this haigmn wa^ per-
form* d. al Michaelmas fd!owin<r, he became
Loid Treasurer ; and wmn they expected pay-
ment of tie 1,< Hi li. and >ecuiiiy for the rest,
he propound^.! tlut, in lieu of the 12,000*. to
be s.-cund, t'.ey •»' ou.M have b.s part in the
Farms of the i\ttv CuMouis f.ir 9 years, valued
to be worth 1/)00/. ji! r aun. for the two fust
years, and afterwards i,l('0/. pt r ami. which,
according to thut ra'e, hi .iibl Mild in 0 \ear»
11,800/. but com his !.iid->hip uiily I),ioO/. —
He l»eing then Lord Trcar'.icr, on whom they
must depend hoMi t >r tl.e j;i vi::c i:t of the
arrears, and for figure faquir**, tb»y accepted
it; not meaning o lo*e ih« t 1,( 6j/. payable in
hand, hut it wa> then au-iin dii'i ctlv ie»iei.d ihov
should he. ptii 1 tl.rir uV'O"'. aiieu "ii.it of he*
maje?ty's coffers. In 16'.' I, A-Mxr.ni.--t s we;-:
prepared, and the cieiwor-* ic^'iiit I to seal,
bring promistd to have at th.- ^e.hnj: then
8,000/. a i rears, and e\pi ctingtistir 1 otf'j/.fiom
the J^ird Treasurer, wh-ieif thu never c.,n-
ceiled a duubi ; but. so so«;:i as iiuy had
scaled, thev were mmii away without aiiv mo-
ney, being promised to rec.ne the r 8,000/.
wi;hin 3 or 4 day* after, which was- n<i per-
forin vd in no *>l|,,rt a time; I ut w;i«, u''t.*'\\
paid in divers st»v« nA pay me:. is out of Ins
majrb'y'» money ; b. it the 1,06 '2/. which \\as:o
have co»i.e from hunsrlt wa^.ib mutely denied,
the Lord Tr- a.»ur< r aiiirmini:, th-« as wi 1! tiiat
1,06 it. si» the other iVjOi'o/. v\ •* :..l conclude'!
and recoui:" o«-ed by tne inti ic*' i:i \\\c Petty

money 4,000/. due t ■• the office over and beniries
the fiiio.er H,COO/. ofwlddi 4,'HM)/. his lonl>hip
liath since caused to be paid 3 i)0'M. But where-
as the Petty Customs weie valui d to iht-in to
he worth for the fir-t 2 y«ar«. 1,000/. per ami. it
appeareth that, in the two fir-t year-, it yielded
them but 1,410/. 7s. Id. biinjjjall tin 'money
that ureiv due lo them out of toe profits of thoso
farms at Muh-tchmi* list ; wheiea* if t hey had
kept their extent** of Dallisou's and Moo neon's
lands, t ey should have received b\ L tdy-day
la*t almost 7,000/. for part of their debt. In
whit h baipain, (hceidi s i ,e opiM-essious and ex-
tremities put on the po<<r creditors and otfiicrs
of the Ordnance, that mi^ht ill undergo a bar-
pain of so much disadvantage and lo^) are ob-
served two corruptions ; the one, in hargrUning
to pay the 0.000/. arrears, for though that was
agreed btfrehe wasl^ord "I re:^urer,yct he then
was trusted as a commi^ioiicr for the king'a
debts ; and, being after Lord Ti eusurer, pei fbi m-
ed that corrupt apiecinent madi befoie. — Tha
othtr Cotruption was, in agreeing to pay the
other 4,000/. f t as it is a ccrru; .lion in a trca*
Mirer to pity ilur kiug*» due del-l f »r money given
unto hiuivelf; so ii i* to pay the kins^V debt, for
gaining to himself a bargain by wh.ch he cithur
had (>r did expect ad\aiiiage ; and though tho
Lord Treasurer, in his Auawvr, doth preretul he
is a loser by Dali'son's land*%, it i>> ce. tain tiiat
wh:itsoe\cr his gain or h.io prove upon iho
other bargains for the inheritance of ihc lands,
tiii> bargain wiih the odicers, taken \y ii«e;f
alone, was beneficial ; and if it were not, h is
all one*, for if a jnd^c, or tr< asurer, I aifjiu
for a ]jr!be, though he never n ceive it, he is
co:n.|)t; fur it 4::iU not what he b;:d, 1 ul
v. hat he e.imed r-t .ind expccied. — About the
same titjie that the L rd Treasurer bar^rined
lb.- t'.e t \L« ut :. fwri.hu ntioucd, ^i/. '2<l Jidx,
lf) J.-.c. b»: con; ii. "teil wiih si» Tho. Molumid,
fo;- th'..* int eriinnce of the same !and^. — For sir
I?«»;«*r D-iii-ou, afur he became l.cuimani of
the Uidu'.u-"*-, conxtyed th'1 isdieriisiiue of Lis
lauds to M"i:-e :ir Ti, .mas .Mouiwou of divers
;;re:tl deb--. ;*m\ j ..;;.. neu.e; ts ; t. ■ as the inheii-
>am:.? of t'n-re lain! ,, i:fter ihe kind's <\U*itf
wu> in the disrpott «#: mi 'Iho. M.dfiiS'u, ^ ho
harj;iilui d for it v. itii the uuw Loj-ti 1 leasmei ;
and uj)';!! that h.ir.;:.inf the Lord Treasurer
agrecri t.'# \Wr Mr 1 ».o. M« ui:soii*M..v»*n lands o^
the ;-,i00/. cb hi, to pay i'.t .",•-■: "U" in money, and
to procure thr iOi.k:i<:-. o! Im.i «i\ baronets and
s.mie. other lit suit 'ivia the k i r: jj; ; ami wi.m tnc
baronet** c.uh! nl \k' ij'-taiu il, the nu.nl er 1 1»
ing full- 1 lit n, tiie Lord "\v. .'.snivr procured him
another suit of °,o(ko. v lue, J"> h:» lordship
• r.cemcd it, \:/.. For com ■ "Tr.dmji v»ith t:«
; h::»'»» vopvho1 !tr*- of Wak- iu hh to ifalucc their
line.-. !■• i ti-i i'uiv, f.-r whic Me? the LordTrca-

Farni» ; wh'TiUpou a ik w «i> .*:■ rem e «rcw
against them : but. ei t'.r end tin y «i re Mii'm-c- i Mirer wa«» a nil vi .■ iiuni & it - L'li^; ni.'l, for
fd, ill lieu oi th it 1,00'i/. to aucpt. 4if a fuher : ucci m|. :>hii!i ::t <f ilis t:n'j;iiu \u.de lor hii
interest, winch In- hii<l>i i f > hd in the Fcty \ own pri.aie : -iin, Uv ji".i\e way lo tli:it sujr,
Farms, foi an li i!f y« ar af'er t.u- [) \e.»rs wt ie wl.eichy so mac U «iia tw be' taken tor b:s ina-»
•xpircd, C'.teenitd t\«oTh not above 40t>/. to he jtsty, ;«r th« re rrMcd S'lmtii* r baixain t*» be
told : and it was then furt- er .-iT'ecd tlu.t his mmle, tor t.r Tho. Dalle-on, the «ou and heir of
lord-hip should theu puy ihc-m tul of the kim/s sir Uo'_'« r Dailiron.. prct*. nded title to those lundi
VOL. II. ' 4 K

1339] STATE TRIALS, 22 James I. 1G2 1 Proceeding on the Impeachment [1240

but 13,610/. 14s. 21. and a yearly allowance of-,
3,0uo-. retrenching it to that rate from 6,000/. !
and uid sot do. »n a course that this being ob- |
fteived a need I • s-> charge of about 10,000/. per '
firm, should be cut nj'f and this was allowed
buUi by ;fu- lords and by the kiughirmcl?. — The j
e.irl i,; Mi-ivih se\ becoming Treasurer about
iMuh.uMii.it 10:1. and having ton'iuucd in j
that otic e about two tears and a h-ilf, did ob- !
serve, none- ot these establishment?; whereby !
tin- Otiii.i: i-»at t l- pn, >ent Lo;h unrepaired and "
Uosupplird, and the kingdom of Ireland desti-
tute of any considerable quantity of aims and
liiui.i un: tor .( appear-* by the records of t'.e ;
l»nt;\ lece.j.t, 'J hit i<ll the monies which the '
Lord Tre.it* j rer m hUri (.e i-sued I" r a supply of (
the ordi. .ity "J the oilier of Ordnance, was hut .
13,031/. '6i. 11/. of which 0,000/. and odd
pouods was for old arrear*, 3.300/. more grew '
due uf hitler lime, but were paid, not out off
du- Y, or care of ihe puhl:.\ but by bargain and \
Con I. act. and lno.-t of these mnmes i^ued .
(hcide-i old urna:.^ wire for wage* and ai'ow-
antes of olliccrs, and little or nothing for fcL-nes j
and provisions. F r upon the quniter-bo -ks j

{>aid by h.s lordship he inning at the qua ter-
>o<>k ended ultiiiio Junu 1020, unto the quar-
ter ■ boi-k ended ultimo Dtcim ris It/-",!, ihere
bei-t! .ibo.it Ctto- >0/. piid,-l 60u/. and odd the e- •
of went to th( oriictr.-, but the st-ms and pro- ;
vinous <;n uulcd to but NO i/. and odd pound.* : j
a weak suo-lv in so I m" time. — And whtrca*
in April 1021, a f o ttr.itC was made wi h Mr. |
tvelvi) \\)\- serving hi* m disty with 80 lasts of
powder yi-uily, l.y m mthly proportion, at Id >
the lb. wli.'.h p;op<>. ti'll King kepi would:
have\itil d a plintitul »uip!y into ihe otlice
ol'Or.l-itmix", and the ovt rf>Uib mi^ht hate hem
sold -i i o(/. the lb. profit to bis majesty. The
JLoid licu-niiT (thoiJLih lie v.. is cuii inually |
solicited by l.iclyn)did not make the payment,
v*hh li should have been made upon that con-
tract ; v\lu H'by I Aelyn, according to the hb< rty
tha: was uihiwcri by bis contract, sold his
powilir to others: and, in .">j months «fter
that roi.trvet, M-rvt il into tt.e stoits but 1;>
lnomis proportion; an I np"ii breach of this
coutiaei oid Mi«ue ilii-i- inconveniences, viz.
"J li.-.i t' o "t.>rc> which, lor I lie- se.vitc of all hi*
majisty'*. l.iu. diMiifi. mi^hi h.i\e had in readi-
lie-s '.'Oo bistt of powder, and 60 lasts of silt-
pel le win* li would hive r< ally uiudeftO lasts of
iioufh'r mure (in all ii-Ui hist»), are meatlv in-
jmed by tint i.e<;L <t : for upon a laic sum v
thee were in :dl hut 1.M 1-isis in the More*, and
yet Irrliuid >i holly liisfurnithed: and besides, Ins ,
ina'p' ty |«y s.t|c of ti.e overplus of the powder
alo e, abj\e lb,- pr 'portion tt.oiiL'hi tit to he
k« pt by the lom-uissioiiers «d Ti»e navv, might
lia\r li'in. d \\d. in eve v lb. which would hi\c
auioiintid to I (>.'»<)/. nnd ;dj<>\e, all uliHi his
Hisiji *!y I'/fct by :his di 111'. It of the lx»rd Trea-
mrer. ,\im' whereas his louUhip excu-cth these
tliinirs by pretence ofSaflle.'s complaints, it
appeirrth that those complaints grew by occa-
sion of i',vel»n's selling of powder toothers, not
to the kin^: which had ne.tr been if lie had bad

due payment: snd ti.e Leni Treason r ins
warne<l, bo'h b> the 1 rd C:^-* and by tie
com ini^i- l.crs of >be nary, to have sptci.tl care
of thc-e points, io >ave (be co.iUact, it bth.^uf
high cor.s*:;»n uce."

liit pKx fa being tend, the Lord Treasurer
ans wt re.', "I hid need, in the first place,
to pray for patience, s*> irn.th pains bei.g
taken i-y M\\ Atioruey to make me appe.tr n
faulty man." Unto which the L»/rd Keepi r re-
plied, *' That tie turds conceive that tiie»e
w ■ mi s are a « i one done unto tin m ; and lie cud-
ceivt d, that they are a greater unto his lord^ou/,
the Lord Tie.isi.rer who being a ju fge, makes
no di:i'erc nee of a charge. The l^.r-i Treasurer
tmsMurcd, (i Ti.al he is injurious iy deudt ^ dud,
and ihai no peer hath beeii thrirged in diis
pLce before by the king's coun-tl." — And being
(iemunded by the loni keeper, wheieiu be isia-
juriouniy dealt wiibal, be answered * by Mr. At-
toriuy's opening the proofs by parcels, and by
directing parss of the depositioi.s to be read,
whii h si ould have been done wiiolly and toge-
ther.'— 'lh: Li»n!s f'onceiiefl then reives to he
wr. n^cd by tbe>e words, tor that Mr. Attorney
ha.i done nothing but as a>tendaur to the hou^e,
and h\ their liireciion ; and th« retort? the psiucf
ids li^hoos willed hiin (tin J.ord TrtaM.ierjto
clear .Mr. Af.nrnry, or the this aspe sion uill
h^ht v< ry heuw u*k>u hiui. And the house did
acquit .%ir. Attorney for any thin^ i.e had saii
or done 1 trein.

Then Mr. Attorney opetied the heudi of the
Charge again, \iz. The 1st settlement of the
Otlice of tiiC Ordnance, anno 6 Jac. The 2nd
settlement bv the JL^jrd Trira surer S.i lis bury, to.
1017. And the 3rd ^et; lenient by ih- Com-
mis*i »ners ol' the Navy, 16^0. And ttiat the
Loid Treasurer b;id obsei«fd uoi e of them.

The l*ord treasurer answered, as touching
the second settlement, * XaM.ici! bath beta
doiio upon it to this day; and \t: u was nuaie
•1 years before he was TreaMirer.' A?» touching
the 3rd settlement, ' It was propounded only,
and opposed, but neter allowed; if allowed, it
was 13 inoiiihs before lie was I'rea^uter, and
yet nothing done in it, us by Cook's own oath;
That he had no privy seal for it. Ami how
then on hi be charged for the breach of that
si ti lenient w Inch was ne\ er settled ? but he will
not giie that for Answi r.' And then his lord*
ship aminied, ' That the stores are furuMied,
and that he had paid all the said < rdmarv of
3,000/. per aim. sate f, (>')/. though no privy-stal
was i-sued out upon il.at book prcs< nr«d by tU
ComtnissiouMK of the Naty; and paid divers
other sums of money forprovis'oiisof iheMon-s;
wheieof his lordship recited tie particular
sums : and whereas that oftice was unsettled by
sir Kn£er Daliison, he, being a Cmnmi»*ioner
for the king'? (h l»t<, found due to tie oroceri
18.000/. and caused 13. (KM)/, of it to be paid
by Ua'iiisou's lauds, m>d the rest to be paid
a No afitrwards; so that a small sum will uow
settle that nrlice, which was then to unsettled.'
—As touching the powder, * Thai when he
came to he Treasurer, he found but 116 JasUtf

1341] STATE TRIALS, 22 James I. 1624 of the Lord Treasurer Middle***. [1243

powder, whereof 21 lasts, delivered by Evelyn, make concealed Wardship*, and may takeaway

wire left impui'4 for: ami t.iut he paid him mean processes due to the king tor want of

2,0i>0/. arrv..r*: iliouigij 00 I'.ims of sal: petre be livery; and mtiy antedate tenders, continuances,

out in tin Lm^V store.*, y< t ti.eie «s so much in and petitions; by reason whereof the king may

Evclv.i') wai- hi. use; and ihew it is the kin/*. ' l>e prejudiced great sums, by preferring one be-

Neitiu'r can t;-i i:»>i£; receive vu.h detriment or tore another by Ward-hip*."

loss; tor wli. ,; l.v lyn i-, paid, he is to make ul- | This being said, tlie clerk was directed to

loum

firmed,

than

lor win .; i.v iyn r, paw, ne is to idhkc ui- i dis oeing saia, tne cierx was airecrea to
net o: it., powi.i ;■ bv tiiiu sold.9 And »f- re:id the Proofs And for that, in opening of
:d, * ii.«:t in- huii paid in-.ie lor ponder j tins Charge, the lord kteper delivered to the

was paid io. 7 years Iknoi •;.' lords a message from the king, viz. " Thut th#

The Chaise as to the Court of Wards.

Mr. .So j ant Crew next opened the Charge
of the Court of Waids, mi. '* That whereas,
in Dec. 1018, Instructions for the Court of
Ward* weie att out, (upon great advisement
with i he lord chancellor of England, the two
lt>rri chief justices, and the offic< is of that court)
the Lord treasurer, hy his importunity and
powtr with tl e oliicers, a.d by his niisinfonua-
tion to tlie king, (wa ting a reference to difers
lords of the council) procun d those instruction*
to be aiteied. to ths prejudice of ilie kin-, and
oppression ol the subject. — For, by the firmer
instructions, anno 1G18, petitions for Wardships
were to be delivered to the clerk of the court,
who was to enter them without tie: hut, by
these instructions, anno 16V2, the petititins are
first to be delivered to the master, to the end
he m;iv subscribe his directions, and then the
roaster's century ro make entry thereof the
same day it is delivered, and return it to ti e
suitor, who is ro pre*, nt it to 'he cleik, and the
clerk to enter v wi hout he.— So the clerk of
the court stands still i<straim-d by these latter
instructions to tike an* t\ c> lor entering of pe-
titions, hut the master'* sccrct.irv is not re-
strained; and, lining unlimited, hi- huh taken
great fees lor entering o*' tlusr peti'ions. — And
whereas, by the former instructions, nnno 1C18,
•11 tenders and continuances of liveries were to
be iniide unto the surveyor of that court: now,
by these hitter instructions, tlicy are to be made
to the master first, and afterwards to the sur-
veyor ; whereby the fets lor emit nuance of li-
veries axe raised from 1(X the term, to 20*. the
term. — And wherris, before, no ward was es-
teemed a concealed ward, unlets no suit had
been made withm iJ years after the death of
the tenant : now, hy these latter instructions,
the muster hath power, alone, to dispose of
Wardships concealed hut one year; so that tlie
coaster may make any a concealed ward, by
concealing the petition, and not entering it with
the clerk ; tlie petition being hereby appointed
to be dc leered to the master first.— And that
the master of this Court of Wards, the Lord
Trea«urer, hath committed unto his secretary a
Stamp of hit name, and hath hereby put his
own po^-er into the hands of his secretary : for
his secretary hath used his stamp, in the ab-
sence of the master, for signing of tenders and
continuances for warrants to the great seal for
liveries; and warrants to find offices, for prints
of wardships, leases, indentures, and the like ;
■nd for expediting of judicial acts in the court :
and that this stamp may be a ready way to

alteration of tJtt selnst ructions was debated be-
fore his majesty at Wansted, hy ihe master
and officers <»f tuat court; and that his majesty
understood that the alteration was for the
honour and profit of the master, nnd in-
tended that the master should enjoy that office
as amply as the earl of Salisbury, or the lord
Wallingtbrd : hut if any new fees are exacted
since, his majesty disavows that'; and if the
master hath used the new Instructions to the
prejudice of the king or subject, he disavows
that also; but allocs hs precise knowledge of
the alteration of the said Instructions."— There-
fore no Examina i-.ns were read to prove the
Lord Treasurer's impoit unity and preisure to
have those Justiuctiutis .dteied.

The Lord Treasurer's Answer.

After the other Examinations were rend, the
Lord Treasurer answered unto this Charge,
" That he is not to be blamed for putting his
office into such plight as it was before an en*
croa hment. As touch inn his secretary's fees,
as he is not restrained, s > n 'thing is allowed ;
and if he hath exacted any thing, his lordship
w ill he the severest ceusurer of him. He never
heard of any till now. That tie secretary to
former masters rect ived whatsoever any man
gave voluntarily, so it was lawful for his. — As
touching *he Fee 'or Continuant s, Why should
he lose any thing due for a favor to the sub-
ject? hy th s mean* there he fewer Coq-
tiuuancis; and so the king has his niomy the
sooner, and the pirty is tree for the subjects
suit the sooner. — As for conceded Wardships
within a year, it is beneficial 'o the king;
otherwise, within 3 years, the ward might die,
and the king lose the wardship. Neither hath
the master such power, alone, therein by these
new Instructions: he is only trusted with the
direction unto whom the concealed wardship
shall he granted ; the composition is led to the
council board : but it is not shewed that he
ever made one concealed wardship. They say
this may be done, but do not shew what was
done amiss." — And his lordship justified,
" That these new Instructions weie mf»re bene*
ficial to tlie kin? and subject than the former,
and not prejudicial ; for as touching the peti-
tions, if the ward happen in a vacation, the
petition must be delivered wihin a month ; if
to the clerk, perlmps he is out ot town: now
thev are to be d« live red to the master first, and
he may direct the finding of the office in the
intei im ; but it is of no foire till the petition be
afterwards entered by the clerk, and composi-
tion is made by all the officers. Indeed the

1243] bTATE TRIALS, 22 Jams I. 1C24.— l*roceeding$ mi the Impeachment [1*44

otticers yielded, hardly, to the new Instructions ; 1
because they had, by the former, shared the
masters power nod authority among them-
selves." His lordship confessed, " That he
yielded to have a Stamp made by the prece-
dent of the lord Burleigh's 8 tamp: which, he
said, he could not prove but by hear-say : and
Stamps are used in die Subpoena Office and the
Outlawries. And that it U no more prejudicial
to commit a Stamp to his secretary, thao it
bath been heretofore to leave the seal with the
clerk. Neither is it shown that this Stamp
bath been to the prejudice of any man, the
same thing* that were stamped, being to pass
other onictrs either first or la**."

Before the Lord Treasurer was withdrawn,
the earl of Carlisle remembered their lordship*,
That the Lord Treasurer the other day, had
charged him with 3,(XX)/. given him ; whereas,
about 12 mouths after the Lord Treasurer was
made master of the wards, his lonUhip paid the
earl of Carlisle 3,000/. in part of 20,000/. iiiven
bim by the king. And whereas the Lord Trea-
surer spoke of the vast expenccs of the ward-
robe in former times, the earl of Carlisle said,
That the ex peaces grew so threat by reason of
the extraordinary charges tlu n happening ; as,
by the queen of Bohemia's Marriage, which
cainc to 00,000/. alone; for furnishing divers
of the king's houses: for many rich presents
tent to foreign stales ; for the king's voyage to
Scotland ; and the like.

A nd the cai 1 of Denbigh, now master of the
wardrobe, shewed, That he cannot get any al-
lowance for the extraordiuaries of tliat office
from the Lord Treasurer. — W hereunto his lord-
ship answered, ** That the king referred uuto
bim the earl of Denbigh's demands of the ex-
traordiuaries, wherein his lordship was unwilling
to meddle, for he could not conceive how they
eould amount to the sum demanded." And
as touching the earl of Carlisle, " If he had
said that he had civen him that 3000/. he did
bis lordship wrong, for he had warrant from his
majesty to pay it."

And- then the Lord Treasurer desired he
roi^ht be heard to clear some words that might
pass from him this day, where it is reported
that his lordship should say, That he had un-
chiistiao dealing: " He meant it not by their
Jordships, whose dealings Ire acknowledged to
be to him both just and honourable; but he
meant it by the king's counsel, who have dealt
so unchri>tianlv wiih him, as to make white
black, and black white :" and humbly desired,
" Th.it this his acknowledgment of the justice
of the house might be accepted of him, and to
be understood only uf the king's counsel." And
said fuither, " That he had precedents, that he
ought not to answer in this place, (at the bur)
and that he ought to have counsel ; and pray-
ed tint the next might not buffer by his ex-
ample."

The Lord Treasurer being withdrawn, the
bouse agreed, That he should appear here
again to-morrow at 0 of the clock ; and Mr.
Maxwell, the gentleman usher, warned him to

appear accordingly. — Tbe lord keeper cleared
the proceediugs or the king's counsel in their
several Charges against the Lord Treasurer;
and the house gave them thanks for their fair
carriage therein.

The Lord Treasurer's general Defence against
the whole Charge.

May 12. The Lord Treasurer being at tbe
bar, and being admitted to speak in his own
Defence, his lo.dship fust repeated the several
heads of the matters wherewith he is charged,
viz. 1. Touching the \\ nrdrol»e. 9. touch-
ing two Bribes rec< it ed of the Tarmeis of the
Customs. 3. Compositions of toe Our -Pons
for Grocery. 4. The Otticers of the Ordnance.
And, 5. The Court of Wards. As for tbe
first, " That his omission of an account in tbe
Wardrobe did neither add to nor diminish tbe
charge the king was at : and that, al though ha
lord -hip omitted to serve some of the lord cham-
berlain's warrant, amounting to a matter of
700/. yet he had laid out, in the Extraordinaries
of tli at office, which he was not bound to
do, ahout 0,000/. and that the good service
which he had done his majesty in that office ■
well known. Touching the two Bribes, termed
' disguised Corruptions,' howsoever the farmers
of the customs pre en ted the same, he could
not know their thoughts but by their words sod
deeds. And his lordship protected, that he re-
ceived the same no otherwise than for his in-
terest in four 32 parts of the Great Farm of
the said Customs. As touching the Lease for
Sugars, he will say no more than formerly bt
had spoken. Nor, for the Compositions for
Grocery, save only, That his lordship bad seat
Barret's son unto Mr. Serjeant Crew, to satisfy
him that Barret had formerly colh cted the said
compositions, by virtue of the warrant of former
Treasurers. As touching the Office of tbe
Ordnance, his lordship would speak no more
touching the provision for arms and gun- powder,
than-he had done. But, as touching Dallisoo'i
business, his lordship said, It began originally
before he was Treasurer : he therein settled tUo)
king's deb,t unto the officers, and hath parted
with that estate, which he had from them -in
Dallison's lands, wishui a month after he wsi
Treasurer ; yet, if the second bargain made
with these officers prove not as beneficial to
them as the first should have been, they have
his word to make it as cood ; which lie would
perform. And bis lordship further preferred,
That any one should have Dallison's lands again
at a farle*8 sum than they cost him. 1 hen be
desired their lordships to take into consideration
his disability to answer, and the ability of tiiose
that did oppose him ; and, if he had beeu as
well able to speak tor trims* If, as they dial
spoke against him, he doubted nor but that be
should have given their lordships very pood sa-
tisfaction. His lordship spake much in excuse
for tho»e matters complmntd of agaiitet nun
as L)nl Ire i surer, saying, That the Ling's ne-
cessity and want of money was the cause of
much thereof. lit acknowledged, That the

1345] STATE TRIALS, 22 Jambs I. I Ml.—qfthc Lord Treasurer Middlaer. [ I24G

king had been a good and bountiful master
unto him ; and avowed, Ttiat he' bad been a
good and faithful sen- ant uuio his majesty, not
for impositions, for, those two only excepted,
which are presented by the commons, he ever
stood against them, deeming them a partition-
wall between the king and the subject. That
his service bits been in reformations, viz. Of
the houshold ; of the navy ; of the wardrobe ;
and of the kingdom of Ireland ; which are
things of fiat nature that they beget enemies;
and if, in doing service to his majesty he liath
procured to himself many enemies, their lord-
ships will not impute that to him for a fault. —
His lordship also affirmed, That he had done his
majesty good service in the Palatinate, by ad-
vancing the exchange of the king's money thi-
ther, wherein he saved the king 60,000/. And
affirmed, That he had advanced the profits of
the crown at least 80.000/. though not hy Im-
jxttitions ; these he meddled not with, the other

surer, for not entering into a book of Accounts
the warrants and ewptions, as lie ought to
have done, whereby the settlement and antient
institution of that oftice is altogether broken;
and for not serving the warrants directed unto
him for the king's own person, though he was
ofien urged thereunto; nor paying divers of
the creditors for such stud as they served in,
although he received 90,000/. per ann. by way
of imprest, for the ordinary charge only of that
office ; which a far less sum would have fully
defrayed ; And lor that he had not performed
that good service, which lie pretended unto his
majesty, but, under pretence thereof, had pro-
cured to himself great and large gifts from his
majesty and pardon of divers great sums of mo-
ney. And the king's counsel having satisfied
their lordships, That the said pardon to the
Lord Treasurer did not pardon his lordship's
not accounting; the house was resumed, and
the question put ; " Whether the Lord Trta-

two excepted, and they were agreed unto hy ' surer, for his carriage in the office of the Ward*
the council-board. The ships indeed were in | robe, be censurable, or no ?" and it was agreed,
the river, but the vintners were sent for, and nem. diss. *' To be censured."
made to pay what was imposed on the mer-
chants. That he offered to pay the arrear due

May l'>r p. m. Mr. Attorney read that

part of the Charge against the Lord Treasurer

for Ireland, a third part from tie one deputy, ! which concerned his taking of 500/. of the

and the one half from the other ; wherewith
he acquainted his majesty and turned it all to

fanners of Wines and Currants for a Bribe, and
500/. of the fanners of the Great Customs, for

bis majesty's profit. That he hath been a judue a Bribe ; and fur exacting I00/.ol the said farmers
these £Tyears, and no complaint brought against j of Wines and Currants. And their lordships
him for Corruption or Bribery; which he hoped ' took into their consideration the Lord Trea-
vtould weigh much with their lordships." Aud : surer's Answer unto the said two Bribes, viz.
as for the offence taken yesterday against " That he accepted of 1,000/. paid him, at one
bini, touching the king's co tinsel, 'whom he , entire payment, by the farmers of the Great
ever loved well, <4 He knew them to he of that , Customs, upon a bargain of his four 32 parts of
loving nature, tli at he doubted not but that, the Great Farm." And it appeared plainly unto
they would impute it to his rashness, and for- them, hy the examination of divcis witnesses,
give him. Then he craved pardon of their ' as well of those taken ' ex parte domini re-
Jordships, if he hud omitted any thing, or j * gift,* as of those taken ' ex pane d., mini thc-
gpoken ought that might discontent them ; and 1 ' sunrarii,' that .r)00/. of the said sum was given
so, with'humhle thanks for their favour to him, , t; the farmers of the wines and currants, called

he concluded his speech."

The ljord Treasurer having ended his speech,

the Pitty Customs, to procure his lordship's
warrant for defulkntion of 1,000/. per ann. of

lie was answered by the lord keeper, "That! their rents, for 9£ years, in recompence of their
the council-table disavowed the Imposition oil loss, according to his lordship's farther agrre-
Wines 40 begin fioin thtin ; it came from his ( mem with them on the king's belialf, upon his
lordship as belonging to his place of Lord Trea- j majesty's reference unto his lordship, aud that
surer: the matter was his alone ; the manner j the other COO/, was given, by the farmers of the
also was contradicted by the rest of the council, j Great Customs, to procure his lordship's war-
ibr th«t the merchant ships were then in the ! rant unto the king's remembrancer, to take se-
river; only they gave way to it. upon his lord- curitv for payment of the rent to his majesty of
ship's undertaking that ihe merchants would ' the i patentees of that farm, in lieu of 5 part-
yield thereunto, and that they should be no' ncrs who had relinquished their parts therein :
vray prejudiced thereby." W hereunto the 1 and that his lordship had not reserved to him-
Lord Treasurer replied, "That this was no ' self any parts of the said Great Farm, as his
part of his Charge." : lordship pretends ; and if he had, it had been a

_,_.,. . ' great dtvrii unto his majesty for the Lord Trca-

The Lords take into Consideration the several "slirerof Knalniitl to contract witli others forjiis
Articles of the Charge, aud the Lord Irea- ro..jeSlv\. f ustoms, and seemly to reserve parts
surer s Answers. therein unto his own benefit; and when, as his

The Lord Treasurer being withdrawn, and the \ lord?hip affirms, tlutt he received the 100/. of
house adjourned, ad libitum, Mr. Attorney ■ the Farmers of the Wines and Currants, for a
General read that part of the Charge against ; new-year's gift, it appeared also by the exami-
the Lord Treasurer which concerned the Ward- ' nations, 1 hat the said la.mc-rs did present his
robe. And the Lords having duly considered lord-hip with a tun of wine for bis new-year's
«f tiie crimes objected against the Lord Trea- gift, and his lordship exacted the 1001. of them

I

1247 J STATE TRIALS, 25 James I. \62l.—I>roccedi*gt tm the Impcaelmait [1245

afterward*; whxh divers of tooir lordships hon>ehe"« gn suned,it wis put to the q'i*s:ion,
conceive to be extortion.' Ail which being " ^ lieim-r the Loid I rea-u:er »r.ad be Ires of
fnkly discussed, the house was resumed, and the c»n-u:e, in this ■ hnr^e of (jr/cery, or nor*
question wa-put, " W Ik.- tin r, upoi lids wlrde A"d agreed, " io Le rref-d."'
Charge, the Lor I In as rer be censr.rabl'*, or Ti.e h-.i^c be.ug ao» -4.i u^j -urr.'d nd lilitum,
BoV anu h c reed generally, '• To be censured.'* Mr. Alt r ey tenerd read :n iil.rr part nfthe
'I be hou-e being agai i adj iiinn d 'V Jut urn, Lo.d lieavi e A I "i..in«\ vii. fhe clinr*?- igj ust
Jdr. Attorney General read that part of the h:m by'ie 'iitice s of tb< Ord ,t.:c . Ar.d
Charge against the L -rd 1>. asnrer. wh ch con- t t-eir 1<> d-hip«» Irt.in* fnliy di«» i.s»r ' t -e cre.it
cerned his pr curing of lierriot to surrender neglect of the Lorn i >aaurtrtii ;-«•.:* the k:n£t
hi* lease of the farm of S ^gar*, which be held moii y rbr the fn nis'iiiig of tic i;mg*a sto.es
fit the rem of 10,000 m/.i*9 per an i. to hr oi munitions. u,t:i amino- a '(I jnv^er; and
king, and fir pr.cunn: a new hra^e thereof ill it yet he pud the .irrear *»•" <ie*.»?« m lot
immediately to two of his lordship's stn.nt , othce \<>r hi own p-.rth ..ar profit u; <::i :i c-w-
to his own use, at2,(XK>/. per ami. a. id for Jc- trict with the *aid olbrers: and h:.vi:is con-
nying tne merchants, upon their < xportuti <n of >id- red his b,r sin. '•> g/e: 1 mi*d« n>e?n«-.- :rj the
augait, the nni o-ts paid therefore upon the iin- bargains tor the *nH l.«.n - or st R j e O • i -•»■
portati>in, as i.it lordship ougl-t to b iie done I y evtend d tor that debt ; .i:id •■ «> Iorc> /» j n>
the dirtCiions of hi>> m 'jelly's letter* p-itent -f poundms, for part of njy • eni ti.'. • i!. the tint-
the 5th of December mm 8 Jac. — Upon r ad- ing of bi.roretsanJ a -nit tor compounding with
ing whereoi the L'»rd Keeper signified *o th< ir tiis majesty's copy oldcrs ot W:aketie'd. Aod
lord»hi|>s, Tha: be had ieceived a me^S'tgc from hii lordship's un-wer, " Tint . e piefe:red this
the king touching thi> < hnrget viz. *4 ICat iis suit unto he mi<:, in pity uf *ir lho. .\iouo-
in jesty did f;eei> §ive iimo die Lo:d Tr'_» lsurcr '. son's tst^ie, a iii.in hireiofor** of c«»od account
4,000/. per aim. out of the Mid I- a*»e of >.ugs»r% ■ in hi* count! v, ;<ml n tw dt-cuyt •! ;" wlnchthiL'
the same io l>e^in presently af'er the date | lordsi.ips thought mo»t sonlid lor a lord Irea*
thereof." — Ti«eir lorUdiupb takintiinto couanler- i surer to make u»e >:f to his own henttit : -\nd
ntion, tliat this was the kind's fiee ^ 1 1 1 , they did j it api eariiu unto their lordships. Thai the said
n<»t think it tit to censore the Lord TreiMmr i/>rd Treasurer had set on fo 'tan old outLiwrr,
for the s'irnc; a'thougb lis l«>rrj^hip had unduly npun a debt lone time since p-iid t«y the said
inlormed hi* majesty of pood s rvice^ d<Mie in | sir IWer J.):dii»on; and that his lonMiip up^n
the otlice of the wardrobe, v\ Lich his lordship | pntenco of a deht to ibe ki-u vbere tli< re «ai

performed not, for which thi> lease of cugars
was civeii him. Ncitlu r did his lordship in-
firm his iiKijes'y (for ought up peers'; that a (U bt
of 7000/. wus inslal-ed uj-on t'.at base; the

none, procured a revoc;it«;n of leiiesol ad-
uiiui-tration granted of sir R« jrer i>«iiii»n^
uot:(l>; and had written his lei ft i to ihejul<;ei
of the common plc»s f»r tlu- cimnton.inii'^cf

uhich his lord.ihip tr.in-ferr« d to the farm of this indirect c •ur«e,to wr; Nt the s lid len*e fri-ra

tohncco. — And as toiichiii; the denial «d the
ini]Hi>t unto tint inci'dnim*, tii on ti,c fvporta-
lifiiifif Miiiar*, for that in* l<firi«lnp aihrui^, Th.it
the u ndrr-ffi nner* nf ll.e ".dii su^nrs from tiim
nre li;il»le to the re-payment ot l\\<i said im-
posts, if any be due, their lnrdsi-ips did not
think it tit t i cciMire the Lor.l Tieasurtr for
the same. And the hosi-e bein^ re-unii d, 'he
question «as put, '• Whether the Loid lrea-
surrr itli.iil b(*fieed ir^m nnv censure in this )
particular charje, or no r" And %•. neralv agreed,
"To be fired."

The house was aiiiin adjourned ml libitum,
imd Mr. Attorney General lead chat p.ut ot
the chui'je N::.iiusi the \mv& Tre.istjrer, ul.icn
conrtrn?! the composition for grocery wan*
in fhr* cilv of Bristol, wlrch esiv had ivIuml!
to yi'dd iiiito any composition h»r t e n.mie ;
and yet the J-urd TreaMin r h;.d givi n w:irr;uil
It) ler\ tlie iiiine n«: um»: their w:il , an. I lo "t.iv
t!;e e?::tiTiiis* of tbfii Uijodt until ihe s\'iie was
paid accordiuuiv. But t<»r th:U it nppe ired,
liial t! t- J-oim Tre-isurer l)^i>c;\ ItUir, c ;.te.l
lt^iO, f »r h vying the s line ciMiiposiiiiMi, n^rei-th
Hitb i lie biter written bv thi^ Lord TieasuuT;
and for th-tt diver> of Bristol hr«.d paid the hkr
compo«>ii)> n : and lor that it d:d n<>t ap. ear
that the L inl Trejisurer did thereiiy se>. k nnv
bcuerit to hiaiself, the lords did not thi.tk him
fn to be censured for the same. Whore lore the

the s.inl sir Kd. Mnith and sir John Daw, for*
ineiiv ur.iiite.l u.to ihein bv the -aid sir Ko^er:
Ail ti.;^ bciiig fullv riebu'td. !!• Inai*e w.i*rc-
^umed and it was put to the n,ne-'i>»n. '* Whe-
ther the Lord Treasurer be won by of ce-we
in regard <>! ihi* whoir charge, both lor thf
three bar<::ii-i% and for not supplying. r»:eo!firt
of rbr Or inance ?" and s^enerally ^gtt^d "To
be ct retired. '*

The hou^e was jr^.iin adjowrnoil it. I libitum,
and Mr. Aitorm v read tia; ie?t of the r"ii.:r;e
tn;:iiiibi the Lord Treasurer toot hing thu Court
of Ward-. And tlw.ir loro'ships con-idi-nns.
thai it was not proved by the examinatiun ot
wittuSM."*, ihat the secret iry was ap])oi:it*d to
t-ike :;iiy fees h\r the -aid j-r-ritiiins, uiliitr fjr
l.imsel: or f-r the Lord i lva-uer; i-ordit
the Loru Trea-uier had made nv beiierit tu
himself lor c-iiicdtd ward- by \iriue »1" d*
said ne.v iii-triiv.li-)ns ; Theiefore tb i. I rdd»]»i
I'.oi'^iit h:3 loriislnp not c« u«-«raldi' fur 'li a
two poiii s of hi- cIktlv. But ;:«» r:.-.»ljii:i
t:.e <lo hl<ij of \\-t s of i-onTiii'.-iiiLe? of iiwMN
*be\ thou^ii' lii-» Iord>hip wui(hv to be c e" »,,r-
ed, both in respect oft e trievance o: i.tr s-jIh
ject. and of hi- lord-hip's answer m to tl.P
same, vi/„ '• It i* ibe king's face to the propyl
ler them pay for it.*' And for ilmt hcdchvrr4
a stamp, unt i his secretary, w her. by he com-
mitted the great trrst, reposed in baA I* ^

1949] STATE TRIALS, 22 James I. 1624 — of the Lord Trttuurtr Middlesex [1350

•

majesty, unto his servant, not deigning to sign
the petitions, liveries, and warrants, to the
great seal, with his own hand, their lordships
thought him worthy to be highly censured for
the same. And thereupon the house being ie-
somed, the question was put, " Whether the
Lord Treasurer deserves a censure upon the
whole Charge or no ?" and agreed, nem. diss.
" To be censured for the same."

May 13. The lords ordered the gentleman
uaher and the Serjeant at arms, attending on
that house, to summon the earl of Middlesex,
Lord Treasurer of England, to appear presently
before their lordships. The house being ad-
journed ad libitum, the clerk read the heads of
the six Charges against the Lord Treasurer, and
the six several votes of the house which were
yesterday past upon the same. And their
lordships having duly considered upon the
proofs of bribery, extortions, oppressions,
wrongs and deceits, objected against the Lord
Treasurer, found the Mime to be most appa-
rently proved. Andy as to the allegations bf
the Lord Treasurer of his good and profitable
services to the king; in the reformation of the
king's household, of the navy, of the wardrobe,
ana the kingdom of Ireland, their lordships en-
tering into debate thereof, it was made mani-
fest to them, by innny particular* then declared,
That, as touching the reformation of the king's
bousliold, wardrobe, Ireland, he, the Lord Trea-
surer, had deserved very ill or' his majesty, and,
as touching the navy, though his lordthip was
Hut a commissioner with others, who were
more skilful, and did more good than he, yet,
he assumed to himself the whole glory thereof;
and his manner wa* so to do, in all other busi-
ness wherein his lordship and others were
joined.

The Lords also considered of the Lord Trea-
surer's allegation of his advancing the exchange
of the king s money, sent to the Palatinate, for
payment of the king's forces there ; and it
appeared unto them plainly, That his services
therein deserved no such respect, as his lordship
assumed untohiniself; the soldiers of Frankeu-
dale being yet unpittd. I hen the house being
returned, the fim question wo* pot, 1. " Whe-
ther the Loid Treasurer, in regnrd of thtse
misdemeanors proved against him, shall lose
all his offices which he holds in the kingdom,
or Bo?" It was unanimously agreed, " That he
should lose them all." 3. " Whether the Lord
Treasurer shall for ever, hereafter, be incapable
of any ufhee, place or employment, in the
State or common-wealth, or no ?" Agreed,
" That he should be incapable of them all." 3.
" Whether lie shall be imprisoned in the Tower
of lxmdon, during his majesty's pleasure, or
no." Agreed, "For Imprisonment. 4. u Whe-
ther the Lord Treasurer for these offences thall
pay a fine to the kine, or no ?" Agreed " to

Sy a fine." — Then the house was adjourned ad
itum, that the lords might more freely discuss
ivhat fine to impose on the Lord Treasurer.
And, being resumed, the fifth question was put
Vy the lord keeper*. $. " Whether ^ fine of

VQL. lit

50,000/. be sufficient to be imposed on the Loid
Treasurer, or no ?" Agreed to this Article. 6.
" Whether he shall, hereuiter, sit in paihamcnt,
or no?" Agreed, "That he slu.ll never sit
again in parliament." 7. " Whether the Lord
Treasurer shall come within the ver^e of the
court, or no ?" These questions being all put
and agreed to, the whole censure ngaihst him
was drawn up in form, read by the lord keeper,
and passed by a general vote of the house.

Sentence against the Lord Treasurer.

Then a Message was sent to the Commons,
That the Lords were now ready to give Judg-
ment against the Lord Treasurer, if they, with
their Speaker, will come and demuud the same.
Ansv\ lhat they will attend, presently, as the
manner is. Accordingly, the L*>rds being all
in their robes, to the number of 62, the Lord
Treasurer was brought to the bar, by the gen-
tlemun usher and the serjeant at arms ; when
his lordship making a low reverence, kneeled,
until the lord keeper willed him to .«tand up.
The Commons came in with their Speaker, and
the serjeant attending him let down his mace,
when the Speaker addressed himself 10 the lords
as follows:

" The knight*, citizens, and burgesses in this
parliament assembled, have, heretofore, trans-
mitted unto ymir lonUhips several offences
against the ri'jjit honourable Lionel, earl of
Middlesex, Lord High Treasurer of England,
for Bribery, Extortions, Oppressions, and other
grievous Misdemeanors committed by his. lord-
ship ; and now the Commons, by me their
Speaker, demand Judgment against him f »r the
same."

The Lord Keeper answered, " This high
court of parliament doth adjudge, That Lionel
earl of Middlesex, now Lord T; easurer of Eng-
land, shall lose all his olfices which he holds in
this kingdom ; and shall, hereafter, he made
incapable of any olftce, place, or employment
in the state and commonwealth, 'lhat he
shall be imprisoned in the lower of London
during the king's pleasure. That he shall pay
unto our sovereign lord the king a fiue of
50,000/. Tliat he shall never sit in parliament
any more, aud that he shall never come within
the verge of the court."

May 14. A committee of lords was ap-
pointed by the house to attend the king, aud to
acquaint him with the Judgment awarded by
the lords again &t the earl of Middlesex, and to
desire his majesty to take away the staff and
the seal of the Court of Wards from htm.—
Ordered aho, " That the king's counsel do
draw up a hill, and present the same to the
house, to make the lands of the earl of Mid*
dlesex liable unto his debts; unto his fine to
the king; unto accounts to the king hereafter;
and to restitution to such whom he had wrong-
ed, as shall be allowed by the house." Which
bill afterwards parsed into a law,

Lionel Cranfield, earl of Middlesex, who,
from a low bepnauig, was, for his eminent qu*-

H

It51] STATE TRIALS, 22 James I. 1021.— Proaxdi^i cm the Impeachment, fr. [lift

lities in mercantile affairs, raised to that tide, ' Manchester, and, after the death of Worcester,
and to one of the highest posts iu the kingdom, he was lord privy-seal.

was ton of Thomas Crau field, esq. ; but was no ! " One of king James's own chaplains, preach-
more thuu a Lou Jon merchant himself; and ing befoie him at Greenwich, took this text,
be in;; bre<l up in the Custom lio'j*c, was looked , Mat. iv. 8. * And the devil took Jesus to tht
upon as a lit in»trumcnt to detect the frauds . * top of a mountain, and shewed him all the
in those oticer*. The kin,;, m Irs last speech * kingdoms of the world, saving;, All the»e will
to the lords, has given us an account how he * I give/ &c. He shewed what power the devil
was introduced to coujt, and by what steps he had in the world at that time, wheu he spake
rose to the height he so sud'lcniy fell from ; and, these words ; and from thence he came down
by "hat hi* rn»j< »ty hints, in that speech, there to the power of the devil now. And dividing
iniiiht probably be much malice and envy in \ the world into four parts, he could not make

his prosecution. Mr. Rapin charges the prince
of Wales and duke of Buckingham ui'h a con-
spiracy to ruin the Lord Treasurer, for refusing
them, at times, the exorbitant sums they de-

the least of the four to be Christian; and of
those, how few went God's way ? bo that hi
concluded the devil to be a great monarch,
having so many kingdoms under his command;

inandcd when in Spain : that they made .use , and no doubt he had his vice-roys, council of
of their credit with the parliament for that state, treasurers, secretaries, and many other
purpose, and caused him to be uccu»ed, by j officers, to manage and order his affairs ; fur
their crearnres, of mismanagement in the dis- ; theie was order in hell itself; which after he
charge of his office. This hint our author has • had mustered togetlier, he gives a character of
strongly improved from Wilson mid lord Cla- every particular othcer, who were tit to be the

rendon : the former says, "4'he duke of Buck-
ingham, remembering how the Lord Treasurer

devil's servants ; running through the body uf
the court ; discovering the correspondencies

repined at the monies spent in Spain, and his with Jesuits ; secret pensions from foreign
comportment to him since his return, resolved i princes ; betraying their masters counsels to

to bring him down fro>n that height he had
placed him in." And the latter, ** That the
king was against the prosecution of the Trea-
surer, by an Impeachment ; because he fore-
saw, tiiat those kinds of parliamentary pro-
ceedings would shake the royal authority, in
the choice of his own ministers, when they
should find that their security did not depend,
solely upon his own protection ; which breach,
adds the liable historian, upon his kingly power,
was so much without a precedent, that, except
one unhappy one, made three years before, to
gratify likewise a private displeasure," fiord
Bacon he means] " the like had not been
practised in very many years. The king told
the dukp, ' That he was a fool, and was making
a rod for his own breech ;' and the prince
that he wool Hive to have his belly fid! of par-
liamentary Impeachments." See History of
the Ueb'jlliu:i, volume 1, folio edition 170},
p. 20.

" Sir Henry Mountn^uc, lord chief justice,
(as the iv ports of those times lively voted; laid

deserve their rewards, working and combining
to the prejudice nf God's people. And wheu
he came to describe the devil's treasurers ex-
actions and gripings, to get money, he fixed his
eye upon (J ran field, then Lord Treasurer (whose
marriage into the house of fortune, and title of
earl, could not keep him from being odious to
the people) and pointing at liim with his hand,
said with au emphasis, * That man (reiterating
it) * That man, tint makes himself rich, and
' his master poor, he is a fit Treasurer for tht
c devil/ This the author heard, and saw, tvliiirt
Crautield sat with his hat pulled down over his
eyes, ashamed to look up, lust he should find
all men's eyes fixed upon him ; the kim;, who
sat just over him, smiling at the quaint satire so
handsomely coloured over. It seems Ncile,
the bishop of Lincoln, was not by him then;
for when any man preached that had the re-
nowii of piety, unwilling the king should hear
him, he would in the sermon time enter*
tain the king with a merry tale (that I may
give it no worse title) which the king would

down 20,u00/. fur the office of l.or 1 Treasurer; > after laugh at, and tell those near hira, he could
and before the yc:*r expired, it \%.:* tvmfenvd j not hear the preacher for the old B. bishop,
upon Mr Lionel l.'ramichl, win h:;d been a ciii- ! We must confess, this relation smells too nsuk,
a*n of London, bred up in tbc (.'u>toiii-iwu»f; : l.ur it was too true, and hope the modest read"
and k iM -.vim: the secret connivances of i!n\,.» j v. dl excuse it, we having had divers hammer-
omren, wt-.s '.ho-'^ht fittest to in ipane the kind's i injs and conflicts within us to leave it out, sc*-
reveuue : for in expensive and waiting courts, | iug it proceeds not from any rancour of spirit
those great ollicers are most ,i/.r ;■]■:;: Me, that i .v^inst the prelacy, but to vindicate Gods
by their finews and projects can In: i_r iu that, justice to posterity, who never punishes «itb-
which with liot and prudigdity <:•>*■* on:. Bui uu; .». cuu»e, and such-like practices as these

the treat sicp to his oiiice, was (.Yaiuiehi's m..i
rying one of Buckingham's kindred, which
iiM«:mtuil l.'i.n pre t ntly nfier to hi* earl of Mi i-
liL-M^x. 1 l.e lord e'ntf i istice i.#i hi* mo'.iev

v ji<; oo'tbtiess piit upon the fcore, which atter-
u.!nJ-« £i\e a period to that hierarchy. This
nu:ii\ i; ■; ul helped to close i.p the countess ot
KsseJw'* virginity, when he was Coventry sod

■ * 1 * 1 I ■ "» 1 II* S • • * *Am

wrs made a preivient, as s-n .c jested; the | Litchii.M: :,•>. Ii.art had this kind of vaaitj
kii:<i finding him a man intelligent in all th*i ; when he ivas Lincoln ; and when he was such*

great affairs of »:.ite. made him lord president b*h»p < f York, hi* liead was so filled with<*>
•if the council, viscount Mabdevd!, and cuii oJ': miuian wipiety, that in tlpe nest

srtip

liA3] STATE TRIALS, 22 James I. \62-l^l*roccedmgs again* the Bp.qf Norwich. [195-1

he was looked upon by the parliament to be
one of the great grievance* of the kingdom."
Wilson's Account of sir L. C ran field in his
History of James I. 1 Kenuclt's Comp. Hist.
72f, 729.

" The marquis of Buckingham continuetii
still in fullness of grace and favour; the coun-
tess, his mother, sways also much at court. She
Lru light sir Henry Montague frwn delivering
law on the King's-bcneh to look to his baps in
the £schequer, for she made hnn Lord High
Treasurer of England, but he parted with his
white staff before the year's end, though Ir.s
purse had bled deeply 'for it (above 20,000/.)

which made a lord of this land to ask him at his
return from court, whether h? did not tind that
wood was extreme dear ui Newmarket, for
there he received »hc »*hite stuff. There is now
a nutahle ttirrmtf iiawii in the place, my lord
C ran field, who, from walkii g about the Ex-
change, is runic to sit Chief Justice in the
Chequer-chamber, and to h:i\e one of the
highr*t places at the council-: able. He is mar-
ried to one of the trihe of fortune, ;i kinswoman
of the marquis of Buckingham." J tnuea Howell
to his Father, March 92, 16Q2, Letters, Book 1,
§ 3, letter 1.

123. Proceedings in Parliament against Samuel IIarsxet, Eishop
• of Norwich, for Extortion and other Misdemeanors : 22 Jamt:s
I. a. d. 1624. [Lords Journals. 1 Cobb. Pari. Hist. 1478.]

May 14, 1624.

1 HE Bishop of Norwich besought the Lords
to remember the Menage from the Commons,
on the 8th instunt, for a Conference touching
some Accusations agninrt his lordship, which
their lordships then deferred, l.y reason of the
thinness of the house; and desired them to
appoint a time for the same, with wht.t expe-
dition they conveniently may ; whereupon a
Commit tie was then named for that purpose.

May 19. A Report wns made by the arch-
bishop of Canterbury, of a Conference with the
Commons, touching a Complaint against the
bishop of Norwich, to this effect: " That the
Commons had received a Complaint ex hi hit ed
•gainst the said lord bishop, by the citizens of
Norwich : and to shew, that it was ordinary for
the Commons to complain ngainst the governors
of the church, divers re con Is of parliament
trere cited ; ami is, 18 Ed. 3, 35 Ed. 3, 50 Ed.
3, 17 Rich. '2, and 1 1 Hen. 4, which were
cited to satisfy tacit objections tor their med-
dling with a cause of this nature. — That the
Charge against the said bishop consisted of
•is parts: l.That he inhibited or disheartened

f reorders on the Sabbath day in the forenoon.
I. That images were set up in the churches,
•nd one of the Holy Ghost Muttering over the
font; that a marble tomb was pulled down,
and images set up in its room, and the bishop
blessed them that did it. HI. '1 h;tf he punished
those who prayed not towards the cast. IV.
That he punished a minister for cnterhizing his
family, and singing of psalms. V. That he used
extortion many ways.- VI. That he did not
enter Institutions, to the prejudice of patron*.
To the 1st Article it was said, That there were
51 churches in Norwich; and in those parishes
30 or 40,000 people: I hat the lord bishop sent
lor the preachers, by the apparitors, and told
them, there was no need of preaching on Sun-
day in the forenoon, except in the cathedral
church ; although 2 ot 3000 could only hear
there; many dwelling three quarters of a mile

off, and many were old, and not aide, for their
age, lo come so far. That this inhibition was
when the king had commanded more preaching.
That his lord* hip connived at Recusants, all
which was the disheartening of the good pro-
fessor*. It may be objected he allowed of
catechizing; crga, uo preacliiir^ necessary: hut
he commanded to ask bare questions, and no-
thing else; rryco, no instructions. That this
is done against the carious of the church, and
that there is no obedience without knowledge.
The outward man is not confirmed, unless the
inward man he reformed ; and cited the ranon.
* quitunquc contristaverit dociorem veiitnin
1 peccat in Christum;' with the canon, 1 Jac.
c. 45, for commanding preaching. — For the
2nd touching the setting up of I map"*. \x was
said to he against acts of pailhoncot, n-.-ainst
the canons of the convocation, the book allowed
in the lime of Hen. fl, '.># Hen. b\ c. 30, iigiiinst
Images, Pilgrimages, &c. against the 3 Edw. d,
and the Homilies approved, aun-i 1 Lli/. for-
bidding images in churches. — The 3rd, lor
prayer to the east. Which Cratum nthnm
came by tradition, pars 1, diet. II, and that it
is superstitious, Lin wood in the Glosses, lib. 'i,
tit. de Fc-riis, ' non refert si ver-us Oricntein,'
A.c. That the bishop excommunicated mam ,
and enjoined penance unto diver.**, for praying
to the east ; and some did their penance with
a withy rod in their hand ; the proof thereof in
under the bishop's hand. — The 4th, one Peck,
a minister, catechized his family, and sung
psalm?, his neighbours coming in, of a Sunday
after evening prayer?*. The bishop enjoined
them to do penance, for this their resorting to
catechize and sing psalms, and to say, « 1 con-
1 fess my trrors, &c.' which acknowledgment
is under the bishop's hand. They who refus-
ed, were excommunicated, aad pnid 71. charges.
And it was particularly observed by the Com-
mons, that this Peck was a conformable
preacher. — othly, Touching Extortion. It wji
shewn, That, in' the Table of Fees is set down,
fen Institution 94f. 8t/. whereof to the bishop

1355] STATE TRIALS, 22 Jambs 1. 1624.— Proceedings against tht Bp. qfNonrick [1256

10*. That this lord bishop is register also, and
now himself taketh, for institution, 3/. 5f. and,
for united churchi s, double ; and that, commu-
nibus annii, the.e are nn hundred institutions.
For Admission into sacred Orders, nothing
should bo taken ; if any, it is simony : yet this
bisnop taker i now 29 or 30«. the bishop and
register bring all one. To sene cure, 5s. is
due ; h<' takes On. Bd. To teach school, 3s. 4d.
is due ; he tikes 6s Bd. and if of ability 10s.
For every consignation of a decree Ad. which
come-, to 80/. per annum, fir which there
should be nothing paid ; no consignation being
in ti.e tabic, hut «et down in archbishop Whit-
gift's time, in another hand.— -tilh'.y. Touching
the entering of Institutions. Tftnt the institu-
tions to benefices are not registered ; w I rich
overthrows the patronages, if it he returned
icrutatis archivis 'ion invent tur, when the right
comes in qut-sti<>n ; yet the fees are greater
than before/* — The Commons concluded with
these two remembrances. 1st, *' That they
received this Complaint before E.i6terlust ; yet
they proceeded not in th* Examination thereof
till they received a certificate from the mayor
of Norwich. 2nd, That none shall.be punish*
ed for c mtplaining in parliament."

This Report being ended, the bishop of Nor-
wich stood up in his place, and answered the
snrnr. to this eifect : " lit. His lordship con-
fessed the ( hargf s in the said Complaint to be
•o gre^t and g.ievous, that, were he guilty
thereof, he would desire, himself, to be punish-
ed : but whether he be guilty or not, he will
le.ive to their lordships exact and severe exa-
mination ; wherein he desired thorn not to
spar •• him, and he would ever acknowledge and
commend their justice and honour. — His lord-
ship i -rotctrt'd lie was no way guilty of the first
part of this accusation ; if he wire, then he
was unworthy to bear the name of a clergy-
man. He shewed the unwi*thiness of such as
should dishearten preachers fro in preaching the
word of God. His lordship shewed also (de-
siring first that he might not he taxed with os-
tentation) his own practice in preaching, whilst
he was \ic\r and parson : that he preached
every s.thhath iu the morning, and catechized
in the afternoon ; and that he continued the
like prearh-uv whilst he was bishop of Chi-
chester: th.it in Norwich he never missed the
public place, and ever preached there against
popery: t hough he had been an unprofitable,
yet he had not been an idle servant ; which
was now his only comfort. — As touching
Preaching and Non-residence, he had been
reckoned more than half a puritan : he told
them of his manner of lining, and his leaving
the archbishop of Canterbury's service that he
might go to his cure. He wonde.cd why he
should be thought a papist ; he thought it might
be owing to his disputations, and his sermons
at Paul's Cross, on predestination negative, un-
advisedly preached by him ; for which he was
cliecked by archbishop VVhitgift, und com-
manded to preach no more of it ; and he
never did, though Dr. Abbot, late bishop of

Sarum, hath since declared in print that which
lie then preached to be no popery. That po-
pery is a ore that will never be. quiet, he hath
preached a thousand sermons ; and nothing of
popery can be imputed to him out of any of
them. — That there were divers obstacles to
keep huu from popery. 1. The Usurpation!
of the pope of Rome. His lordship affirmed,
That no power on earth can touch a prince;
and therefore he abhorred the usurpation of
the pope over princes. 2. Their religion m
dyed iu Blood. 3. The practic course of their
religion is all by juggling and feigned miracles;
of which his lordship had writ a hook sgaiast
them, which was never as yet answered. That
he never spake with priest or Jesuit, nor never
invited a known recusant to his table; for
they never say Amen to our prayers. 4. That
their equivocations are the last ; worse thin
which nothing can be; his lordship held it
much better to take on with the devil than
with such. Then he professed himself to be a
true member of this church, and acknowledged
the church of England to come nearest to tht
primitive. That we fetch not our reformatioo
from Wickliff, Huss, and Lather of latter times,
but from the first 400 years next after Christ.
— L As touching the first part of the accusa-
tion. His lordshp conftssed, That six or se-
ven of the abler sort of miuittere in Norwich
uted to expound, in their own churches, before
the sermon began in the cathedral church;
and many resorted from other places to these
expositions, (for all the churches have not
preachers) and in the afternoon to their 'ser-
mons. The preachers themselves found fiuut
with this, being willing to be rid of the pains,
fur they were to preach in the afternoon aud
on the week day?, and shewed hmi many disor-
ders therein, which ihey pretended ; as tat
cutting off part of the prayers, or their Inputt-
ing so early, that many could not come to the
common prayers, and the like; and they be-
sought his lordship to remedy it, beennse they,
being stipeudary men,, were i«* h to do it. for
fear, belike, to lose their stipends ; wh- reupoa
he sent for them by an officer, and willed them
to omit thei>e expot-'i ■:ii«» it* th" forenoon ; and
yet he had since ta-keu order for the erecting
of three sermons in the ).?ost remote parts of
the city from the catheni al enure ; and be
also had erected many lectures in r*ewi.-i places
of the country. II. As touching the linnets
in a Church. What was do:.* was done with-
out his knowledge, it wa* mewnt by St. Peter's
church : that he never saw thnt church till one
evening as he' came by ; and being informed of
much cost done upon it, he went in, and kneel-
ed down to his prayers, as his in>e was. When
he rose up, and perceived that they had be-
stowed very gicut cost, and not seeing or
knowing oi any image at all sot up there, be
said, * God's blessing on their hearts that bad
' bestowed such cost on God's house.' HI. As
touching prayers to the east : he never enjoia-
ed it, nor heard of it till now. IV. For (be
4th part of his Complaint : he perceived UmI

1257] STATE TRIALS, 1 Charles 1. 1625,— Proceedings against Rd. Mountague. [1959

lie had been sifted through the whole course' of
his life ; that this Peck was sent to him by the
justices of the peace, for keeping an assembly
late at night at his house; his catechizing he ing
but a colour to draw them thither. That this
Peck had infected the parish with strange opi-
nions ; as not to kneel when thej came to
church; that the name of Jesus is no more
than a common name, and that it is supersti-
tion to bow down ut it. His lordship aihnned,
that this Peck had formerly been convicted of
nonconformity, unnis 1615 et 1617 ; also, for
simony and conventicles in hi* neighbour's
house, as appears by an act in the register.
And that anno 1629, he was taken in his house
with 22 of his neighbours, at a conventicle ;
that he was then bound over by a justice and
brought to his lordship, and his sentence against
him was, only, that he should confess his fault.
The others, mentioned in this part of the
Charge, were f>u«ii»hed for their opinions also ;
making no difference between an alehouse and
the church, till the preacher was in the pulpit.
He said, he must confess his fault. That iu the
penance which he enjoined, he caused them to
confess their errors, omitting their resort to
conventicles, which l»e did at their own earnest
suit. V. His lordship at*olutely denied that
lie imposed any Fee*, and amrmed that he had
not any of those fees which were complained
of; only the fees for Institution, which he took
as his predecessors did. If therein he had
committed any error, erravitnus cum patriLus ;
and denied that he had ever seen tfiat Table of
Fees which is spoke of by the Commons. VI.
His lordship amrmed, That he had registered
all the Institutions."

When the bish -p had ended his Defence, his
royal higiiU'-ss toe Prince stood up and told
him, " That he had not answered concerning
the Paraphrase of the Catechism which he bed
taken away." To which the Bishop replied,
*' That the preachers used to chuse a text from
the « reed, &c. and to nsk the child some one
que&iion, and then to d late very long upon it,
but never descended to the capacity of the
child. That he did not forbid the explanation,
bat ordered that it should be done catecheti-
cal ly."

Thus ended the bishop of Norwich's Answer

to the said Complaint. Immediately after
which, an Order is entered in the Lord's Jour*
nals, "That in respect to the shortness of
time and the multiplicity of business, now de-
pending to be determined, the complaint of
the Commons, against the bishop of Norwich,
shall be referred to the High Commission, to
be examined by them ; and they to make re-
port thereof to the house, and then the house
williudge of it."

The same day the bishop exhibited a Com*
plaint to the house against one Thomas Stokes,
clerk, " That whereas the said Thomas Stokes
had preferred a Petition to the Commons
against his lordship, for excessive fees, pretend-
ed to be taken by his lordship, and ror other
grievances therein mentioned. He acknow-
ledged the proceedings of the said Stokes Co
be le^al, and humbly submitted himself to an
examination and strict trial. However, ha
complained that the said Stokes bad sent his
lordship this message : * That if be would suffer
a judgment in the court of common pleas for
him, the said Stokes, to be archdeacon of Nor-
folk, that then Stokes would prosecute no fur-
ther against liis lordship : otherwise, he would
smoke him with more Complaints.' Moreover,
that the said Stoke* reported that his lordship
did driuk a health to Spinola, and refused to
pledge a health to the prince of Orange, for
that the said prince was a general unto trai-
tors. And that Stokes amrmed his lordship
did take 30/. of every one of the archdeacons
when he came first to his see. All which bis
lordship amrmed to be false."

This Complaint, with the witnesses the bishop
produced to prove it, was referred to the exa-
mination of the archbishop of Canterbury, who
was to make report thereof to the house for
their judgment of the matter. But we hear no
more of this, or the former affair, in the Jour-
nals or elsewhere; for neither Wilsou nor
Rushworth mention one word of it.*

* This bishop of Norwich, Le Neve tells us,
had been guilty of several scandalous practices,
whilst he was master of Pembroke hall in Cam-
bridge. He came into high favour, at court,
in the next reign; for in 1628, he was made
archbishop of York.

124. Proceedings in Parliament against Richard Mountague,*
Clerk, for publishing a factious and seditious Book: 1 Charles
I. a.d. 1625. [3 Kenn. Compl. Hist. 1 Rushw. Coll. 2
Cobb. Pari. Hist. 6.]

July 7, 1625.

MR. Richard Mountague, canon of Windsor,
and fellow of Eaton, rector of Stamford Rivers,
and chn plain in ordinary to his majesty, was

* Other particulars of this man and his books
are to be found in 1 Rushw. Coll. 173, 176, 199,
634. 2 Cobb. Pari. Hist. 6, 11, 78, 457 et seq.
TJt* ttafe JQ 1627, made him bp. of Chichester.

brought to the bar of the house of commons, to
answer for his Book intituled ' An Appeal
to Cesar/ which was there charged upon him,
to be contrived and published to put a jealousy
between the king and his well affected subjects,
and to contain many things contrary to the Ar-
ticles of Religion established by parliament;
and that the whole frame thereof was an en-
couragement to popery.

12.39] STATE TRIALS, 1 Charles I. 1(525.— Proceedings against Ad. Mountagut, [13G0

This Cause had began in the 21st of king
James, when this learned man had published a
former Book entitled, ' A new Gagg for an old
Goose/ in answer to a popish book, called ' A
Gagg tor the new Gospel/ When upon a sug-
gestion that he had receded from some doc-
trines of the reformed churches, and had too
. much softened some of the Roman tenets ; he
*»as then questioned in- parliament, and the
cause being of dubious points of belief, was re-
ferred to the archbishop of Canterbury ; who
expressed his dislike of the book, and gave the
author a solemn admonition. Some other bi-
shops, who were called of the Arminian party,
had a different notion of Mr. Mountague's opi-
nions, and encouraged him to re-assert thein,
and defend them in another treatise to be dedi-
cated to the king; and as an appeal to his royal
judgment and authority, to be entitled * Appello
Ctetfirero.' The archbishop disallowed the
book, and endeavoured to suppress it : but the
other bishops attested their approbation of it,
and hastened the edition. The house now ap-
pointed a committee to examine the errors of
it, and pave the archhi^op thanks for his former
admonition to the author; whose books thty
voted ti he contrary to the established articles,
to tend to the king's dishonour, arid to the dis-
turbance of church and state : for which they
assigned him u time of answer, mid took bond
for his appearance under the penalty of ",000/.

But on Saturday, July 9, the king' himself in-
terposed, and signified to the commons, that
4 What had been spoken in their house, and de-
4 termined against Mr. Monnta^ue, was did-
4 pleasing to him. He hoped one of his chap-
4 fains might hare as much protection as tht* ser-
* vant of an ordinary burgess.' Thi* wa» look-
ed upon as an urbitrary obstruction of justice,
and would but have incensed the house to have
proceeded more severely, if on their ne\t day
of sitting, Monday, July 11, the parliament had
not been prorogued to Chford, where they met
again on Monday, Aug. 1.

Here at Oxford there was a very small ap-

{reurance of convocation. Dr. Howies, the pro-
ocutor, absented himself for fear of the infec-
tion, Dr. Thomas Goad officiating in his place;
their meeting was kept in the chapel of Merton
college.

The convocation having neither desired nor
received any royal license to treat of ccclesh*-
tical matters, kept only to that civil purpose, for
which they were chiefly called, together .with
the parliament, of assisting the king with a rea-
sonable aid, and accordingly made a grunt of
three subsidies, which was confirmed by act of
parliament, as had been the custom ever since
the act of submission : since which time the
taxes of the clergy were passed into secular
laws, when, before that act, they were enjoined
and levied by synodical constitutions, under the
penalty of spiritual censures.

Mr. Mountflgue applies to the King.

Mr. M oantagae seeing himself under the dis-
pleasure aud prosecution of tht bouse of com-

mon*, made no application to either house of
convocation (who without the king's direction
did not apprehend that the cause tell regularly
under their cognizance) but wrote a humble
Letter to his majesty, dated July 29, 1625,
w hi re in he first plainly laid open tlie state tf
disease, and then petitioned that by his majes-
ty's authority and wisdom, he might be protect-
ed from tho.-.e who had no power over his per-
son, as being his majesty's servant in ordinary;
nor over his book, as being wrote by the com-
mand of his royal father, and authorized by hn
present majesty himself; and then concluded
with this Declaration, " That if he could not
really and thoroughly answer whatsoever wss,
or could be imputed to him in any of his books,
he would no farther desire any favour or pro-
tection, but would be willingly left to the power
of his enemies."

The bishops of Rochester, Oxford and St.
David's, who had a kind opinion of Mountsgue
and his writings, and seemed very sensible of
the danger to the church, in allowing points of
divinity to be examined ;md judged by the com-
mons in parliament, used nil possible endeavours
to stop this method of proceeding; and know-
ing the duke of Buckingham to have the great-
est influence uprn the kin;:, they begged his in-
tercession in this Letter, dated August 2.
" Muy it please your Grace,

" We are bold to be suitors to you in the be-
half of the church of England, and a poor mem-
ber of it, Mr. Mount-ague, at this time not a
little distressed. We arc not strangers to h»
pc r-on, but it is the cause which we are hound
to be tender of. The cause we conceive (under
correction of better judgment) concerns the
church of Kuglaud nearly. For chat church
when it was reformed from the superstition
opinions broached or maintained by the church
of Rome, refused the apparent and dangerous
error.*, and v.ould not be too busy with every
particular school point.

" Now, may it please your grace, the opi-
nions which at thiv time trouble many men in
the Lite book of Mr. Mountaguc, are some of
them su,h as arc expressly the resolved doctrine
of the church of Kngland, and those he is bouM
to maintain. Some of them are such as are fit
only for schools, and to be left at more liberty
for learned men to abound in their own seost,
so they keep themselves peaceable and distract
not the church. And therefore to make any
man subscribe to school opinions, may jusdr
seem hard in the church of Christ, and wnioue
great fault of the council of Trent. And to af-
fright tliein from those opinions in which tb-.y
have (as they are bound) subscribed to the
church, as it is worse in itself, so may it be the
mother of greater danger.

" Way it please your prace further to cse-
sider, that when the clergy submitted rhemselcm
in the time of Henry U, the submission was so
made, that if any difference doctrinal, or other,
fell in the church, the king and the bishop*
were to be judges of it in the National Syaofl
or Convocation ; the king first giving If*

1261] STATE TRIALS, 1 Charles I. ICQ5— for publishing a Seditious Took. [1262

upon occasion of hi* Look. And -this wc most

under bis broad seal to handle the points in
difference. But the church never submitted to
any other judge, neither indeed can the though
she would. And we humbly desire your grace
to consider, and then to move his most gra-
cious majesty (if you shall think lit) what dan-
gerous consequences may follow upon it. Tor,
first. If any other judge be allowed in matter of
doctrine, we shall depart from the ordinance of
Christ, and the continual course and practice
of the church. Secondly, If the church be once
brought down beneath hcr&tlf, nu cannot but
fear what muy be the next stroke at it. Thirdly,
It will some way touch the honour of his ma-
jesty's dear father, and our most drtad sove-
reign of glorious and ever blessed memory,
king James, w ho saw and approved all the opi-
nions of this book. A ad he in his r:irc wisdom
and judgment, would never have allowed them,
if they had crossed with tir.lh and the Church
of England. Fourthly, We must be bold to
say, that we cannot conceive what use there
can be of civil gnveriiiiicnt in the common-
wealth, or of preaching, or external ministry in
the fduirth, it such fatal opinions as some which
we opposite and contrary to these delivered by
Air. Mnuntagucavc»haJl be publicly taught and
maintained. Fifthly, We are certain that all
or most of the contrary opinions were treated
of at Lambeth, and ready to be published ; but
tlien queen Elizabeth of famous memory, upon
notice given how little they agreed with the
practice of piety und obedience to all govern-
ment, caused them to be jupprcFsed ; and so
they have continued ever Hiice, till of late
some of them have received countenance at
the Synod of Dort. Now this was a synod
of that nation, and can be of no authority in
any other National Church till it be received
there by publick authority. And our hope is,
that the Church of England will bo well ad-
vised, aud more than once over, before she
admit a foreign synod, especially of such a
church as condemned! her discipline and man-
ner of government ; to say uu tuoie.

u And further we are "bold to commend to
jour graced wisdom this one p articular. Ilia
majesty 'us we have been informed) hath al-
ready taken this business it to hi > own care,
and uio*t worthily referred it in a right course
to church consideration. And we well hoprd,
that without further trouble to the state, or
breach of unity in the church, it mi^ht so have
been we'l and orderly compo»cd, us we still
pray it may.

" The»e things considered, we have little to
say for Mr. Mountngue's person : only thus much
we know, he is a very good scholar, and a
right hone>t man : a man every way able to do
God, his majesty, aud the Church of England
great service. We fear he may receive discou-
ragement ; aud (which is far worse) wc have
some cause to doubt this may breed a great
backward nets in able men to write in the de-
fence of the Church of England, against either
home or foreign adversaries, if they shall see
him sink ia fortune's reputation, or health,

humbly submit to your grace's judgment, and
care of the church's peace and vt chare. So
commending your grace to the protiction of
Almighty God, wc shall ever rest at your grace's
service, jo. Ho* fen. Jo.Oxofr. GiiL. >! km.ka.
Apr. », WIS."

The duke's espousing this cause, and the
king's reproving the house of commons for
meddling in it, did but more exasperate the ad-
verse party, who were now enemies to JVIoun-
tague not as an Aiminiun, but as nu instrument
(in their thought**) of arbitrary power. And is
was indeed the state interest that gave the great
distinction to the school opinions. Those di-
vines who adhered to the more rigid opinions
of St. Austin, Calvin, and the by nod of Dort,
they were at this time of the country party, in
favour with the people, and with the prevailing
side in parliament; so they established to
themselves the reputation of beiug sound and
orthodox Protestants : while the other divines
who went back to the foundations of religion,
and to the import of the Scriptures, and to the
sense of the primitive fathers, in rejecting the
hard decrees of reprobation, and in reconciling
the will of man with the grace of God ; they
were eminently of the court-party, and favour-
ites of the king and the duke : and under a
prejudice upon this civil more than a religious
account, they were charged with Popery and
Arminianisin, only to make them the more
odious to the common people. Even the Ar-
minians in Holland snuered more a* a state
faction than as a religious sect ; they were
found adversaiics to the rights and liberties of
tha people ; and it was under that character
they were made heretics, rather than for their
abstracted nottous in divinity. And it was tho
same now in England ; the doctrinal contro-
versy would have created no great difference, if
there had not been a political division in it.

It was this very reason that now inflamed the
commons against Mr. Mountngue ; and they
would have shewn their indication at his
having, such an interest at court, if this parlia-
ment had not been so very abruptly dissolved.
And this a^n in en creased the prejudice against
what they now called the Arminiau party ; and
the cry a^nust them was so popular, that
many divines were encouraged to confute the
principles of .Mr. Mountaguc's Hook, and to
represent them as false and pernicious, in
this design Dr. Sulci hT, Mr. liurtou, Mr. Kow$e,
Mr. Yate?, Mr. YYotton, and even a r.i*hop
of the church, Dr. Carleton, engaged them-
selves. Their writings serv«*d to heighten the
jealousies of the wiser, and to confirm the pre-
judices of the weaker men/ This was soon
improved into such a universal ditiile of the
dreadful name of Anninianism, that even the
king and tlie duke began to think it not safe
and houourable to support a cau-?e that was ge-
nerally run down by the voice of the people t
and therefore at the opening of the *econd par*
liament, summoned to meet Feb. 1625-6, the
duke seemed inclinable to drop his concern for

1963] STATE TRIALS, 1 Chahuu I. lM5.—Procecding$ against Rd. Mouniagm, [1964

Mountague, the better to reconcile himself to
some of the leading members : and for the
same reason his majesty was disposed to leave
% Mr. Mountague to the free prosecution designed
against him, and not to interpose in his favour;
that he might not thereby interrupt his more
important affairs. Bishop Laud, who was a
zealous friend to the person and opinions of
Mr. Mountague, was sensible of this intention of
die court to deserthm : it was on such a pros-
pect that he made this entry in his Diary, Jan.
89, Sunday, ' I understand what D. B. had

* collected concerning the Cause, Book, and

* Opinions of Richard Mountague, and what

* R. C. had determined with himself therein.
4 Methinks I see a cloud arising and threaten-
4 ing the Church of England : God of his mercy

* dissipate it/

As soon as the parliament began, Feb. 6, the
commons had an immediate eye upon Moun-
tague, and resolved to call him to account. This
raised the curiosity of many peers to under-
stand what the tenets were, and how they dif-
fered fn»m the Calvinistical opinions which
were commonly called the doctrine of the
church, and were then the generally received
sense of the articles of it. To this end, a con-
ference was procured by the earl of Warwick
to be held in the duke of Buckingham's house
in presence of his grace and many others of
the nobility, upon Saturday Feb. 11, between
Dr. Buckeridge bishop of Rochester, and Dr.
White dean of Carlisle on the side called Anni-
fiian, and Dr. Morton bishop of Litchfield, and
Dr. I'reston preacher of Liucoln's-Inn, on the
other side. This conference was again renewed
in the same place upon Friday Feb. 17, where-
in Mr. Mountague himself appeared in the room
of bishop Buckeridge. The success of these
conferences was differently reported, according
to the different affection of the hearers. The
parliament in the mem time began with re-
turning thanks to the king for his gracious an-
swer to (heir late petition for religion. Aud
when the house of commons fell upon the sub-
ject of grievances, thinking t1 eir liberty and
property to depend much on the establish d
faith and worship, they appointed a committee
to consider of the state of religion and the
growth of popery. To this committee the
bouse referred the examination of Mr. Moun-
tague^ * Appeal to Caesar;' who on Apr. 18,
making their report by Mr. Pyui to the house,
these Articles were drawn up against him :

Articles exhibited by the Commons against
Richard Mountague, Clerk.

u That he the said Richard Mountague, in or
about the 21st year of the reign of our Lite so-
vereign king James of famous memory, hath
caused to be priuted, and in his name to be
published, one book called, ' An Answer to

* the late Gngg of Prottstniits / and in or about
ann. 22, of the same king, he caused to be
printed and published one other book entitled,
4 A Treatise of the Invocation of Saints;'
•ad likewise in too first year of his majesty's

reign that now is, he procured to be printed,
and in his name to be published, another book
entitled, ' An Appeal to Caesar.' In every of
which books he hath maintained and confirmed
some doctrine contrary or repugnant to the ar-
ticles agreed by the archbishop and bishops of
both provinces and the whole clergy holden in
the Convocation at London 1562, tor avoiding
diversity of opinions, and for establishing con-
sent touching true religion : all which appears
in the places hereafter mentioned, and in di-
vers other places and passages of the same
books : and by his so doing, hath broken the
law s and statutes of this realm in that case pro-
vided, and very much disturbed both the pesos
of church and commonwealth.

I. *' Whereas in the 35th article of the arti-
cles aforementioned it is declared, That the
second book of Homilies doth contain a godly
and wholsome doctrine, in the 16th Homily of
which book it is determined, * That the Church
' of Rome as it is at present, and hath been for
' the space of 900 years and odd, is so lar widf
' from the nature of a true church, that nothing
' can be more ;' he the said Richard Mountague,
in several places of his said book called the
' Answer to the Gagg,' and in iiis other hook
called the ' Appeal/ doth advi«edly maiutsia
and affirm, ' that .he Church of Rome is and
1 ever was a true church since it was a church/

II. " Whereas in the same Homily it is like-
wise declared, ' that the Church of Rome a

* not built upon the foundation of the prophets
' and" apostles ;' and in trie 38th article of the
said articles, that * transub*tuntiati»n orer-
' thrower h the nature of a Sacrament/ and is
the 25ih article, that ' five other reputed Ss-
' craments of the Church of Rome are not to
' be accounted Sacraments/ yet, contrary and
repugnant hereunto, he the said Richard Mom>
tague doth maintain and affirm in his Book
aforesaid, called ' The Answer to the Gag;/
that ' the Church of Home hath ever remained
' firm upon the same foundation of Sacraments

* and Doctrine instituted by God/

III. " In the 19th article it is farther deter-
mined, that ' thf Church of Rome hath erred
' not only in their living and matters of cere-
' mony, but also in matters of faith / he (he
said Richard Mountague speaking of those
points which belong to faith and eood manners,
hope and charity, doth in the said book caflei

* The Gug*/ affirm and maintain, that none
of these are controverted in their points, mean-
ing the Proiestniits and Papists. And notwith-
standing that in the 31st article it is resolved,
that ' the sacrifice of masses in which, as it if
' commonly said, the priest did offer Christ for
' the quick and the dead to have remission of

* pain and guilt too, is a blasphemous fable,
' and dangerous deceit/ this being one of .he
points controverted between the Church of
England and the Church of Rome, the saw
Richard Mountague, in h s book called theGsjg,
doth affirm and maintain, c that the cntro-
' verted points arc of a lesser and inferior ns-
' ture, of which a man may be ignorant irkk*

1965] STATE TRIALS, 1 Charles I. \625.— for puMMng a Seditious Book. [126tf

this commonwealth, by casting the odious und
scandalous name of Puritans upon such hi* ma-
jesty's loving subjects as conform themselvt s to
the doctrine and ceremony of the chuich of
England, under that name layir.g upon them,
divers i\\Ue and malicious imputations so to
bring them into jealousy and displeasure with
his most excellent majesty, and into reproach
and ignominy with the rest of the people, to the
great danger of sedition and disturbance in the
state, if it be not timely prevented.

VIII. " That the scope and end of the said
Rd. Mountngnc,in the books before mentioned,
is to give encouragement to popery, and to with-
draw his majesty's subjects from the true reli-
gion established to the Roman superstition, and
consequently to be reconciled to the see of
Rome : all which he laboureth by subtle und
cunning ways, whereby God's true religion hath
been much scandalized, those mischiefs intro-
duced which the wisdom of many laws hath
endeavoured to prevent, the devices and prac-
tices of his majesty's enemies have been fur-
thered and advanced, to the great peril and ha-
zard of our sovereign lord the king, and of all
iiis dominions and loving subjects.

IX. " That the said lid. Mountagno hath
inserted into the "aid book called ' The Appeal/
divers passages dishonourable to the late king
his majesty's father of famous memory, full of
bitterness, railing, and injurious speeches to
other persons, disgraceful and contemptible to
many worthy divines both of this kingdom and
of other reformed churches beyond the seas,
impious and profane in 6corfmg at preaching,
meditating, Mid conferring pulpits, lectures,
bible, and all shew of religion : All which do
aggravate his former olTences, having proceeded
from malicious and envenomed heat ug-tinst
the peace of the church, and the sincerity of
the reformed religion publicly professed and by
law established in ths kingdom.

*' All which offences being to the dishonour
of God, and of most mischievous effect and con-
sequence against the good of tins church and
commonwealth of England, and of other his ma-
jesty's realms und dominions ; the commons
assembled in parliament do hereby pray, that
the said Rd. Mountugue may be punished ac-
cording to his demerits, in such exemplary man-
ner, as may deter others from attempting so
presumptuously to disturb the peace ol church
and state, and the book afortsaid may be sup-
pressed and burnt."

9 out any danger of his soul at all ; a man may

* resolve to oppose this or that without peril of

* perishing for ever.'

IV. « )Vhereas in the 3d Homily entitled
'Against peril of Idolatry*/ contained in the
aforesaid book of Homilies, appioved by the
35th article aforementioned, it is declared, that
4 Images teach no good lesson neither of God

* nor godliness, but all error and wickedness;'
he the said Richard Mountnguc, in the book
4 Gagg' aforesaid, doth atlirm and maintain,
that * Images may he used for the instruction

* of the ignorant, and excitation of devotion/

V. " That in the same Homily it is plainly
expressed, that ' the attributing the defence of

* certain countries to saints is a spoiling God of
4 his honour, and that such saints are but dii
4 tut dure t of the Gentile Idolaters;' the said
Richard Mountnguc hath notwithstanding, in
liis said book entitled ' A Treatise concerning

* the Invocation of .Saints ;' arhnned and main-
tained, ' That saints have not only a memory,
4 but a more peculiar charge of their friends/
and that ' it may be admitted that some saints

* bare a peculiar patronage, custody, protec-

* tion and power, as angels also have, over cer-
4 tain persons and countries by special deputa-
4 lion/ and that it is no impiety so to believe.

VI. " Wliercas in the 17th of the said Arti-
cles it is resolved, * that God hath certainly de-
4 creed by his counsel, secret to us, to deliver
4 from curse and damnation those whom he hath

* chosen in Christ out of mankind, and to bring
4 them by Christ to everlasting salvation ;
4 wherefore they which be endued with so ex-
4 eel lent a benefit of God, be called according

* to God's purpose working in due season, they

* through grace obey the calling, they be justi-
4 fied freely, walk religiously in good works,

* and at length, by God's mercy, attain to ever-

* lasting felicity :' He the said Richard Moun-
tnguc, m the said book called ' The Appeal,'
doth maintain and umrm, that ' Men justified

* may fall away, and depart from the state

* which once they had ; they may ari«e aguiu
' and become new men possibly, but not cer-

* tainly nor necessarily :' and the better to coun-
tenance this his opinion, he haih in the same
book wilfully added, falsified, and changed di-
vers words of the 10th o( the Articles before
mentioned, and divers other words both in the
book of Homilies and in the book of common
prayer, and so misrciifcd and changed the said
place*. He doth a Hedge in the said book called

* The Appeal/ endeavouring thereby to lay a
most wicked and malicious K'nudal upon the
church of Knirlaud, as if $die did herein differ
from the reformed churches of England, and
from the reformed churches beyond the seas;
and did consent to those pernicious errors which
are commonly called Armmiunism, and which
the late famous queen Elizabtlhand king James
of happy memory did so piously und diligently
labour to fruppress.

VII. " That the said Rd. Moiintague, con-
trary to his duty and allegiance, hath endea-
voured to raise great factions and divisions in
VOL. II.

I

It does not appear whether these Articles
were presented to the king or jvre ferret! in any
judicial manner, or whether Air. Mountague
gate in auy Answer, or made any other public
Vindication. It is most probable l hut tl»e com-
mons were so immersed in the Impeachment of
the duke of Buckingham, that they had not
leituie to prosecute this inferior c«u*e before
their dissolution : Nor did the king take any
notice of this Complaint, or suffer it to be de-
bated in convocation. He thought it a dispute
fitter to be silenced than to be determined;

4m

1867] ST ATE TRIALS, 2 Ch. I. \G26.—Lrtpcackmoit qftktDnhc qf Buckingham, [126§

and tlierefore by advice of his bishops, he issued
out a Proclamation on Jime 14, declaring,
" Not only to his own people, but to all the
world, his utter, dislike of all those who to shew
the subtilty of their wits, or to please their own
humours, or vent their own passions, do, or shall
adventure to stir, or move any new opinions,
not only contrary but dilVering from the sound
and orthodontal grounds of the true religion,
sincerely professed in the church of England ;
and also assuring his subjects of his full and
constant resolution, thai neither in matter. of
doctrine, nor discipline of the church, nor in
the government of the state, we will admit of
the least innovation : but by God's assistance
will so guide the scepter of these his kingdoms
and dominions (by tlis divine providence put
into his hand) as shall be for the comfort and
assurance of his sober, religious and well affect-
ed subjects, and for the suppressing and severe
punishing of such as out ot any sinister respects
or disaffection to his person or government,
shall dare, either in church or state, to distract
or disquiet the peace thereof. lie thereupon
commands all his subjects (the clergy most espe-
cially, both in England and Ireland) that from
thenceforth they should carry themselves so
■wisely, warily and consiiouahly, that neither
by writing, preaching, printing, conferences, or
otherwise, they raise any doubts, or publish or
maintain any new inventions or opinions con-
cerning religion, than such as clearly grounded
and warranted by the doctrine and discipline of
the church of England* heretofore published and
happily established by authority. Straitly

charging all archbishops and bishops in their
several dioceses, as also counsellors of state,
judges and ministers of justice, speedily to re-
claim and repress all sucli spirits as shall adven-
ture hereafter to break this rule of sobriety,
and due obedience to his majesty's laws, and
this religious duty to the church of God, or in
the least degree attempt to violate this bond of
peace : Adding this further intimation of his
royal pleasure, that whoever from henceforth
shall take the boldness, wilfully to neglect this
his majesty's gracious admonition; and either
for the satisfying of their unquiet and restless
spirits, or for expressing of their rash and undo-
tiful iusoleucies, shall wilfully break that circle
of order, which without apparent danger both
to church and state may not be broken, his ma-
jesty will proceed against them with that seve-
rity, us upon due consideration had of their of*
fences and contempts, they and every one of
them shall deserve, &c."

But this wise Proclamation was known to he
meant not so much to restrain Mountague, at
to discourage and suppress the Answers that
were mude to him : and therefore did but serve
to improve the jealousies of Arminianism and
growing popery : which jealousies, however un-
reasonable, did so much obstruct the king's in-
terest, that it had been more happy if he would
not have seemed a party in any scholastic
questions.

Whether an Answer was made by Mounta«ne
to the Articles exhibited against him, Rash-
worth says he cannot tell. Upon some search
he could lind none.

125. Proceedings, in Parliament against the Duke of Buckingham,
the Earl of Bristol, and the Lord Coxway,* for High Crimes
and Misdemeanors : 2 Charles I. a. d. 1626. [52 Rushw.
Coll. 2 Cobb. Pari. Hist. 14.]

VERY shortly after the accession of king
Charles 1st, considerable distaste was express-
ed against the duke of Buckingham. On

August 6th, 16'} j, after many other expressions
of dissatisfaction had occurred in the house of
commons, sir Robert Cotton, the learned anti-
quary, made the following Speech directed
against the duke :

" Air. Speaker t : Although the constant wis-
dom of this house of commons did well and.
worthily appear, in censuring that ill-advised
member the last day, for treuching so far into
their ancient liberties; and might encourage

each wormy servant of the public here, to offer

— ■ , _ .

* The Case* of these three peers form but
one transaction, and are therefore consolidated,
in order to avoid the many repetitions or refer-
ences which would be necessary if the proceed-
ing* against each of the parties were exhibited
separately.

t Taken from his Posthumous Works, pub-
tithed by Mr. Howell, anno lfcl.

up freely his counsel and opinion : yet since
t|iese walls caunot conceal from the ears of
captious, guilty and revengeful men without, the
counsel and debates within; I will endeatour,
as my clear mind is free from any personal dis-
taste of any one, so to express the honest
thoughts of my heart, and discharge the best
care of my trust, us no person shall justly tax
my innocent and public mind ; except his con-
science shall make him guilty of such crime!
as worthily have, in parliament, impeached
others in eider times. I will therefore, with sf
much brevity as I can, set down how the*
disorders have, by degrees, sprung up in our
own memories; how the wisdom of the tat
and wisest ages did of old redress the like;
and lastly, what modest and dutiful course I
would wish to be followed by ourselves, in tlii*
so happy spring of our hopeful master. For,
Mr. Speaker, we are not to judge, but to pie-
sent; the redress is above ad qutrimoniam wlgi-
" Now Mr.. Speaker, so long as those attended
about our late sovereigu master, now with Goi$

1269] STATE TRIALS, 2Ch. T. 1G2i5—

as had served the late Queen of happy memory,
debts of the crown were not so great: Com-
missions and Grants not so often complained
of in parliament ; Trade flourished; Pensions
not so many, though more than in the late
queen's time]! for they exceeded not 18,000/.
now near 120,000/. all things of moment were
carried by public debate at the Council-table;
no honours set to sale; nor places of judica-
ture; laws against priests and recusants were
executed ; resort of papists to ambassadors
houses barred and punished ; his majesty by
daily direction to all his ministers, and by his
own pen, declaring his dislike of that profession ;
no wasteful expences in fruitless ambussages,
nor any tranbcendant power in any one mi-
nister. For matters of state, the Council-
table held up the fit and ancient dignity. So
long at my lord of Somerset stood in state uf
grace, and had by his majesty's favour the trust
of the signet seal, he often woidd glory justly
that there passed neither to himself, or his
friends, any long grunts of his highness'* lands
Or pensions: for of that which himself Ind, he
paid 20,000/. towards the marriage-portion of
the king's daughter. His care was to pass no
monopoly or illegal grant; and that some mem-
bers of this house can witness by his charge
unto them. No giving way to the sale of
Honours us a breach upon the nobility, (for
such were his own words) refusing sir John
{toper's office, then tendered to procure him
to be made a baron. The match with Spain
then offered, (and with condition to require no
further toleration in religion than ambassadors
here are allowed) he, discover inn the double
dealing and the dangers, dissuaded his majesty
from ; and left him so far in distrust of the faith
of that king, and his great instrument Gon-
domur, then here residing, that his majesty did
term him long time after a * Juggling Jack.'

" Thus stood the effect of his power with hi*
majesty when the clouds of his misfortune fell
upon him. What the future advices led in,
we may well remember. The Marriage with
Spain was again renewed : Gondoinnr declared
an honest man : Popery heartened, by em-
ploying suspected persons for conditions of
conveiiieiicy. The forces of his majesty in the
Palatinate withdrawn, upon Spanish faith im-
proved here and believed, by which his high-
nesses .children have lost their patrimony ; and
more money been spent in fruitless ambas-
sages, than would haw maintained an army
tit to have recovered that country. Our old
and fast allies disheartened, bv that tedious
and dangerous treaty : and the king our now
master exposed to so great a peril, as no wj*e
and faithful council would ever have advised
errors in government, more in misfortune by
weak counsels than in princes.

" The loss of the county of Poyntois in
France, was luid to bishop Wickhnm's charge
in the first of Rich. l2f for persuading the king to
forbear sending aid when it was required : a
capital crime in parliament. The loss of the
ducby of Maiue was laid to Dt la Pole duke of

the Earl of Bristol, and Lord Conway. [1270

Suffolk, 98 lien. 6, in singly and unwisely treat-
ing of a marriage in France. — A Spanish treaty
i lo<>t the Palatinate. Whose counsel hath pro-
I nounced *o great power to the Spanish ugtnt
j f «s never before) to eifect freedom to so many
priests as have been of late: and to become a
solicitor almost i.i every tribunal for the ill-
affected subjects of the state, is worth tiie
inquiry?

•* What Grants of Impositions, before cross-
! ed, hay* lately been complained of in parlia-
I ment? As that of Ale-houses, Gold-Thread,
] Pretermitted Customs, and many more: the
least of which would have, 50 Edw. 3, been
adjudged in parliament an heinous crime, us
well as those of Lyon and Latymer. — The duke
of Suffolk in the time of lien. (5, in procuring
such another grant, in derogation of the com-
mon law, was adjudged in parliament. The
gift of honours, kept as the most sacred trea-
sure of the state, now set to sale. Parliament!
have been suitors to the king to In stow those
graces; as in the times of Edw. i>, Hen. 5,
and lien. 6. More now led in, by that way
only, than all the merits of the hot deservers
have got these last f>00 years. So tender was
the care of elder times, that it is au article
'28 Hen. 0, in parliament acainst the duke of
Suffolk, that he had procured for himself, and
some few others, such Titles of Honour, and
those so irregular, that he was the first that
ever was earl, marquis, aud duke of the sell-
same place. Edward 1, restrained the num-
ber, in policy, that would have challenged a
writ by tenure : and how this proportion may
suit with the protit of the stale, we cannot tell.
Great dc seres have now no other recompence
than costly re.vurds from the king; for, we
are now at a vile piice of that which was once
inestimable. It' worthy persons have been ad-
vanced freely to places of greatest trust, I
shall be glad. Spencer was condemned in the
14 Edward 2, for displacing good servants
about the kin*;, and putting in ids friends and
followers ; not leaving either in the church or
commonwealth, a place to any, before a fine
was paid unto him for his dependence. The
like hi part was laid by parliament on De la
Pole. It cannot but he a sad bearing unto
us all, what my Lord Treasurer lately told us
ot his majesty's great debts, high engagements
and present wunts: the noi*e whereof 1 wish
may ever re»t inclosed within thc?c walls. Vor,
what an encouragement it may be to our ene-
mies, and a disheartening to our friends, I can-
not tell. The danger of those, if auv they have
been the cause, is great and* fearful. It was
no small motive to the parliament, in the time
of Henry 3, to banish the kind's half-hreitircu
for procuring to themselves so large proportion
of crown land!. Gaveston and Spencer for
doing the like for themselves, and their fol-
lowers, in the time of Edward 2, aud the lady
Ycsiy for procuring the like for her brother
Beaumont, was banished the court.. Michael de
la Pole was condemned 10 It. 2, in parliament
amongst other crimes, for procuring land! and

1271] STATE TRIALS, 2 Ch. I. 1 626.— Impeachment of the Duke of Buckingham, [1*72

pensions from the king, and having employed
the subsidies to other ends than the grant in-
tended. His grand-child, William duke oi'Suf-
folk, for the like was censured c23 Henry 6.
The great bishop of Winchester, 50 Edward 3,
was put upon the king's mercy by parliament,
for wasting in time of peace, the revenues of the
crown, and gifts of the people ; to the yearly
oppression of the commonwealth. Offences
of this nature were urged, to the ruining of the
last duke of Somerset m the time of Edward 6.
More fearful examples may be found, too fre-
quent in records. Such improvidence and ill
counsel led Henry 3 into so great a strait, as
after he had pawned some part of his foreign
territories, broke up his house, and sought his
diet at abbies and religious houses, engaged
not only his own jewels, but those of the shrine
of St. Edward at Westminster; he was in the
end not content, but constrained to lay to pawn
(as some of his successors after did) wagnam
coronam Anglitr, the crown of England. To
draw you out to life the image of former kings
extremities, I will tell you what I found since
this assembly at Oxford, written by a reverend
man, twice vice chancellor of this pluce; his
name was Gascoign : a man that saw the tra-
gedy of De la Pole: he tells you that the reve-
nues of the crown were so rent away by ill
counsel, that the king was inforced to live * de

* tallagiis populi:' that the king was grown in
debt * quinque centcna millia librarian :' that
his great favourite, in treating of a foreign mar-
riage, had lost his master a foreign duchy :
that to work his ends, he had caused the king
to adjourn the parliament * in villis et remotis

* partibus regiii/ where few people, * propter

* defectum hospiiii et victualiunf , could attend ;
and by shifting t>ut assembly from place to
place, to in force, 1 will use the author's own
word, ' illos paucos, qui remanebaut de com-

* munitate regui, concedere regi quumvis pes-
' sima/ When the parliament endeavoured by
an act of resumption, the just and frequent
May to repair the languishing state of the crown,
for all from lienrv 3, but one, till the 6 llenrv
8, have used it, this great man told the king ic
was * ad dedecus regis,' and forced him from
it : to which the Commons answered, although
' vex.tti laboribus et expensis, nunquam con-

* ccderent taxam regi/ until by authority of
parliament, ' resumeret actualiter omnia per-

* tinentia corona? Anglia,* :' and that it was ' ma-

* gis ad dedecus regis/ to leave so many poor
men in intolerable want, to whom the king
Stood then indebted. Yet nought could all good
counsel work, until by parliament that bad
great man was banished ; which was no sooner
done, but an act of resumption followed the
inrolhnent df the act of hb exilement. That
was a speeding article against the bishop of
Winchester and his brother, in the time of
Edward 3, that they had ingrossed the person
of the king from his other lords. It was not
forgotten against Gaveston and the Spencers, in
the time of Edward 2. The unhappy ministers
vf Rd. 2, Hen. 6, and Edw. 6, fell the weight,

to their ruin, of the like errors. I hope we
shall not complain in parliament again of such.

" I am glad we have neither just cause, or
undutiful dispositions, to appoint the king a
counsel to redress those errors in parliament,
at those 42 Hen. 3. We do not desire, as
5 Hen. 4, or 29 Hen. 6, the removing from
about the king any evil counsellors. We do
not request a choice by name, as 14 Edw. 2.
3. 5. It. Rd. 2, 8 Hen. 4, or 31 Hen. 6, nor
to swear them in parliament, as 35 Edw. 1,
9 Edw. 2, or 5 Rd. 2, or to line them out their
directions of rule, as 43 Hen. 3, aftd 8 Hen. 6»
or desire that which Hen. 3 did promise in his
42d year, ' se acta omnia per assensuin magna-
' turn de concilio suo electorum, et sine eorum
( assensu nihil.' . We only in loyal duty offer up
our humble desires, that since his majesty hath,
with advised judgment, elected so wise, religi-
ous, and worthy servants, to attend him in that
high employment; he will be pleased to advise,
with them together, a way of remedy for those
disasters in state, brought on by loug security
and happy peace ; and not be led with young
and single counsel/'

On the 12th of August, less than a week
after the delivery of tins Speech, this first par-
liament of King Charles was dissolved. He
soon afterwards convened a second, which as-
sembled on Feb. 6th, 1626, presently after
which the house of commons busied itself in
getting materials for exhibiting Articles agaiost
the duke of Buckingham. Their Committee on
Grievances mads.* several reports, " That tbey
had learned the reason why our merchant ships
and goods were seized in France, was because
our admirals had seized the goods of that na-
tion in several ports of England, particularly
in die ship called the Peter of Newharen;
which was brought into Plymouth by order of
the duke, after the king and council had ordered
it to be restored upon a just claim, and tbe
court of admiralty had also released her : that
23 bags of silver and 8 bu<*s of t»old, taken out
of this ship, were, by sir Francis Stewart, de-
livered to the lord duke: that till this action,
the French did not begin to seize any English
ships or goods ; and that the duke, liaving no-
lice of it, said, he would justify the stay of the
ship by an express order from the king!"

The king in a speech expressed his strong
attachment to Buckingham, * hut the spirit

* " Some men," says May, " wondered to
see the new king suddenly linked in such au in-
tire friendship with the duke of Buckingham, for
extraordinary favourites do usually eclipse and
much depress the heir apparent ot a crown, or
else they arc conceived so to do, and upon that
reason hated and ruined by (he succeeding
prince, in which kind all ancient and modem
histories are full of examples. In the begin-
ning of king Charles his reign a parliament was
called and adjourned to Oxford, the plague ra-
ging extremely at London, where the duke of
Buckingham was highly questioned, not with-
out the (rief and sad presage of many people

1273] STATE TRIALS, 2 Ch. I. 1 620.— the Earl of Bristol, and Lord Camay. [1274

raised against the minister could not be sup-
pressed by any thing the king could do ; and
no Supply was to be expected till the Duke
was given up to the public vengeance. The
Commons followed the chacc very warmly
against him; and, in some of their Debates,
very severe expressions were used against the
court ; particularly Mr. Clement Coke (son of
sir Edward Coke,) said, " That it was better
to die by an enemy than to suffer at home.''
And another member, Dr. Turner, a physician,
proposed to the house the following Queries,
against the Duke, grounded upon Public Fame.

1. " Whether the Duke, being Admiral, be
not the cause of the loss of the king's royalty
in the narrow seas? 2. Whether the unreason-
able, exorbitant, and immense gift of money
and lauds, on the Duke and his relations, be
not the cause of impairing the king's revenue,
and impoverishing the crown ? 3. Whether the
multiplicity of Ofhccs conferred upon the Duke,
and others depending upon him, whereof they
were not capable, be not die cause of the evil
government of this kingdom ? 4. Whether Re-
cusants, in general, by a kind of connivency,
be not borne out and increased, by reckon the
duke's mother and father-in law were known
papists ? 5. Whether the Sale of Offices, Ho-
nours, and places of judicature, with eccle-
siastical livings and promotions, a scandal and
hurt to the kingdom, be not through the Duke !
6. Whether the Duke's stayiug at home, being
Admiral and General in chief of the sea and
land army, was not the cause of the bad suc-
cess and overthrow of the late action ; and whe-
ther he gave good direction for the conduct of
that design ?"

Upon occasion of this Speech of Mr. Coke,
and these Queries of Dr. Turner, the kiug
thought fit to send a reprehensive Message to
the House of Commons. These transactions

Sive rise to Debates reported in 2 Cobb. Pail,
ist. in which part was taken by Seldcn, Ilolle,
Wentworth, Wylde, and other eminent persons,
among whom the notable Mr. Noy spoke in
the Duke's disfavour. Other parliamentary pro-
ceedings respecting Buckingham are reported in
3 Cobb. Pari. Hist, and Rushw. Coll. but they
do not assume the character of a State Trial,
till we find Digby Earl of Bristol, so much con-
cerned in the late Negotiations in Spain, about
the Match, &c. on his return from thence, com-
mitted prisoner to the Tower. This Earl had
been also examined by a Committee of lords,
appointed by the king, touching those affairs ;
and certain Propositions were made to him in
order to his release, and composing the differ- '

that private affections would too much prevail
on him against the public. He was protected ,
against the parliament, which for that only pur- '
poae was dissolved, after two Subsidies hud beeu j
aiven, and before the kingdom received relief
in any one Grievance, as is expressed in the
first and general Remonstrance of this present ,
parliament, where many other unhappy passages
of those timet are briefly touched," I

i ences between the duke of Buckingham and
* hiiu. On his refusal, in some measure, to com-
' ply with the terms, the lord Conway, secretary
I of state, wrote to him the following Letter, and
received his Answer to it;

The Lord Conway to the Earl of Bristol.

" My lord ; I received a letter from your
lordship, dated the 4th of this month, written
in answer to a former letter which I directed
to your lordship, by his majesty's command^
incut. This last letter, according to my duty,
I have shewed unto his majesty, who hath pe-
rused it, aud hath commanded me to write back
to you again, that he finds himself nothing satis-
fied therewith. The question propounded to
your lordship, from his nujeaty, was plain and
clear, Whether you did rathei chase to sit still
without being questioned for' any errors passed
in your Negotiations in Spain, and enjoy the
benefit of the late gracious pardon granted in
parliament, whereof you may ha\e the benefit:
or whether, for the clearing of your innocency,
(whereof yourself, and your friends and fol-
lowers, are so confident) you will be content
to wave the advantage of that pardon, and put
yourself into a legal way of examination for
the trial thereof. His majesty's purpose there-
by, is not to prevent you of any favours the
law hath given you ; but if your assurance be
such as your words and letters import, he con-
ceives it stands not with that public and reso-
lute profession of your integrity to decline your
trial. His majesty leavt-s the choice to yourself,
and requires from you a direct answer, without
circumlocution or bargaining with him for fu-
ture favours before hand ; but if you have, a
desire to make use of that pardon which cannot
be denied you, nor is any way de?irtd to be
taken from you, his majesty expect-* you t>houM
at the least forbear to magnify your service,
and, out of an opinion of your innocency, cast
an aspersion upon his majesty's justice, in not
affording you that prtseut mines* of liberty
and favour which cannot be drawn from him,
but in his good time, and according to his good
pleasure. Thus much I have in commandment
to write to your lordship, and to require your
answer clearly and plainly by this messenger,
sent on purpose for it, and so remain,

Your lordship** humble servant,
Whitehall, March 24, 1G26. " Cokway.''

The Earl of Bristol to the Lord Conway.

" My lord ; I have received your letter of
the 21th of March, the 28t»», and I am infi-
nitely grieved to understand, that my former
answer to yours of the 1th of March hath not
satisfied his majesty, which I will endeavour to
do to the best of my understanding ; and, to
that end, shall answer to the pai ticular points
of your present letter with the greatest clearness
I am abie. First, Whereas you say in your
Inter, That the question propounded to me
was plain and clear, \iz. Whether I would
chuse to sit still without being questioned for
any errors passed in my negotiations in Spain*

1275] STATE TRIALS, 2 Ch. 1. 1020.— Impeachment qfthe Duke qf Buckingham, [1276

and enjoy the benefit of the lace gracious par- j his majesty's justice; to this point I answer,
dun, whereof I may take the benefit? Or whe- ! That as I hope 1 shall never err in that sort of
ther, being content to wave the advantage of immodesty, of valuing my services, which I ac-
that pardon, I should put myself into a legal knowledge to have been accompanied with inri-
way of examination ibr the trial thereof? &c. '■ nite weakness and disabilities; so I trust it shall
1st, Your lordship may be pleased to remember | not displease, that I make use, to mine own
your last proposition was, Whether I desired , comfort, and the honour of my posterity, of
to rest in the security 1 was in ? which you ; those many written testimonies, which my late
now express, Whether I will chuse to sit still ? [ most blessed master hatli left me, of his gracioui
^ndly, Your proposition was, Whether I would ' acceptance of my services for the space of 20
acknowledge the gracious favour of his ma- ' years; And likewise I hope the modest avowing
jesty that now is, who hud been pleased not to of mine innocency will not be thought to cast
question my actions? When it is best known ; any aspersion upon his majesty's honour or jos-

to your lordship, That, by a commission of the
Jords, I was questioned upon 'JO Articles, di-
vers involving felony and treason : although it
be true, That, when I had so answered (as I
am coufident their lordships would have cleared

tice. I must freely confess unto your lord-
ship, I am much afflicted to see inferences of
this nature made, both in your lordship's last
letter and in this. For if it shall be inferred,
as a thing reflecting upon the king's honour,

me) I was so unhappy as their lordships never \ then a man questioned :dm!l not endeavour to
met more about that business. — Hut now your j defend his own innocency before he be cun-
propobition is, Whether 1 will now chusc to sit victed, it will be impossible lor any man to be
still without being further questioned for errors sale ; for the honour of his majesty is too sacred
passed ? Whereas before it was required I a thing for any subject, how innocent soerer,
should acknowledge that I have not been ques- ! to contest against. So likewise, Cod forbid
tioned at all; which is a different thing. But . that it should be brought into consequeuces,
conferring both your letters together, and ga- I as in your former letter, as a tax upon the
thering the sense and meaning, by making the government and justice of his late majesty, and
latter an explanation of the former, which I : majesty that now is, that I should have smfered
could have wished your lordship would have ' so long time, not being guilty. For as 1 never
more clearly explained, I return unto your have been heard so much as to repine of injos-
lordship this plain and direct answer. That I tice in their majesties, in all my sufferings, so I
understand, by the security I am in, and sitting well know, that the long continuance of my
still, and not being further questioned, that 1 troubles may well be attributed unto other
am restored to the bare freedom and liberty of causes, as to my own errors of passion, or other
a -subject and peer: for if a man be called in ' accidents; for your lordship may well reraem-
question by his majesty, yet afterwards his ma- , ber, that my affairs were, almost two yean
jesry shall be pleaded, out of hi*j goodness, that since, upon "the point of a happy acconunoda-
he rt-ra quiet and secure, and that he shall not tioii, had it not been interrupted by the un far-
be fu: titer questioned; I conceive that it is not j tunate mistaking of the speeches I used to Mr.
apparent that his liberty naturally revolveth ; Clark. I shall conclude by intrcntii:2 >ouf
unto him, when by his majesty's grace jie is < lordship's favour, that I may understand from
pleased to declare he shall not be further ques- | you, as I hope lor mycomfort, that this letter
tioned, but may live in further security. So ' hath tiven Ins inaje>tv satisfaction; or if there
that, understanding your letter in this sort, (for , should yet remain any scruple, that I may hare
no direct answer can he made, until the sense ! a clear and plain signification of the kings plea-
of the question Le truly stated) I do most hum- i sure ; which I shall obey with all humility,
bly acknowledge and accept his majesty's grace ; Your Lordship's humble servant, Bristol."
and favour, and shall not wave any thing that ! After thi* the Karl petitioned the house of
shall come to me by the pardon of the 21 Jac. I lords, and shewed, '* That he, being a peer of
nor by the pardon of his majesty's coronation. ! this realm, had not received a summons toprj-

Aud am so far from bargaining, as you are
pleased to express it, for future favour (though

liameut, and desired their lordships to mediate
with the kin*;, tliat he might enjov the liberty

h->pe my humble and submissive courses of of a subject and the privilege of his peerage,
petitioning his majesty neither hath nor shall { after almost two years restraint without being

deserve so hard an expression) that I shall not
presume so much as to press for any favour,
until my dutiful and loyal behaviour may move
his majesty's royal and gracious heart thereunto ;
but receive, with all humbleness, this my free-
dom and liberty, the which I x\\:\\\ only make
use of in such sort, as I shall judge may be
moat agreeable to his majesty's pleasure. As for
the 2nd part of your letter, wherein you say,
That if I desire to make use of that pardon, his
majesty expects that I should at least forbear
to magnify my services; or, out of an opinion
0f my own innocency, cast an aspersion upon

brought to a trial : ami, if any charge was
brought against him, he prayed that he nncht
be tned by parliament." I'pon the receipt »/f
this petition, the lords referred it to the com-
mittee of privileges: from whom the earl of
Hertford reported, ** That it was necessary frf
their lordships humbly to beseech his majostj
to send a writ of summons to the eail of b*nV
tol ; as also to such other lords whose wnts
are stopped, except such as are made iiucapt-
ble to sit there by judgment of parliament, or
some other legal course." Hereupon the duke
of Buckingham signified to the house, That

W77] STATE TRIALS, 2 Ch. I. \CM.—the Earl of Bristol, and Lord Conway. [127$

upon the carl's Petition to the king, liis ma* | tioneth your lordships, That having been, fur
jesty had suit him his writ of summons ; and, I the space of two years, highly wronged in point
withal, shewed (he lords a copy of a letter, j of liis liberty and of his honour, by many binis-
wrote from the king to the said earl, dated I ter aspeisions which have been cast upon him,
Jan. 20, 16'-? 5, the tenor of which follow it h : I without being permitted to answer for himself;
" We have read your lftter addressed unto ! which hath been done by the power and indus-
us by Buckingham, and cannot but bonder try of the duke nf Buckingham, to ke»p him
that you should, through forgetfulncss, make ! from the presence of his majesty and the par-
request to us of favour, as if you stood evenly liament, lest he should discover many crimes
capable of ir, when you know what ymir beha- concerning the «nid riuUc : — lie therefore most
viour in £pain deseivcd of us, » Inch you are to humbly bescecheth, That he nipy be heard,
examine by the observations we made, and j both in the point of his Wrong, and of his Ac-
know you well remember ; how, at our first I cmation of the said duke: Wherein he will
coming in Spain, taking upon you to he so wise, ! make it appear, how infinitely the s:iid duke
as to foresee our intention to change our reli- \ liath abused their majesties, the state, and both
gion, you were so fur from dissuading u«, that j the houses of parliament. And this, he is most
you ottered your advice and scire.? v to concur ■ confident, will not be denied, since the court of
in it: aud, in many other conferences pressing J parliament never re fuseth to hear the poorest
to sliew how conw'iutnt it w:?s to be a Konuui subject seeking for rcdrtss of wrongs, nor the
Catholic, it being impossible, in your opinion, ! accusation aguiiut any, be he never so power-
Co do any great action otherwise; aud how ! ful. Aud herein he beseecheth your lordships
much wrong, disadvantage, and disservice you ! to mediate to his majesty for your suppliant's
did to the Treaty, and to the rig lit and. interest ' coming to the hou»e, in such soit as you shall
of our dear brother and sister, and their chil- ' think fatting; assuring his majesty that all he
dren ; what disadxunta^e, inconvenience, and ' shall say, shall not only tend to the service of
hazard you intaugled us in by your artihees, his majesty and the state, but highly to the ho-
putting off aud delaying our return home ; the nour of his majesty's royal person, and of his
great estimation you made of that state, aud ! princely virtues : and your suppliant shall ever
the low pice you set this kingdom at ; still pray for your lordships prosperity. BfiisiOL."

maintaining, that we, under colour of friend-
ship to Spain, did what was in our power
against them, which they said you very well
knew : And, last of all, your approving of
those conditions, that our nephew should be
brought up in the emperor's court ; to which
sir Walter Aston then said, Th;st he durst not
give his consent for fear of his head : Your
replying unto him, That without some such
great action, ucither marriage nor peace could
be had."

There is no Answer to this Letter in the

irion from the l.arl,ad.lrewetl to the lords, I ""endance here »to be forbom. An, herein
hi. mxivine hit writ <.f son.uioi.s ; to which ! f Hou,'f not lM.\?UT. '•""■'I* ""' ««d,l.T £,T<:
annexed tl.t- Lord Kcq-er's Utrcr and his j »» «"»J«*J sat.siact.on : And »o I commend

The Lord Keeper to the Earl of Bristol ; dated
Dorset-court, March 31, 1626*.

a My very eood lord ; By his nnijcstv** com-
mandment, I herewith send unto your lordship
your writ of summons for the parliament ; but
withal signify his majesty's pleasure herein
further, That howsoever he gives way to the
awarding of the writ, yet his meaning i< theie-
bv not to discharge anv fonr.'.r direct io*:* lor
restraint of your iord>hip*s coin:::g hither : but
that you continue under the same n >tr.ct on a«
Journals:" liu\ 'intend <7 n^e'tmTnnother j J011^ ^^ .so as your lordship^ personal

Peti

on I

Answer, uiul desired to be beard in Accusation I °V "!ri lce very heartily unto your lonUnp. and
of the Duke ' rtmam» vour *°rd»h»p * a^nrcd inei;n ;m<» ser-

1 vant, " Thumai CovrintY, (.'. S."

The Humble Petition of John, Earl of Bristol. '

** HumbK shewing unto your lordships, That
lie hath lately received hit writ of summons to
parliament, lor which he returned unto your
lordslups most humble thanks ; but, jointly
with it, a Letter from my Lord Keeper, com-
manding him, in his majesty's name, to forbear
bis pergonal at'enduuee; and nltltnugii he shall
ever obey the least intimation of his majesty's
pleasure, yet he most humbly otlercth unto
your lordships wise consideration*, as too high
m point for him, how far this may trench upuu
file liberty and i
authority of thei

'fjort discharged by a letter missive ot any
iact, without
lordships due
Copy of the said

tbftmmo.— He further humbly p

The F.arl of Bristol's Answer to the Lord
Keeper; dated fehcrbum, April 12, IG26.

" May it please your lord*'. ";p ; I hatv re-
ceived your 1 .rdbhip's letter of the SIM of
March/ard with it, hi"* iikijpmv's wiit 'I* sum-
mons for the parliament. In the ore hi* ma-
jesty coiiiiuaui!c?h ine. th.it all excucs Mt
aside, up jn my faiiii and udtgu'ncc I fail nut
to come and atte-d hi** in»ie.sty ; and this un-
der the ir-ear. seal «f Kokand. In the other,
as in a 1« Uer miu^vc, hisinaje-ty's pleasure i-*
safety of the peers, and die , intiiualid by your lur-Miip that iny pervjnnl
ir letter, patents, to be in th:s I attendance should be f »rbor;i. I mu»t rj*\m
_ )»? a letter missive of any sub- ■ leave ingenuously to confess unto y«ur lordship
the' kine's hand ; and, for vour ! that I want judgment rightly lo direct ii.yvu
information, he hath annexed a ' in this ci^e ; a> likewise, that I um ljiiiorjn.T
id Lord Keeper's Letter, and IjfJ how tar tin* max frcuch upon the prisdi-Krs .,f

•I

the peers of t!:i> Jaixi, and upoo nnue &*•->

1979] STATE TRIALS, 2 C*. t 1626.— Impwhmtntqf the Duke of Buckingham, [1250

sure, whereunto I shall, in all things, most du-
tifully and humbly conform myself! And so,
with my humble service to your lordship, I re-
commend you to Qod's holy protection, and
remain, your lordship's most humble servant,

Bristol."

•afety Jrereafter : for if the writ be not obeyed,
the law calleth it a misprision, and highly fine-
able, whereof we have had late examples ; and
a missive letter being avowed or not, it is to be
doubted would nut be adjudged a sufficient dis-
charge against the great seal of England : on
the other side, if the letter be not obeyed, a
peer may, de facto, be committed upon a con-
tempt in the interim, and the question cleared
afterwards: so that in this case it is above mine
abilities. I can only answer your lordship that
I will most exactly obey ; and to the end I
may understand which obedience will be, in all
kinds, mo§t suitable to my duty, I will presently
repair to my private lodging at London, and
there remain, until, in this and other causes, I
shall have petitioned his majesty and understand
his farther pleasure. Ft.r the second part of your
lordship's letter, where your lordship saith,
* That his majesty's meaning is not thereby to
discharge any former directions for restraint of
your lord- hip's coming hither, but that you con-
tinue under the same restriction as before ; so
that your lordship's personal attendance here
is to be forborn. I conceive your lordship in-
tendeth this touching my coming to parliament
only ; for as touching my coming to London,
I never had at any tune one word of prohi-
bition, or colourable pretence of restraint ;
but, on the contrary, having his late majes-
ty's express leave to come to London to follow
my affairs, out of my respect to his majesty
then prince, and to the duke of Buckingham,
J forbore to come, uutil I might know whether
my coming would not be disagreeable unto
them. Whereunto his majesty was pleased to
answer, both under the hand of the duke, and
of Mr. Secretary Conway, That he took my
respect unto him herein in very good part, and
would wish me to make use of the leave the
king had given me. Since which time I never
received any letter or message of restraint, only
his majesty by his letter bearing date in June
last, commnndeth me to remain' as I was in
the time of the king his father; which was
with liberty to come to London to follow my
own affairs as I pleased, as will appear unto
your lordship if you will afford me so much
favour as to peruse it. I have writ thus much
unto your lordship because I would not, through
misunderstanding, full into displeasure by my
coming up, and to intreat your lordship, to
inform his majesty thereof: And that my lord
Conway, by whose warrant T was only restrain-
ed in the late king's time, of famous memory,
may produce any one word, that may have such
as any colourable pretence of debarring my
coming up to London. I beseech your lordship
to pardon my desire to have things clearly un-
derstood ; for the want of that formerly hath
caused all my troubles ; and when any thing is
misinformed concerning me, I have little or no
means to clear it ; so that my chief labour is
to avoid misunderstanding. I shall conclude
twith beseeching your lordship to do me this fa-
Your; to let his majesty understand, that my
tomiug up is only rightly to understand his plea-

April 21. The Lord Keeper delivered this
Message from the King to the house of lords :

" That his majesty hath heard of a Petition
preferred unto this house by the carl of Bristol,
so void of duty and respect to his majesty, that
he hath great cause to punish him : That ha
hath also heard with what duty and respectful-
ness to his majesty their lordships have pro-
ceeded therein, which his majesty conceivetli to
have been upon the knowledge they hare that
he hath been restrained for matters of state;
and his majesty doth therefore give their lord-
ships thanks for the same, and is resolved to pot
the cause upon the nonour and justice of their
lordships and this house. And thereupon ha
majesty commanded him (the lord keeper) to
signify to their lordships his royal plea* ore,
That the carl of Bristol be sent for as a ddio-
quent, to answer in this house his offences com-
mitted in his Negotiations before his majesty's
being in Spain, his offences whilst he was in
Spain, and his offences since his majesty's
coming from Spain ; his scandalizing the duke
of Buckingham immediately, and his majesty
by reflection, with whose privity, and by whose
directions, the duke did guide his actions, tod
without which he did nothing. All which ha
majesty will cause to he charged against bin
before their lordships in this house."

The Lords appointed a Committee to attend
the King, and to present their humble thaaki
to his majesty, for the trust and confidence be
had placed in the honour and justice of their
house.

During the recess of parliament the date
of Buckingham was taking great pains to ward
off the blow intended against him by the Com-
mons*, in which the king was hi* principal agent;
but in vain, for that house was resolved to carry
on the prosecution against him.

April 20. The Commons resolved upoo the
question, " Thnt setting all other business aside,
they would proceed in the great Affair of the
duke of Buckingham, morning and after noon,
till it was done, to the end that they might
next proceed to the consideration of satisfac-
tion to his majesty's Message about the Supply *

The Earl of Bristol charged with High Tres*

son.

But whilst the Commons were busy in mrnr-
ing on, what is called in their Journals, ' The
Cause of Causes,' and finishing their Articles
against the Duke, the Lords were employed in
the Trial of the earl of Bristol.

May 1 . The Usher of the black rod broof M
the said Earl to the bar, where he was ordered
to kneel, because he was accused of High Trea-
son : when the Lord Keeper acquainted hint
" That the king had commanded his AttoptJ

I2S1] STATE TRIALS, «Cii. I. 1020.— the Earl of Bristol, and Lord Conway. [12S3

General to charge his lordship with High Trea-
son, and other Offences and Misdemeanors of
a very high nature, that they might proceed in
a legal course qgainst him, according to the jus-
tice and usual proceedings of parliament."

Then (he Attorney General, sir R >b. Heath,
exhibited the fallowing A nicies, as a Charge
■gainst the said Eail. — But when lie had begun
to read the said Charge, (he Bail interrupted
him, and said, u That lie had exhibited his Pe-
tition to the house, that he might come up
rod be heard in his Accusation against the
duke of Buckingham ; and that, thereupon,
be, being a peer of this realm, vva9 charged
with High Treason. That he had heretofore
informed the late king, of blessed memory, of
the unfaithful service of the said duke ; and
thereupon the duke laboured that he might be
clapped up m the Tower* presently after his
return out of Spain : and culled upon the lord
chamberlain to testify wiiei her the lord marquis
Hamilton had not told hi*u as much. That tue
ddke hud, since, laboured to keep him from
this kind's presence, and now he was charged
frith Treason. That he had . been often em-
ployed, as ambassador, iu weighty affairs, and
never came home tainted ; and, at his last com-
ing out of Spain, he laboured the late king
fanes, that he might he heard before himself,
ind his majesty promised it. I pray God, (said
the Earl) that promise did him no hurt, for he
died soon after. For the said king's promise,
lie vouched the lord chamberlain : and earnestly
desired their lordships to take all these into
their considerations; and to consider, also, that
this house is already possessed of his said Pe-
tition and his Accusation of the said duke; and
required that their lordships would first receive
his Charge against the lord Conway, and not
to invalidate his testimony against them by the
king's charge against him. lie protested, that
be spoke for the king ; that he was a peer and
& frve man of the realm; and desired not to be
impeached until his Charge, which was of so
aigb n nature, was first heard.1'

Reticles op Impeachment against toe
Earl of Bbistol.

The Earl then tendered to the house his Ar-
;ic!es, in writing, against the lord Conway,
*bich the lords received ; and, being with-
drawn, the'Petition of the said Earl presented
:o the house on the 19th of April, wherein he
lesired he mi^ht he heaid in his Accusation
igainst th'.* Duke, was read ; nnd, after a long
iebate, it was agreed upon the question, That
Jje Karl's Charge against the Duke and against
;he lord Conway, should be' presently read; all
ivhich were read by the Attorney General, as
folio as:

" Articles of several High Treasons, and
oilier great and enormous Crimes, Of-
fences, and Contempts, committed by John
Earl of Bristol, against our late Sovereign
Lord King Jame-, ol blessed memory, de-
ceased, and our Sovereign Lord the King's
Majesty, which not? is ; wherein the said

VOL, II.

Earl is charged, hy his Majesty's Attorney
General, on his Majesty's behalf, in the
mo>t High and Honourable Court of Par-
liament, before the King and his Lords
there.

" OFrtwcBS done and committed by the Earl
ot Bristol, before his majesty's going into
Spain when he was Prince.

I. " That the said earl being trusted and
employed by the said late king as his ambassa-
dor to Ferdinando, then and now emperor of
Germany: to Philip 4, then and now kiig of
Spain, in anuis 1621, 2, and 3. And ha\ing
commission, and particular and special direc-
tion, to treat with the said emperor and the
king of Spain, for the plenary restoring of such
parts of the dominions, territories, and pos-
sessions of the count Palatine of the Rhine,
who married the most excellent lady Elizabeth
his now royal contort, the only daughter of the
late king James; which were then wrongfully,
a.: I in hostile manner taken, and possessed
with and by the armks of the said emperor,
and king of Spain, or any other : and for pre-
serving and keeping such other parts thereof,
as were not then lost but were then in the
protection of the said late king James ; and to
the use of the said count Palatine and his chil-
dren : and for the restoring of tie electoral
dignity unto them : and also to treat with the
said king of Spain, for a Marriage to be had
between the most high and excellent prince
Charles, then Prince of Wales, the only son and
heir apparent of the said king James, and now
our most sovereign lord, and the most illustrious
lady Donna Maria the Infanta of Spain, sister
to the now king of Spain : he the said earl,
contrary to his duty and allegiance, and con-
trary to the trust and duty of an ambassador,
at Madrid in the kingdom of Spain, to advance
and further the designs of the said king of
Spain, against our said sovereign lord, his chil-
dren, friends, and allies; falsely, wilfully, and
traitcrously, and as a traitor to our said late
sovereign lord the king, by sundry letters* and
other messages sent by the said earl from Ma-
drid, in the years aforesaid, unto king James
and hi- ministers of state of England, did confi-
dently and resolutely inform, advise, end as-
sure the said late kiny, that the «md emperor
and king of Spain would real.y, fully, and effec-
tually make restitution and plenary restoration
to the said count Palatine and hi" • hildren of
the said dominions, territories, and p< sessions
of the said count Palatine, ami of the Skid elec-
toral dignity : arid that the said king of Spain
did really, fully, and effectual I v int< nd the said
Marriage beiw* en the >aid lndy his si.ster, and
the said prince our now soveietgn lord, accord-
ing to articles formerly propounded between
the said kings: whereas in truth tlu said em-
peror and king of Spurn, or either of them,
never really intended Mien restitu ion us more-
sand: and whereas thes.iid knif of Spoilt mver
i railv intended the murriai;e according to those
article* propounded; but the said cuiuerac

4 v

1253] STATE TRIALS, 2 Ch. I. l626.—hnpeaclmicnt qfihc D. of Buckthorn, [1384

and tiki king of Spain intended only by those
Treaties, to gain time to compass their own
ends and purposes, to the detriment of this
kingdom ; or all which, the said earl of Bristol
neither was nor could be ignorant ; and the
said Lite king James by entertaining tho^e
Treaties, and continuing thenr upon those false
assurances, given unto bim by the said earl, as>
aforesaid, was made secure, and lost the oppor-
tunity of time : and thereby the said dominions,
ten it ones, and possession* ot the said count
Palatine, and the electoral dignity, became
utterly lost; and some parts thereof' were
taken out ot* the actual possession or' ti;c said
king James, unto whose protection and s-ife
keeping they were put and committed by the
said count Palatine; and ihe most excellent
l'.tdy Kli/abeth his wife, and their children, are
now utterly dispossessed and bereaved thereof;
to the high dishonour of our said late sovereign
lord king James, to the di*heri:>ou of the said
late king's childicn and their posterity of their
antient patrimony : and to the disanimating
and discouraging of the rest of the princes of
Germany, and other kings and princes in amity
and league with bis majesty.

II. u That the said earl of Bristol, being am-
bassador for his lute majesty king James, as
aforesaid, in the years aforesaid, and having
received perfect, plain, and particular instruc-
tions and directions from his said late majesty
that he should put the king of Spain to a speedy
and punctual answer, touching the Treaties
aforesaid: and the said earl well understanding
the effect of those instructions and directions so
given unto him, and taking precise knowledge
thereof: and also knowing now much it con-
cerned his lite majesty in honour and safety (as
his great affairs then stood) to put these Trea-
ties to a speedy conclusion : yet nevertheless
he the said earl, falsi y, wilfully and traiterously,
contrary to his allegiance, and contrary to the
trust and duty of an ambassador, continued
those Treaties upon generalities, without effec-
tual pressing the said king of Spain unto par-
ticular conclusions according to his majesty's
directions as aforesaid ; and so the said earl
intended to have continued the said Treaties
upon generalities, and without reducing them to
certainties and to direct conclusions, to the
high dishonour of his s.tnl late majesty, and to
the extreme danger and detriment of his ma-
jesty's person, hi>cro»wi and dominions, confe-
derates and allies.

III. u That the said earl of Bristol, being
ambassador for Ids said Inte majesty as afore-
said, in the years aforesaid, to the intent to
discourage the sad late kin£ James Iran the
taking up of unu-., and entering into hostili'y
with the said king of Spnin, and for renting
bim and Ins force* I'mm atte opting the inva-
sion ot hi* said late majesty's dominion*, ai.d
the dominions of hi-* said late majesty's confe-
derate*, friends and allies; the said king of
Spain having long thirsted alter an universal
monarchy in the»e western p^rts of the world,
hath many tunes, both by words and letter* to

the said late king and his ministers, extolled
and magnified the greatness and power ot the
said king of Spain : represented unto his said
late majesty the supposed dangers which would
ensue unto him, if a war should happen be-
tween them ; and affirmed and insinuated unt.i
his said late majesty, 1 hat if such a war should
ensue, his said late majesty during the rest of his
life, must expect neither to hunt nor hawk,
nor e it his mi at in quiet: whereby the said
earl of Bristol did, cunningly and traiterously,
strive t*> letard the resolutions of the said lata
king to declare hirmelt an enemy to the said
king of Spain, who under colour of Treaties
and Ailnnces, had so much abused him, and
to resi»r his arms ami forces; to the loss of op-
poi lunity of time, which cannot be recalled or
re gained, and to the extreme danger, dishonour,
and detriment of this kingdom.

IV. u That the said earl of Bristol, upon
his dispatches out of this realm of England, on
his ambassage aforesaid, hud communication
with divers persons of Loudon, within this realm
of England, before his going into Spain, in and
about his nmbassage concerning the said Trea-
ty ; for the negociation w hereof the said earl
was purposely sent: and he the said earl being
then told, that there was little probability that
these Treaties would or could ever have any
good success, he the said earl acknowledged as
much; and yet, nevertheless, contrary to hie
duty and allegiance, and to the faith and trust
of an ambassador, he the said earl said and
affirmed, ' That he cared not what the success
thereof would be ; for he would take care to
have his Instructions perfect, and pursue turn
punctually ; and howsoever the business went,
he would make bis fortune tbeieby,* or used
words at that time to such effect; whereby it
plainly appeareth, That the said earl, from tht
beginning herein, intended not the service or
honour of his late majesty, but his own Corrupt
and sinister end*, and for his own advance-
ment.

V. '•' That from the beginnina of his Nego-
ciation, and throughout the whole mating n£
thereof by the said earl of Bristol, and du.iug
his said ambassage, he the said earl, contrary
to his faith, and duty to God, the true religion
professed by the t lurch of England, and die
peace of this Church and State, did intend and
resolve, That if the said Marriage, so treated
of as aforesaid, should by liis ministry be effect-
ed, that thereby the Romish religion and pro-
fessors thereof should be advanced within thif
realm, and other his majesty's realms and domi-
nions, and the true religion ajid professor!
thereof discouraged and di>couuteitanced : and
to that end and purpose, the said earl during
the time aforesaid, hv letters unto hi* late ma*
jesty and otherwise, often counselled and per-
suaded his said laic majesty to set at liheri)'
the Jesuits and 1'nests of the Romish religion:
which according to the good, religious and po-
litic laws of this kingdom, were imprisoned or
restrained; and to grant and allow uoto the
Papists and Professors of the Homish ftkfioa

1935] STATE TRIALS, £ Cm. I. 1026.— the Earl o/Brixol, and Lord Conway. [1986

free toleration, and silencing of all laws made,
and standing > force against them.

VI. *• That by the fals^In formations and
Intelligence of the said earl of Bristol, during
the time afore&*id, unto his Said late majesty
and to his majesty that now is, being then
prince, concerning the said Treaties, and by
the assurances aforesaid given by the said earl:
his said late maje>tv, and the prince,, his now
majesty, being put in hopes, and by the said
long delay used, without producing any effect,
their majesties being put into jealousies, and
just suspicion that there was no such sincerity

used towards them as they expected, ihough
so many assurances from the earl on their part
had been undertaken ; the said prince, our
now gracious sovereign, was inforced, out of
bis love to his country, to his allies, friends,
and confederates, and to the peace of Chris-
tendom, who all suffered by such intolerable
delay, to undertake in his own person, his long
and dangerous journey into Spain ; that there-
by be might either speedily conclude those
Treaties, or perfectly discover that, on the em-
peror's and the king of Spain's part, there was
no true and real intention to bring the same
to conclusion, upon any tit and honourable
terms and conditions : and did accordingly and
speedily break them off. By which journey,
the person of the said prince, being then heir
apparent to the crown of this realm, and in his
person, the peace and safety of this kingdom,
did undergo such apparent and such inevitable
danger, as at the very remembrance thereof,
the hearts of all good subjects do even tremble.

Of fences done and committed by the said
Earl, during the Time of the Prince's being
in Spain.

VII. " That at the Prince's coming into
Spain during the time aforesaid, the earl of
Bristol, cunningly, falsely, and traiterously,
moved and persuaded the prince, being then m
the power of a foreign king of the Romish reli-
gion, to change his religion, which was done in »
this manner. At the pri ore's first coming to
the said ear), he asked the prince for what he
came thither ; the prjnce, at first not conceiv-
ing the earl's meaning, answered, * You kuow

* as well as 1/ The earl replied, ' Sir, servants
4 enn never serve their masters industriously, al-
' though they do it faithfully, unless they know
' their meanings fully. Give me leave there-

* fore to tell you what they say in tbe town i»
4 the cause of your coming, That you mean to
' change your religion, and to declare it here.'
And yet cunningly to disguise it, the earl add-
ed further; * Sir, I do not speak this that I

* will persuade you to do it, or that I will pro-
4 mise yon to follow your example, though you
4 *wiM do it ; but, as your faithful servant, if you
4 will trust me with so great a secret, 1 wiilen-

* deavour to curry it die discreet est wny I can/
The prince being moved at this unexpected
motion* again, said unto him, * I wonder what
4 you have ever found in me, that you should
4 conooive I would be so base and -unworthy, as

' for a wife to change my religion/ The said
earl replying, ' He desired the prince to par-

* d<>u huu, if he had offended him, it was but

* out of his desire to serve him/ Which
persuasions of- the said earl were the more
dangerous, because tbe more subtile; where-
as it had been the duty of a faithful ser-
vant to God and his master, if lie had fouud
the prince staggering in his religion, to have
prevented so great an error, und to have per-
suaded him against it, so to have avoided the
dangerous consequence thereof, to the true re-
ligion and to this slate, if auch a tiling should
have happened.

VIII. " That afterward, during the Prince's
being in Spain, the said earl having conference
with thebaid prince about theKoniibh religion,
he endeavoured, falsely and traiterously, to per-
suade the prince to change his religion as a-
forcsaid, and become a Romish Catholic, arid
to become obedient to the usurped authority of
the pope of Rome ; and, to that end and pur-
pose, the said earl traiterously used these words
unto the snid prince : ' That the state of Eng-
1 laud did never any great thing, hut when.
1 they were under the ubedience of the pope of
' Rome ; and that it was impossible they could

* do any thing of note otherwise/

IX. " That, during the time of the Prince's
being in Spain as aforesaid, the prince consult-
ing and advising with the said Earl and others
about a new offer made by the king of Spain,
touching the Palatinate ; which was, that the
eldest son of the prince Palatine should marry
with the emperor s daughter, but must be bred
up in the emperor's court ; the said Earl deli-
vered his opinion, that the proposition was rea-
sonable ; whereat when sir Walter Aston, then
present, falling into some passion, said, that he
durst not for his head consent unto it, the earl
of Bristol replied, that he saw no such great
inconvenience in it, for that he might be bred up
in the emperor's court in our religion. But,
when the extreme danger, and in a manner the
impossibility thereof, was pressed unto the said
Earl, lie said again, that, without some such
great action, the peace of Christendom would
never be had ; which was so dangerous and
desperate a counsel, that one so near to the
crown of England should be poisoned in his
religion, and put into the power of a foreign
prince, enemy to our religion, and an unfriend
to our state, that the consequence thereof, both
for the present and future times, were infinitely
dangerous : And yer hereunto did his disaffec-
tion to our religion, the blindness in Lis judg-
ment, misled by sinist r respects, and the too
much regard he had to the house of Austria,
lead him.

X. " That, when the Prince had clearly
found himself and his father deluded in theri
Treaties, and thereupon resdved to return
from the court oi' Spain ; and yt, because it
behoved him to part fairly, he left the powers
of the drsposorios with the >aid carl of RristoL,
to be delivered upon the return of tl:e dis-
pensatiou from Rome (which the kiug oi Spain

1267] STATE TRIALS, 2 Ch. I. iG26.— Impeachment <tftl*J^ Buckingham, [12»
insisted upon, mid without which, as he pre- * or'Gondamar, ambassador for the king of Spain,

fended, he would not conclude the marriage) ;
the Pripce, foreseeing and i eating lest, «tfter the
desposorios, tot infanta, which should then be
his wife, might be put into a monastery, wrote
a letter back to the said earl from Segovia,
thereby commanding him not to make use of
the said powers, until he could givr him assur-
ance that a monastery might not rob him of his
wife; which letter the said earl received, and
with speed returned an answer thereunto into
England, pcr9utding against this direction,
yet promising obedience thereunto. Shortly
after which, the prince sent another letter
to the said earl into Spain, discharging him
of his former command ; but his late ma-
jesty, by the same messenger, sent him a
more express direction, not to dispatch the
despontoiits, until a lull conclusion were
had of the other Treaty of the Palatinate, with
this of the Marriage; for his- majesty said,
4 That be would not have one daughter to
laugh, and leave the other daughter weeping.'
In which dispatch, although there were some
mistaking, yet in ihe next following, the same
was corrected, and the earl of Bristol tied to
the same restriction; which himself confessed
in one of his dispatches afterwards, and pro-
mised to obey punctually the king's command
therein ; yet, netertbelets, contrary to his duty
and ul'egiuncc, in another letter sent imme-
diately after, he declared, ' That he had set a
day for the desponsories,' but without any
assurance, or so much as a treating of those
things which were commanded to him as res-
trictions; and that so short a day, that if extra-
ordinary diligence, with go:>d success in the
journey, had not concurred, the prince's hands
might have been bound up; and yet he neither
sure of a wife, nor any assurances given of the
temporal articles. All wiiich, in his high pre-
sumption, he adventured to do, being An express
breach of his instructions ; and, if the same
had not been prevented by his late majesty \
vigilancy, it might have turned to the infinite
dishonour and pn judicc of his majesty.

XI- " Lastly, That lie hath offended in a
high and contemptuous manner, in preferring
a scandalous Petition to this honouiahle house,
to the dishonour of his majesty of blessed me-
mory deceased, and of his sacred majesty that
now is, which are no way sufferable in a sub
ject towards his sovereign ; and m one Article

before his the saklf ambassador's la»t return
into Spain, in thsMrumer 1622, to carry hit
majesty (then Brace) into Spain, to the end
that he might jk informed, and instructed in
the Roman religion, and thereby have perverted
the prince, and subverted the true religion es-
tablished in England ; from which misery this
kingdom (next under God's mercy) hath, by
the "wise, religious, and constant carnage of his
majesty, been almost miraculously delivered,
considering the many bold and subtile attempts
of the said duke in that kind.

II. " That Mr. Porter was made acquainted
therewith, and sent into Spain ; and such mes-
sages at his return framed, ns might serve for a
ground to set on foot this conspiracy ; the
which was done accordingly, and thereby the
king and prince highly abused, and their con-
sents thereby first gotten to the said Journey;
that is to say, after the return of the said Mr.
Porter, which was about tbe end of Dec. or
the beginning of January, 1622 ; whereas the
said duke had plotted it many months before.

III. " That the said Duke, at his arriral ia
Spain, nourished the Spanish ministers, not
only in the belief of his own being popishly
affected ; but did (both by absenting himself
from all exercises of religion, constantly used
in the earl of Brill's b"U$e, and frequented
by all other Protectant English, and by coo-
forming himself, to please the Spaniards, is
divers rites of their religion, even *>o far as to
ku«el and adore their Sacrament) from time to
time give the Spaniards hope of 1 he prince's
conversion ; the which cop version he endea-
voured to procure by all means possible ; and
thereby caused the Spanish ministers to pro-
pound fur worse conditions for religion than
had been formerly by the earl of Bristol and
sir Walter Aston settled, and signed under thtir
majesties hands ; with a clause, in the king of
Spain's Answer, of the Pith of December
1 022, that they Ik Id the article agreed upou
sulticiciit, and such as oui*ht to induce the
pope to the granting of the dispensation.*

* Wilson after mentioning how highly Buck-
ingham had been esteemed, adds, " But when
Bristol came over, and (as afterwards he) did
discover, that the duke carried the prince pur-
posely into Spain to be the better instructed in
popery : that he gave hope to the Spanish mi*
of that Petition specially, w.erein he gives his j nisttrs of state of tbe prince's conversion, which
now majesty t e lie, in denying and offering to ! made them propound far worse conditions for
falsify that reiatmn which his inajeitv afiiruied, i religion than had been formerly agreed on:
and thereunto added many things of his own | that he professed himself a papist there, going

remembrance to both houses of parliament.

Robert Heath.*'

The Duke of Btckingham impeached by the

Earl of Bristol.

Articles of the Earl of Bristol, whereby he
chargeth the Duke of Buckingham ; bear-
ing date the 1st day of May 1626.

I. " That the Duke of Buckingham did se-
cretly combine and conspire with the Conde

to mass, kneeling to and adoring their Sacra-
ments ; which the pope being informed of, sent
the duke a Bull, to persuade and encnurtga
him to pervert the king and prince, with other
pernicious crimes laid to his charge in the next
king's reign, (as may appear in due time) ooat
can blame the people for mutable afiectioai:
for when falshood is so impudent as to hood-
wink such an assembly, with the veil that
truth herself is wont to put on, who caa ■!•*

1S89] STATE TRIALS, 2 Ch. I. 1620.— the Earl qf Bristol, and Lord Conway. [1290

infamy and dishonour to this nation, that a
person of the duke's great quality and employ-
ments, a privy counsellor, an ambassador, emi-
nent in his master's favour, and solely trusted
with the person of the prince, should leave he-
hind him in a foreign court so much scandal
as he did by his behaviour.

X. " That the said duke hath been, in great
part, the cause of the ruin anil misfortune of
the prince Palatine, and his estates, in aMnuch
as those affairs had relation unto this kingdom.

XI. " That the duke of Buckingham^ hath,
in his relations, to both houses of parliament,
wronged the earl of Bristol, in point of his
honour, by many sinister I'rpersions which he
hath laid upon him ; and in point of his liberty,
by many undue courses, through his power and
practices.

XII. " That the earl of Bristol did reveal
unto bis late majesty, both by word and letter,
in what sort the said duke hud disserved him,
and abused his trust ; and that the king, by
several ways, sent him word, that he should
rest assured he would hear the said earl; but
that he should leave it to him to take his own
time. And thereupon, few days before his
sickness, he sent the earl word, that he would
hear him against the said duke, as well as he
had heard the said duke against him ; which
the duke himself heard, and not long after
his blessed majesty sickened and died, having
been in the interim much vexed and j. ressed by
the said duke. Bristol.*'

Lord Conway impeached by the Earl of Bristol.

Articles of the Earl of Bristol concerning the
lord Conway, bearing date the 1st of May
1696.

I. " That the lord Conway is so great a ser-
vant of the duke of Buckingham's, that he hath
not stuck to send the earl of Bristol plain word,
that if businesses could not be accommodated
betwixt him and the duke, he must then adhere
and declare himself for the said duke, and
therefore unfit to be a judge in any thing that
conccrneth the duke or the earl.

II. " That the said lord Conway professeth
himself to be a secretary of the duke of Buck-
ingham's creation, and so acknowledged it
under his own hand ; and, although he be the
king's secretary of state, and a privy counsellor,
he usually beginneth his letters to the duke,
* Most gracious patron.'

III. " That, as a creature of the said duke's,
the said lord Conway hath been made the in-
strument of keeping the earl of Bristol from the
king's presence, and of imprisoning of him, by
warrants only under his own hand, for which he
cannot (as the earl conceiveth) produce any
sufficient warrant.

IV. " That, by the space of 12 months last
past, the said lord Conway hath been the cause
of the earl's restraint, only by misinforming his
majesty, and procuring a letter of restraint
upon undue ground* ; and when it was made
apparent unto him that the said earl was re-
stored to his liberty, freely to follow his own

IV. '* That the duke of Buckingham, having
several times, in the presence of the earl of
Bristol, moved and pressed his late majesty,
at the instance or the Conde of Gondomar, to
write a letter unto the pope ; and to that pur-
pose having once brought a letter ready drawn,
w herewith the earl of Bristol, by his majesty
being made acquaiuted, Hid so strongly oppose
the writing of any such letter, that, during the
abode of the said earl of Bristol in England, the
said duke could not obtain it; yet, not long
after the earl was gone, he procured such a let-
ter to be written from hi* late majesty unto the
pope, and to have him styled Sanctissime Fatrr.

V. " That the pope, being informed of the
duke of Buckingham's inclination and inten-
tion in point of religion, sent unto the said
duke a particular Bull, in parchment, for to
persuade and encourage him in the perversion
of his majesty, then prince.

VI. " i'hat the said duke's behaviour in Spain
was such, that he thereby so inceiued the king j
of Spain and his ministers, as they would ad- j
mit of no ret ouciliation, nor further dealing ,
with him ; whereupon, the said duke seeing
that the match would be now to his disadvan-
tage, he endeavoured to break it ; not for any I
service to the kingdom, nor dislike of the match ;
in itself, nor for that he found (as since he
hath pretended) that the Spaniards did not ,
reallv intend the said match, but out of his
particular ends and his indignation.

VII. " That, after that he intended to cross
the marriage, he put in practice divers undue
courses ; as namely, making use of the letters
of his majesty (then prince) to his own ends,
and not to what they were intended, as like-
wise concealing divers things of high import-
ance from his late majesty , and thereby over-
threw his majesty's purposes, and advanced
his own ends.

VIII. "That the said duke, as he had with
his skill and artifices formerly abused their ma-
jesties ; so, to the same end, he afterwards
abused both houses of parliament, by his sinister
relatiou of the carriage of affairs, as shall be
made appear almost in every particular that
he spake unto the said house*.

IX. " As for the scandal given by his per-
sonal behaviour, as also the employing of his
power with the king of Spain for the procuring
of favours and offices, which he bestowed upon
base and unworthy persons, for the recom pence
and hire of his lust : these things, as neither fit
for the earl of Bristol to speak, nor indeed fur
the boose to hear, he leaveth to your lordships
wisdoms how far you will be pleased to have
them examined ; it having been indeed a great

instant discover it ?" Upon which Hume ob-
serves, " Wilson says, that Buckingham lost
bis popularity after Bristol arrived, not because
that nobleman discovered the falsbopd * of his
narrative, but because he proved that Buck-
ingham, while in Spain, had professed himself a
.papist ; which is false, and which was never
said by BrittoL"

1991] STATE TRIALS, 2 Ch. I. IMC- Impeachment ef the D. qf Buckingham, [199!

affairs, by his late majesty of blessed memory,
he replied, That that liberty, given him by his
majesty, expired with the king's death.

V. '* That the earl of Bristol's mother, lying
sick, upon her death-bed, desired, for her coin-
fort, to see her son, and to give him her last
blessing ; whereupon the earl wrote to the said
lord Conway, to desire him to move the king
for his leave ; which he putting off from day to
day, told the person employed, that, by reason
of the duke's sickness, he could not find op-
portunity to get the duke's leave to move the
king ; and having spoken with the duke, he
made a negative nnswer in the king's name ;
wherewith the earl acquainting the king by
some of his bed-chamber, his majesty was in a
very great anger, swearing the secretary had
never moved him ; and that to deny the said earl
leave was a barbarous part; and thereupon
sent him presently free leave; which the secre-
tary hearing of, sent likewise afterwards a letter
of leave, but with divers clauses and limitations,
differing from the leave sent him from the
king's own mouth.

VI. " That having the businesses %$* the earl
of Bristol in his hands, and the earl being com-
manded by the king to address himself, in his
occasion?, unto his lordship, he would never
deliver any message from the said earl, without
first acquainting the said duke, and receiving
his directions ; and, in a noble manner of free-
ness, stuck not to send him word.

VII. " That the earl of Bristol having re-
ceived from the lord Conway tweuty Interroga-
tories, in his late majesty's name, drawn up by
a commission of the lords appointed to search
into the proceedings and employments of the
said earl ; m which search there was more than
two months spent, divers of the said Interroga-
tors in\i living fel my and treason; and hi*
majesty having been pleased lo assure the said
earl, both, by message and letter-, that, upon
satisfaction given to himself and the commis-
sioners by his answers, he would presently
put an end to the earl of Bristol's business;
the earl uf Bristol having so fully answered
as would admit of no reply, and that many of
the commissioners dcclaied themselves to be
fully sati-fifil ; the s;»id lord Conway being the
secretary in the commission (to whom it pro-
perly In-longed to call the lords to assemble),
perceiving that the earl of Bristol was like to
be cleared, never moved for any further meet-
ing ; n< it her have they ever been permitted to
meet until this dav, whereby the troubksof the
eari of BrNtol have been kept on foot till this
present, and the said earl's imprisonment hath
been enlarged twenty month*: and, by the
artifices :»f riic said duke of Buckingham and
the »aid lord Conway (as shall be made appear),
the said earl hath been insensibly involved and
stalked into the troubles he i* now in, which lie
doubteth not but your lordships will judge to
be a very considerable case.

VIII. " That for a colour of keeping the earl
from his late majesty's presence, it being pre-
tended after the answer to the SO Interrogate*

lies, that there were some few questions more to
be added, w hereunto when he should bate an-
swered, his majesty swore solemnly, that «i:h*
oat any delay, lie should be admitted to hit pre-
tence, and that witbiu £ or 3 days he should
have the said questions sent unto him ; the lord
Conway, notwithstanding he acknowledged
under his hand, that he had received hit ma-
jesty's directions for the sending of the said arti-
cles, and was often thereunto solicited on tbe
behalf of the said earl, would never send tfcs
said questions ; and at last answered, That I*
had no more to do with the earl's business.

IX. " That the earl of Bristol being set free
by hi3 late majesty to come to London, to follow
his own affairs as he pleased, and thereapoo
having his writ of parliament sent unto him,
without any letters of prohibition ; yet iheesri
of Bristol, out of his great desire to conform
all his actions to that which he should under-
stand would best please his majesty ^ent to kno*,
' Whether his coming or stay would be mott
agreeable unto his majesty?' Who was pleased
to autwer by a letter from my lord duke of
Buckingham, ' That lie took in very good
part the said earl's respect unto him : bat
wished him to make some excuse for the pre-
sent:' Tlie which accordingly he did, sad
moved, ' That he might have a letter under the
kings hand, to warrant his ubsence ;' but under
colour of this letter of leave, upon the eari of
Bristol's own motion and desire, the lord Con-
way sent a letter from his majesty absolute!?
forbidding his coming to parliament ; and there-
in likewise was inserted a clause, ' That the
carl should remain restrained as lie was in tat
time of his late majesty,' and so thereby a colour
of restraint, under his majesty's hand, *ti
gotten, which could never he procured in bis
late majesty's time: whereby theeail of Bristol
hath bsci) unduly restrained ever since, witkost
bcinv able to procure any redrew, or to n&fce
the lord Conway witling to understand hi* cast.

m

although he sent him all the pupers, uherebrbe
misht clearly bee, tint the earl was not uoder
restraint in Jus late majesty's tune; but never
otlu r answer could he procured from him, bat,
' That he judged the said earl to be under re-
straint, and that his liberty was expired bytLr
late king's death, as is aforesaid.'

X. " That the lord Conway, knowing that
the Match for the marrying of the kin? of
Bohemia's eldest son with the emperor's daugh-
ter, and being; bred in the emperor's court, ■«
allowed and propounded by his late majfftf :
and that his imi jest r hvhis letters to his too-ia*
law, declnreth, ' That he thinketh it the fanr*t
and clearest way for the accommodation of btf
affair*, and that he will take sufficient care ot
his breeding in true religion :' And notwitb-
standing that the said earl received a coj*oi
the quid letter by the said late kind's order,
with other papers, setting down all that bed
been done in the said business, and Itismajetft'i
assent thereunto, from the lord Conway bin-
self; yet hath he suffered it to be charges' si
a crime against the tarl of Bristol, both si <*

1293] STATE TRIALS, 2 Ch. I. 1026.— the Earl of Bristol,, and Lord Cenwaj,. [129#

20th Interrogatory and in his majesty's l«st letter, f _„ „ . . __ . „

that he should consent to the breeding of the The Earl of Bnsl01 s defence,

youug prince in the emperor's court. And, Mr. Attorney having rend the Charge, nnd
further in the interrogatory, he alledged it as j the earl of Bristol permitted to speak for him-
an aggravation against the said earl, That the J self; lie first craved pardon of their loidbhips
breeding of die said prince in the emperor's for hi* earnest speeches here the other day;
court, referred to the perversion of his religion, i confessing he spake in passion ; saving, " That
when he knew that his said breeding was never i an unexpected Accusation of high treason would
thought nor spo\en of by the king, nor. any ! warm an honest heart ; and I like my heart

other, but with that express clause and condi
tiou, ' That he should be bred in his own reli-
gion, and have such tutors and servants a* his
father should appoint.

XI. " That the lord Conway liath been the
cause of nil the earl of Bristol's trouble**, by his
dubious and iutrappinc dispatches, and infer-
ring, That the said earl hath failed in his direc-
tions, when it shall tie made appear, that his
dispatches contained no such directions »s lie
bath alledged were given. Bristol."

After the reading of these very different Accu-
sations, the house not being satisfied to commit
the Earl to the Tower, let him remain where he
was before, with the gentleman usher; and
further ordered, " That the king's Charge against
the Earl of Bristol be first heard, and then the
Churge of the said Earl against the Duke: yet
so that lite Earl's testimony against the Duke be
cot prevented, prejudiced, nor impeached,"

May 2. The Lord-Keeper delivered a Mes-
sage from the King to the Lords: vis.

" That his majesty uketh notice of the
Articles exhibited against the duke of Bucks
by the earl of Bristol ; and he observed), That
many of them are such, as himself is able to

say more of his own knowledge than any man, questioned with my life ; bur. they being to de-

fur the duke's sincere carriage in them : that
one of them touching the Narrative made in
parliament in the °.l*t of king James, trencheth
as far upon himself, as the duke : for t licit his
majesty went as far as the duka in that declara-
tion : and that ull of diein have been closed in
the Earl's own breast, now for these two years,
contrary to his duty, if he had known any crime
of that nature by the duke ; and now he vents
it by way of recrimination against the duke,
it horn he kuows to be a principal witness to
prove his majesty's Charge. — And therefore,
That bis majesty gave them thanks, that they
gave no way to the earl of Bristol's unreasona-
ble motion, of putting the duke under the same
restraint that they had put the earl ; thereby
eschewing what the carl anneth at, to alter their
dutiful proceedings toward his majesty so often
in this parliament expressed. That thereby
they had made his majesty confident, that as
they have, so they will put a difference between
his majesty's Charge against one that appeareth
S» a delinquent, and the recrimination of the
earl of Bristol against his majesty's witness ;
and not to equal them by a proceeding pari
passu ; nor to match the imprisonment of the
one with the other, as the earl of Bristol de-
sired ; the ground being so different and un-
equal"

never the worse for it ; but he would hereafter
amend that fault/'

Then he rendered their lordships nil most
humble thanks for this manner of proceeding
against him, and desired to know from Mr.
Attorney, u Whether this be his whole Charge
or no ?*'

Mr. Attorney answered, i( That he hath com-
mandment to open no more against him ; perad-
venture, in the opening of the Charge, upon
some incidents of his Answer, some other Par-
ticulars may arise, and be urged ; but no new
matter should."

Then the Earl desired to know of i\fr. Attor-
ney the relator, as he might understand who is
his accuser. And Mr. Attorney answered,
" That the king himself, out of his own mouth,
had given him directions for his ow n relation
against the Earl, and corrected many things
which were added."

- Unto which the Earl replied, and said \o this
effect: viz.

" I will not contest with the king ; neither
doth it beseem me so to do; neither esteem I
my life or my fortunes so much as to save diem
by contesting wiih my sovereign ; and there-
fore! would make no reply nor answer, were it
not that my honour and religion were jointly

scend to my posterity, for tl::i. :nke I am an
humble suitor to his majesty, that he would not
take indignation at my own just defence. Yet
I will be ready to make any humble submission
to his majesty ; and I heartily desire that some
means may be made that I may make it per-
sonally unto himself; wherein I will submit
myself most willingly to any art of humiliation
and submission (not wronging my innocency,)
that ever subject did towards his sovereign ;
and I also desire that his majesty would be
pleased to set himself here on his throne of
justice, and declare <hatt out of his royal jus-
tice, he leaves ibe duke of Buckingham and me
upon equal terms ; and that neither of their
causes shall be advanced before the other.

" These my humble Petitions I beseech your
lordships to present unto his majesty, on my
behalf; and uithal what a disservice it will be
unto his majesty hereafter, in embassages, if my
accuser shall he my judge, his own witness, and
have my confiscation.

" As touching the Charge itself, I have once
answered it all (except that of my Petition) :
and I doubt not hut to clear myself of every
particular thereof. I expected not to have
heard of these again. J expected a remon-
strance of some practice with Spain against the
state ; or to be charged with the receipt of 10

1295] STATE TRIALS, 2 Ca. I. 1026.— Impeachment qfthe D. qf Buckingham, [1296

or 20,000/. fur the persuading and procuring the
delivery up of some town that tbe crown was
in possession of, as might be the Brill, or Flash-
ing, «>r i lie like ; or for being the means of the
kind's ships to serve a foreign nation against
those of our own religion; or tor the repealing
uf his majesty's highest secret*, which none but
two or three did kno v of; or for treating of
(he sireatesi affairs, a» it were by mine own au-
thority, without formal instructions in the
p. mi ; or, as the law calls it, to have commit-
ted some o%ert act of disloyalty ; and not to be
charged, af*er seven embassages, with discounts
*nd inferences.

** 1 desire your lordships that I may have a
copy of my Charge in anting, and time for my
Answer, ai.d counsel assigned me.

•' T» ere is a great d.tftrence between the
duke of Buckingham and me. The duke is ac-
cused of treason, and yet at large, and iu the
king's favo r; and I, being accused but of that
which I Jiad long since answered, tun a prisoner:
and therefore I beseech your lordships, that we
may t.e put into equal c<>nd tion ; and foras-
much as I have exhibited articles against the
lord Cu.iway, 1 humbly desire that his lordship
may not meddle in this particular business, nor
use the king's name against inc ex officio, as se-
cretary of state ; and that your lordships would
be suitors unto his majesty, on my behalf, that
all the paiticular dispatches of my own embas-
sages, <md sir Walter Ashton's, might he brought
hither ; and 1 to make u>e of them for my de-
fence, as of my evidences.

" And sith his late majesty hath heretofore,
in the presence of many lords here present, af-
firmed that I had neither committed treason nor
felony in my late embassages, and permitted
iliverj of hi* servants to come unto me ; and
his majesty that now is then said that he thought
me an honest man, and hath lately said that my
faults were but criminal, in the presence of di-
vers of your lordships and others; and the lord
Conway did lately offer me to come to uiy trial,
but he thought the coronation pardon would
free me ; and yet now my offences are made
high treason. And for t bat, when I saw I could
get no redress from his majesty by means of the
duke of Buckingham, I did address my Peti-
tion unto this house concerning him, the duke's
cunning hath made the king a party against tue;
and, tor my accusation of him, I om made a
traitor, and he a judge to tote against me. I
do therefore humbly he»eech your loidships to
distinguish of this, and (although I have been
too tedious already) to sutler me to pioceed,
and present my case unto you."

Which being grant* d, he said:

" At the prince's coming out of Spain, I was
in favour v\ uh his highness; and with the late
kin*; also, at his return into England. Hut I
having acquainted the prince (at his being in
Spain) with my letters which I wrote unto «h».'
•late kin*, of the duke's unfaithful dealings
(which letters his highness forbad me to *end» ;
and the duke at his return having gotten a sight
•f those letters (Mm ill* lachrym* /) bela-

boured with tbe duke of Richmond and tbe
marquis Hamilton for my commitment to the
Tower, so soon as I should return into England :
and he moved tbe marquis to deal wi-.h rite lord
chamberlain for my commitment, ibu.h but
for a time, until things were settled, ie>t oj
coming to tbe king should disturb all. 1 de-re
the lord chamberlain, who is here present, to
deliver his knowledge herein.

" Then the duke accused me in the parlia-
ment of the prince's dangerous journey into
Spain, which I will prove to have been plotted
by the duke himself aforehand, with Coode rft
Gondomar, the Spanish ambassador; and I *:ii
also make it appear unto your lord»hip% thai
there are very many contrarieties in the dule j
relation to both houses. I, hearing of tbis nod
of the many dangers threatened u,e, oneieu to
come home presently; but my U tiers were an-
swered, that 1 might s;ay and come at leisure.
Yet I came with as much speed as comenieutlv
I could, considering my long journey, and that
I brought my wife and family with me ; and
being at Calais, with al>ove 40,000/. wunh of
the king's jewels, I could not pr«»c .re shipping
from hence to pass me over ; but was enforced
to venture in a boat with six oars : I miliar,
haste to come before the parliament thould end,
and the duke using all the means lie could to
put off my coming until the parliament «sj
ended.

" At my coming to land, a single letter wis
sent me, of some six lines, Irom the lord Con-
way, of his majesty's pleasure not to come to
the court, but to remain in my own lodging.
Being there, 1 petitioned the king that I iuii;lit
answer in the parliament; and his majesty snid,
that the parliament was so incensed ng^uvamr,
that it was not safe for me to be brought tfat-
ther ; but, within a few days, I should have as
end of mv troubles.

" At last, I had Articles sent me by commis-
sioners appointed to enquire of my proceedings;
which Articles contained the substance ui* tb»
.Charge; and I fully answered them in writ log;
and the late king read them all, and w.ts so
well satisfied therewith that he sent me word
that be would see me. Whereupon the dukr
of Buckingham desired hismujc 3ty that 1 naight
first answer some four other questio. s; wLkh
being delayed, and I petitioning the king w
them to be sent me, his majesty cave order to
have them presently sent; yet they came not
Divers delays *vere sjught ; and at last the lurd
Con way wrote mea letter that they werer*ad»;
but be thought it better 1 did accommodated
business.

" Though I often solicited the lord Conirff,
yet l<is lordsbip, perceminr that 1 should k
cl< ared by the commissioner?, would ne*er send
those questions, nor suffer the commissioners
Ot.re to meet; and at last answered that he bad
no more to do with me.

" Then t! c late king sent me a Message, w
write but a fair !etter unto Bt.cks for a reconci-
liation ; and that 1 shonld leave the rest on'o
him. The duke hereupon seat one Mr. OrU

1297] STATE TRIALS, 2 Ch. L H326— d<r Earl qf Bristol and Lord Conway. [1298

unto me, what fair propositions I should make; :
only to retire into the country, and not come
to the court; but permit his grace to dispose of
die vice-chamberlain's place. And I shewing
Mr. (Jlerke, by way of private conference, what
papei » I hud to produce against the duke, his
grace tiiLii required a retractation ; which 1 de-
nied ; and so all reconcilement brake off. After-
wards the duke sent me a certain proposition in
a letter, which I should acknowledge; and the
preface of that proposition saith, ' It is not
' granted that the earl of Bristol hath, by his
1 Answer, satisfied either the king, the prince,
1 or me, of his inuoceucy* (a strauge conjunc-
tion of a subject!); and the duke would not be
satisfied with less thau a direct acknowledgment.

" Upon this, I petitioned the late king, that
I might be at liberty to follow my affairs free-
ly ; which bis majesty condescended unto, and
signified his pleasure by the duke, that he was
satisfied ; and that therefore I had my freedom.
But, when I had an intent to come to my lodg-
ing at Whitehall, and made the duke acquaint-
ed therewith, he seemed much displeased
thereat ; and moved his majesty that I might
first make an acknowledgment of my fault,
which his majesty refused to compel me unto ;
saying, lie might then be thought a tyrant, to
force a man to acknowledge that which he was
Dot guilty of ; and his majesty sent me word,
that I should make no acknowledgment unless
I would freely confess myself guilty. Yet thg
duke cai.sed a message to be sent me, that his
innjcsiy expected that I should make the said
acknowledgment, and confess myself guilty.
And thus it stood with me when the late kiog,
my blessed master, sickened and died.

" When his majesty that now is came to the
crown, he was pleased to send me a gracious
message, upon the occasion of a great sickness
I had ; and my writ of parliament was freely
tent me ; bur, out of respect, I desired to
know what would best please the king, my
cominp, or my stay fiom the parliament. And
the duke of Buckingham did write unto me,
that his majesty took that respect very well at
roy hands, but would have me excuse my com-
ing ; for which I craved a letter of licence from
the parliament; instead whereof I received
from the lord Conway a letter of prohibition,
and restraint and confinement, under the king's
own haud, whereas before I was restrained
only by the lord Conway.

" After this, I continued quiet almost a year
in the country, until the coronation ; and then
I wrote a most humble letter unto his majesty,
and to the duke of Buckingham ; but received
a letter from his majesty, written in a great
Roman hand, inclosed in one from the duke,
§o differing from those gracious messages his
majesty had formerly sent me, and several pro-
fessions hi* majesty had made to my wife and
others, that i knew not what judgment to make
of the said letters ; and divers copies of them
were divulged abroad.

" Then, my writ of parliament being denied,
I several times caused the Lord Keeper to be

VOL. II.

moved for it ; but could procure no redress.
And when I petitioned the house for my writ,
the duke thereupon took occasion, to my great
disgrace, to read the above-specified letter in
the open house ; and a letter of prohibition
was sent me, with my writ, to stay me from the
parliament. Upon this I petitioned the house
for redress agaiust the duke of Buckingham's
wrongs onto me, and accused him of divers
crimes ; and, since the house was possessed of
this my petition, I have been charged with
treason ; having been offered from his majesty
but few days before to rest in security, and not
to be questioned ; but I, thinking it fit for the
clearing of mine honour, to have recourse unto
this house, do find myself a restrained man,
and the duke at liberty, sitting as one of my
judges ; which I hope your lordships will spee-
dily redress. And I humbly desire your lord*
ships to take my cause into your lordships con-
sideration, having put myself wholly into your
hands/'

This being spoken by the Earl of Bristol, he
was withdrawn. — Then the Lord Chamberlain
being required by the house to deliver hia
knowledge of that which the earl had vouched
of him, he said, " The marquis Hamilton told
me, in a speech which he the said marquis had
with the duke of Buckingham, that the duke
told him, that liis niceness, the duke of Rich*
mond's and mine, in not giving way to the earl
of Bristol's commitment to the Tower, would
prejudice the cause ; for if he came to the
Ling, he would put new hopes into his majesty,
whereby the breach of Treaties with Spain,
touching the Marriage and the Palatinate,
would be hindered."

The house having debated and agreed, . how
far to allow of the Earl's requests, he was
brought to the bar again, and the Lord Keeper
signified unto him, That their lordships require
him the said earl to put in writing the short
Heads of those Petitions, which he desires tlus
house to present unto the king on his behalf
and of what else he will desire their lordships
to be mediators for him to his majesty ; Which
the earl promised to do on Monday next. The
Lord Keeper farther told him, " That the
house had granted him a copy of the king?
Charge against him, and that he should have
counsel allowed him to plead his cause. And
that he is to let their lordships know at what
time he shall be ready to make his Answer."
The Earl desired to have time till this day s en-
night, for that many of his dispatches are in the
country, which he would send for up in all speed.

Mr. Attorney signified to their lordships (be*
iog demanded from what time he would charge
the said Earl) that he had directions to charge
him no further thau with the dispatches of 1621,
and downwards ; whereupon the Earl besought
their lordships, that on Monday next he might
signify when he may be ready to make his An*
swer, wtucb being granted by the house, he
rendered their lordships most humble an£
hearty thanks for their honourable proceedings;
and so he was withdrawn.
4 • *

1599] STATE TRIALS, 2 Ch. I. 1026.— Impeachnent qfthcD.qf Buckingham, [1900

May 8. The Lord Keeper delivered a Mes-
sage from ibe king to this effect, viz. *' Where-
at the earl of Bristol hath made request unto
the house for counsel to be allowed to plead
his Cause ; his majesty understands that the
not using of counsel tor a defend vnt, in cases
of Treason and Felony, is an antient and funda-
mental kiw of this kingdom : and therefore his
majesiy desires, That forasmuch as he hath
committed this Cause to the honour and jus-
tice of this house, that your lordships would
proceed with all caution, that this antient and
fundamental law may receive no prejudice or
blemish.

The Duk« of Buckingham's Speech against the

Karl of Bristol.

The duke of Buckingham moved the house,
That the Lord Chamberlain mitiht again de-
clare his knowledge of that which the earl of
Bristol had vouched him for. Whereupou the
Lord Chamberlain, by command of the house,
did again declare his knowledge therein, to the
ftame effect be had on Saturday last ; and the
tiuke presently spake as followeth :

" My Lords ; I can do no less on the behalf
of this noble lord, of whom I trill not leave it
uncertain in your lordships opinions, that he
bath alledged any thing of a friend that is dead,
that he might not very well say ; nor suffer my
dead friend, who cannot answer for himself, to
be thought that he had in the least kind broken
the trust I reposed in him ; but to acknowledge,
on the behalf of them both, that I have often
laid unto him and others, (not under the seal
of secrecy) That if the earl of Bristol have ac-
cess unto his majesty with new hopes, he would
go near to alter the resolution taken by advice
uf both houses. And I added thus much far-
ther, (not out of any malice unto his person)
That if the earl of Bristol bad been my brother,
considering his carriage in this business, 1
should have thought the Tower the fittest lodg-
ing for htm."

The Earl of Bristol's Petition that the Duke
and he may be put upon equal terms.

Then a Petition of the Earl of Bristol was
tead, in hue verba ; viz.

" To the right honourable the Lords of the
Higher House of Parliament.
" The humble Petition of John Eurl of
Bristol, Humbly sheweth unto your lordships,
That whereas it appearcth by the title of the
Charge exhibited a^ain.st the enrl of Briitol, in
this honourable house, that the earl of Bristol
is to answer before his majesty and the peers ;
and that his majesty is judge, and by Mr. At-
torney's confession, this Charge is by his ma-
jesty's relation, and so he staiideth by his ma-
jesty accused : And that several points of the
said Charge are ^founded only upon private
conferences with hs majesty, so that his ma-
jesty, by his testimony, becorneth a witness:
And in case the said earl should be convict,
his confiscation coineih to the cro*u. For
this regard and divers others, he humbly be-

seecheth your lordships to take it. to consider-
ation of what consequence such a precedent
may be ; and therein most humbly to move his
majesty for the declining, at leasr, of his ma-
jesty's accusation and testimony, in such sort
as you in your high wisdoms shall think fit ;
whercunto the said earl doth most willingly
submit himself. And forasmuch as the said
earl is so unhappy, as he understandeth, to
have fallen into his majesty's high displeasure,
for which he is most heartily sorry ; and the
duke of Buckingham against whom he con-
tested!, standeth so eminent in bis majesty's
favour, whereat the earl presume th not in the
least measure to repine; but holdeth most
just, that his majesty should, according to his
affectionate and good pleasure of his own rojal
hcait, favour, prefer, or make difference of per-
sons, in all points of grace and favour, and me-
diation. Yet in a case of justice, wherein two
peers of the realm ; two that have been prnr-
counsellors, and ambassadors employed m toe
same affairs, and thereupon do now contest in
point of honour and their loyalty, he mat
humbly beseechcih your lordships to be inter-
cessors unto his majesty, that their causes any,
by his majesty be equally refen-ed to the jus-
tice of this honourable house, and their person
remain in equal condition. Further, he hum-
bly beseecheth your lordships, so far to faToaT
him as to present unto his majesty the true
Sorrow and grief of his heart, for having ever
offended his majesiy, and to make offer unto hit
majesty on the said earl's behalf, of all the acti
of humiliation and submission (not tending to
the wronging of his iunocency) that ever sub-
ject made unto his sovereign ; and tliat your lord-
ships u ould be earnest mediators herein, fir luo,
to his majesty. That your lordships would be
pleased to move his majesty to give reave thai
all the dispatches concerning the Negotiations
of the years 1621, 2, and 3, may b« brought
into this high court, and that he may make use
of them as his evidence. That his majesty
may be moved that my lord Conway may m*
use his mnjr sty's name, ex officio, in any thing
that may concern the carl of Biistolor tut
Cause. And he shall pray, &c. Bristol."
Unto this Petition was also annexe*! as fol-
lows, viz. " The Names of such Counsel aji the
earl of Bristol humbly desire th may be assigned
to him; Mr. Serj. Hfcwey, Mr. Serj. Bramswy
Mr. Serj. Crawley, Mr. Anthony Lowe.— The
earl of1 Bristol, concerning the time of putting
in his Answer, saith, That though the Chanje
looketh no further back than 1621, yet the in-
ferences thereof are drawn from his riispntcbej
of far anticntcr date, so that he is constrained
to send post for some of them to his house m
the country, which he hath done; and there-
fore dcsiri-th the space of 8 d ays, "mssu ring row
lordships, that if in shorter time (as be nouiflg
dotiiiteth) he shall be able to finish if, he«tf
presently advertise your lordships thereof, lfc
said earl further prayeth, That being in C0»
tody of Mr. Maxwell, gentleman usberof th*
hutuc, and there being many tbjngt that b db

1501] STATE TRIALS, 2 Ch. 1.1 626.— the Earl <tf Bristol, and Lord Conway. [130*

interim may happen wherein he may need
your lordships further order, that your lordships
would be pleased now to order, that Mr. Mux-
well may present unto your lordships such fur-
ther petition* or requests, on the behulf of the
said earl, as he shall have occasion to prefer
unto your loid^hips. Buistoi.."

Hereupon it was ordered, That Mr. Maxwell
may present unto the house any Petition
which the Karl shall have occasion to make
hereafter. Then the house was put into a
Committee, that their lordships inight the more
freely debate the contents of tins Petition ;
and the petitions were read in parts, and each
part considered of by itself; but before any
conclusion was had thereof, a Message cai.ie
from the commons, whereupon their lordships
proceeded no further herein at this time, and
the house was resumed.

Message from the commons, by Mr. Vice-
Chamberlain and others, " That the Commons
desire a Conference between a Committee of
both houses, if it shall so please their lordships,
and at such time after this morning as their
lordships shall appoint/1 Answer. " A com-
mittee of this whole house will meet a commit-
tee of the whole house of commons at two this
afternoon, in the Painted Cliamber, to receive
what shall be propounded to their lordships/'
The messengers being departed, the house ap-
pointed these lords to report what the com-
mons should propound at this Committee, viz.
The Lord President ; the Lord Chamberlain ;
the earls of Dorset, Bridgwater, Devonshire,
Clare ; lord vise. Say and Seale ; lord bishop
of Norwich. And it was agreed, that these
eight lords should have the first and most con-
venient places at this committee. — We slnll
now go back a little, in order to take a view of
the duke of Buckingham's affair in the house
of commons.

April 22. The commons had perfected their
Charge against the Duke, and sent him notice
of it by sir John Hippesley and Mr. Gilford,
two of their members. The heads of it, from
the clerk's books, they were allowed to deliver
to him, verbatim, but to leave no notes of them
with him. His Answer was also required in
two days time, before tliem, if lie pleased.

April 21. The gentlemen sent to the Duke
made this report to the house, " That they had
acquainted the Duke with the Message, who
told them he could not give Answer to it, till he
bod informed the lords about it." That this
forenoon having asked leave of the lords, they
would by no menus consent to it. However,
be dictated some Answer to them, which being
put into writing was read to the house, as fol-
lows:

*' That he should, with great care, make
fell due acknowledgment of your respect and
favours in giving liim this notice; which though
it do invite him to render unto you such a
satisfaction that, he hopes, may acquit and
restqre him to your good opinions, and might
prevent your proceedings, which otherwise by
t parliamentary course are like to follow ; yet

according to his duty, he moved the lords of
the Upper House, upon your notice given him,
who would by no mean**, as things now stand,
give him leave to answer, in regard be is not
ipiorant you are presently to enter into consi-
deration of his majesty's Juessige; mid that by
a delay therein your own purposes will be in
some sort disappointed, and the affairs of
Christendom mueli prejudiced; but for that,
upon a resolution, you have deferred and
respited that service until those things depend-
ing "gainst aim be first determined, he, out of
fear that his necessary defence would spin out
a great deal of time, which is more precious, h
the williuger to obey their lordships; that so
he might hasten, without obstacle or inten up-
turn given unto him, to keep day with his ma-
jesty; and this he doth, as he concehes, to his
own infinite prejudice, knowing how grievous
it is to be transmitted as a grievance by th?
voice of this house; but he doth profess he
will rattier hazard the safety of bis fortune, re-
putation and himself, than to be the least occa-
sion of any thing that may work disaffection or
misunderstanding between the king and bis
people; and it is bis protestation, that what-
soever interpretation iz> made of his actions,
his endeavours shall be, as long as he hath any
favour with his gracious master, to take oppor-
tunity of doing good offices to this house, and
of rendering all that he can be able for the
safety of the state, and the general good of the
common-wealth. And this he saith you may
the easier believe, bf cause his majesty can wit-
ness that he hazarded iu his father's time the
loss of the best affection of the best of mas-
ters to obtain for them their desire. In this
zeal he was desirous to have appeared unto you
ever since the beginning of this parliament, and
in this zeal he doth now present himself unto
you. But to return to the main point, he, lest
we should be mistaken, gave us occasion, iu
plain woids, to remember you, that it is not he
that doth refuse to answer, but the lords com-
manded him not to answer; which he the
chearfullier obeyed, in respect of his fidelity
to prefer the universal weal before his own par-
ticular; and, in the mean time, he desireth
the charitable opinion of this noble house,
until he be convinced that he shall appear not
worthy of it, which his own inn'ocency maketh
him confident that he shall not."

A further Charge against the Duke of Buck-
ingham.

April 27. A new matter was started again it
the duke of Buckingham, concerning a Flaister
and a Posset given to the late king James, in
his last sickness. Mr. G Ian vile made the Re*
port of it from the committee of Examinations
into the Duke's conduct: and said, That the
sworn physicians had testified before them, that
they had agreed upon certain directions in the
king's sickness, particularly that he should hare
neither meat nor drink for some hours before
his fit. That upon this and other matters, the
committee were of opinion this should he ~~

1303J STATE TRIAL?, 2Ch.I. \&2Q.—ImpcachmentoftkcD.

[1304

Hexed to the duke's Charge, as a transcendent
presumption of dangerous consequence. On
this a debate arose, and the hon>e divided on
the question, Whether the grand committee of
the whole house should now sit, to tike con-
sideration of this business? And it was carried
in the affirmative, by 191 against 150.

April 28. Mr. Wandesford reported from
the grand committee, concerning the duke of
Buckingham, a general agreement amongst all
the ki.»g*s sworn physicians, that nothing should
be administered to the king without the joint
consent of them all, Ate. Upon question, it
'was resolved, 1. " That a plaiater was applied,
and a drink given, to the late Ling, in the time
of his last sickness, without the advice of his
sworn physicians, and out made by his sworn
apothecaries or surgeons, contrary to the general
directions of the physicians, and after being
particularly disliked by them. 2. That the
application of the plaister and giving of the
dnnk to the late king, as agreed upon in the
last question, was an net of transcendent pre-
sumption, and of dangerous consequence. 3.
That this drink was given to the late king by
the duke, and the plaister applied to him by {
the duke's direction, i. That this shall be
anuexed to the rest of the duke's cliarge."

April ?9th. The king seat a message to the
house, by the chancellor of the exchequer,
intimating, ' That he having given nay to their
enquiries about the duke of Buckingham ; and
hearing there is new matter intended to be
brought in ; in respect of the season of the year,
and the attain of state, desireth the house will
avoid loss of time therein : and lcaveth them
to their imh way, either by presenting the
complaint to himself or to the lords.' Tnanks
was ordered to be returned by the said chan-
cellor and others, to the Ling for his gracious

The commons having now entirely finished all
their Articles against the Duke, and agreed
upon the members who should defend each of
them; on the 8th of May they sent a Message
to the lords, desiring a Conference with them
coin*crmn£ the Impeachment and Accusation of
a great peer of that house, with as much con-
silient speed a* their occasions would permit.
Accordingly, at the time appointed, the com-
mons went up with their impeachment, which
was to be managed by eight of their members,
and sixteen others as assistants to them. The
nanus of the eight chief managers were, sir
l>udlev Dijig-S Mr- Herbert, Mr. Selden, Mr.
Glanvile, Mr. Whitby, Mr. I'ym, Mr. Wandes-
ford, and sir John Elliot. — The next day, upon
n question, That the house do move the lords,
that the duke of Buckingham may be com-
mitted to prison, the house divided, Ayes 29.5 ;
Noes 106, The Commons Journals inform us,
That the Noes would have yielded ; but the
Yeas would not accept it, desiring to he raim-
twred *, A committee of fO members was also

* Whether a division to ascertain the num-
tva for and against a question ia the house of

nominated to consider of the manner how tie
commitment should be prayed.

May 0- The duLe of Buckingham moved the
lord*, " That forasmuch as the Lr:*;i^.s5, wlcch
the committee of the commons had began the
day before to declare unto a committee of this
house, was not then finished, that their lord-
ship* would give them a speedy meeting again
this morning concerning the same."* This
motion was agreed to, ana a Message was sent
to the commons accordingly. To which this
Answer was returned : " That at the meetin»
of both houses vesterdav, the committee of the
commons did impeach a great lord of diren
crimes and misdemeanors, which could not
then be finished for want of time; and the
gentleman who was appointed to proceed in
the next part of the charge, is so visited with
sickness, that the commons are enforced to
make use of one of his assistants. Therefore
they detired that their lordships w ould appoint
any time they pleased, lor Uie next meeting,
after this morning." Answer, " The lords du
appoint 3 o'clock the next morninp, in the
former place, for the purpose : and then tither
the aforesaid gentleman may be recovered, or
his assistant better provided to perform the
same/'

Questions proposed to the Judge** relating to
the Earl of Bristol.

The same day the lord keeper pat the boose
in miud of the earl of Bristol s last Petition to
them, appointed to be heard n3 to day? wheo,
the Judges being sent for, the follow ing Ques-
tions weie agreed upon to be put to them and
left to their considerations. 1. " Whether, in
case of treason or felony, the king** testimony
was to be admitted or not ? Q. Whether »ords
spoken to the prince, who is after king, makes
any alteration in this case ?" The Judges were
ordered to deliver their opinions herein on the
13th hist.

The King takes Offence at the Managers beha-
viour, and commits two of them to the
Tower.

May 1 1. Early in the morning, the king came
to the house of lords, and, being seated on tfce
throne, made the following speech to them :

" My lords; The cause and only came. of
my coming to you this day, is to express die
sense I have of* all your honours; for he that
toucheth any of you, toucheth me in a rerr
great measure. I have thought fit to take
order for punishing some insolent speeches
spoken to you yesterday, by way of digression.
I have been too remiss heretofore in punishing
such speeches as concern myself ; not that I
was greedy of their monies, but for that Buck-
ineham, through his importunity, would not
suffer me to take notice of them, lest be tafbt
be thought to have set me on, and that be aw*
come the forwarder to his trial to approve m

commons can be insisted on, tee Ihxttffi
Precedents, yoJ. 2i p. 185.

1305] STATE TRIALS, QCr. I. 1 526.— <*e Earl of Brutal, and lord Cartway. [1300

innocency. For as touclung the
ngKinst liiin, I myself can be a witmtss to clear
bun in even "ne of them. I speak not this to
take any tbmg out of jour bonds; but to shew
the reason why I have not hitherto punished
those insolent speeches against myself. And
now I hope ye will ha as tender of my honour,
when time shall serve, as I have been sensible
of yours.''

After which his majesty departed. The king's
coming to the house and making this speech,
was occasioned by the behaviour of two of the
mnuneers lor the commons against the duke ;
who in their Speeches had let mil some ex-
pression?, as was reported, that were highly re-
sented by his id •jetty ; and he had accordingly
committed thorn both to the Tower. The con-
sequence of which wJI fall better in another
place.

The Commons desire the Duke of Buckingham
may be committed to safe Custody.

The same day a Message came from the
commons, brought by sir Nuth. Bicb and
others, which nasto this purport:

" The knights, citizens, nnd burgesses of the
commons house of parliament, taking into their
serio us consideration the main mischicls and in-
conveniences which thin renowned kingdom doth
now suiter, threatening apparent danger to the
king and commonwealth, nave by search and
disquisition into the causes thereof, found that
they do principally flow from the exorbitant

Ewer and abusive carriage of the duke of
Dckiughuin ; » hereof be hath in this parlia-
ment been impeached before their lordships by
the commons, he.ides nn accusation of a peer
in their own house, who bath charged him (as
ihey are informed) of high treason: They there-
fore with one voice moke an entire declaration,
That they hold it a thing of (Itingertnui conse-
quence b'uihfor the present and future times,
that a man of so great eminence, power, and
authority, being impeached and accused of such
liigh crimes and offences, should yet enjoy his
liberty, hold in great n part of the strength of
the kingdom in bis hands, sit as a peer in par-
liament, and be acquainted with the counsels
thereof, whereby inevitable mischief may sud-
denly full upon the kingdom. Wherefore tltcy
huve thought it their duty to recommend tin"
their unanimous desire to their lordships, a
agreeable to law and reason, That they would
be pleased forthwith to commit the poison of
the said duke to safe custody."

The Duke of Buckingham's Defence.
The reply the lords made to the messengers
was, Thut they would take their Message into
consideration, and return an Answer to it in
convenient time. And, alter the commons were
withdrawn, the duke of Buckingham got up and
' spake as follows !

" My Lords; If I bold my peace, it will ar-

Ke guilt, and if I should speak, it may argue
IdnesS; being so foully accused. Your lord
•hips see what complaints are made against me,
fey the housa of commons; how well I stood in

their opinions, not long since, your lordships
Know ; and, what I have done since to lose
their good opinion, I protest, I know not. — I
cannot so distrust my own innocency nnd heart,
which abhors guilt, as to offer to decline any
course or court of justice ; and, hud they not
brought my cause to your lordships, I so much
trust in the justice and equity of this house, that
it should have been my work to have done it.
So as in this, only, they hare douc me a favour,
to deliver me out of their hands into your lord-
ships.— And now, my lords, whilst I protest
-nine innocency, I do not justify myself from
ill errors, as ill was an angel amongst men ; I
:now, very well, that offices and places of high
trust and eminence, may bo discharged by men
whose abilities are better than the best of mine,
and still the management of ihem may lay open
to exceptions. — The king nnd the state shall
have few to serve them, if for their reward of
service, if for every particular that mny happen
in the success of tilings, or for doing thine*
better than some could wish, for refusing to do
all they wish, they shall be given up, in the time
of their master's wants, for a grievance, or a
sacrifice. But, for this I shall confidently speak,
from such crimes us truly deserve punishment
from the state, I hope 1 shall ever prnve myself
free, either in intention or net. My lords, I
speak not this arrogantly ; nor will I speak any
thing else to cast dirt nt those who have taken
paint to make me so foul ; but, to protest mine
innocency, in thnt measure, which 1 shall ever
hope to prove, nay, mn confident of, bcingjir-
fore such just judges. — I humbly beseech jour
lordships to he sensible of me in tlijs point,
what dishonour I have sustained, nut only at
home but abrnari ; wherefore, I humbly desire
your lordship* to hasten my trial, as soon us may
he, that I may no longer suffer than 1 mint
needs ; and yet I further desire of your lord-
ship* that no such precipitation may be u^ed,
as may disadvantage or may prejadiceiny cause.
— And here, iny fords, 1 had n purpose to offer
unto your lordships my voluntary absence from
this place, even now in. the beginning of the

handling of my cause ; as your lordships may
perceive in port, by my former carriage towards
the earl of Bristol. For, doubting lest my pre-
sence might any way disturb him and put nun
into passion, or any other way disadvantage him
in his cause, I did voluntarily, ni your lordship*
saw, absent myself. But, now thnt my accusers
have, not only, been content to make my pro-
cess, but to prescribe to your lordships the mnn-
ner of my judgment, and to judge me before I
am heard ; 1 shall not give way, in my own par-
ticular, 10 any of their unjust demands; hut
yet, I do submit myself in this, and in all things
else, to your lordship* consideration."

The lords took no further notice of the Mes-
sage that day ; and only ordered, that the eight
lords, appointed to report what was delivered
by the common*, against the Duke, at the con-
ference, should do it fully nnd entirely. And,
to that end, if they pleased, they were to rend
the same out of their notes; and it wi

1307] STATE TRIALS, 2Ch. I. \G2Q.— Impeachment qf the D. tf Buckingham, [UK*

agreed that each lord is and ought to report all
to the house, not to qualify the same in any
part ; and that nothing, so spoken and delivered,
should be imputed to the reporter. Also, that
they might help their memories with the gen-
tlemen of the house of commons, who spoke at
that conference.

The Judges forbid by the King to give their
Opinions in the Earl of Bristol's Case.

May 13. An order of the house was read,
concerning the Judges Opinions, on the two
Questions in the Earl of Bristol's Cnse before-
mentioned; whereupon they were called on for
that purpose. When the Lord Chief Justice
•aid:

" May it please your lordships ; According
to your commands, we appointed a time to have
taken into our consideration the two Questions
propounded by your lordships, 1st, ' Whether
in case of treason and of felony the king's tes-
timony is. to be admitted V Sndly, ' Whether
words spoken to the prince, being afterwards
king, made any difference in the case ?' But,
before our meeting, Mr. Attorney General, to
whom it belongs, according to the duty of his
place, to have an eye of care and vigilaucy in
cases concerning; the king, desired to know the
time of our meeting,nnd we told him accordingly.
But, before that time, he brought unto us a mes-
sage from the king, signifying his pleasure to this
effect : That his majesty was resolved, in this
and all other causes, to proceed justly and with
that moderation as became a just and gracious
king. And that his majesty was so sensible of
his honour, that he would not suffer the right of
his crown, which may justly be preserved, to be
diminished in his time. Therefore, his majesty's
pleasure was, That in any particular case or
question, which may arise in the Cause of the
earl of Bristol, and wherein the lords desired
our opinions, that, upon mature deliberation,
we should deliver the same according to our
consciences. HU majesty assuring himself, that
in nil things we will deliver ourselves, with that
justice and evenness, between the king and his
people, as shall be worthy of our places. That
to these general Questions, of which his majesty
could not discern the consequence which might
happen to the prejudice of his crown, each par-
ticular case varying according to circumstances,
so as it was very hard and dangerous to give a
general rule, according to the latitude of those
Questions; his majesty's pleasure was, there-
fore, that we should forbear to give an answer
thereto."

Articles of Impeachment against the
Duke of Buckingham.

May 8. The Commons brought up their
Articles of Impeachment against the duke of
Buckingham, which Articles are as follow :

" For the speedy redrew of great evils and
mischiefs, and of the chief cause of these
evils and mischief"*, which this kingdom of
England now grievously suffereth, and of
late years bath suifered, and to the honour

and safety of our sovereign lord the king, and
of his crown and dignity, and to the good
and welfare of his people ; the Commons in
this present parliament, by the anthorit y of
our said sovereign lord the king assembled,
do, by this their Bill, shew and declare
against George, duke, marquis, and earl of
Buckingham, earl of Coventry, viscount Vil-
liers, baron of Whaddon, great admiral of
the kingdoms of England and Ireland, and of
the principality of Wales, and of the domw
nions and islands of the same, of the town
of Calais, and of the marches of the same,
and of Normandy, Gascoigne, and Guienne,
general governor of the seas and ships of tat
said kingdoms, lieutenant general, admiral,
captain general and governor of his majesty ■
royal fleet aud army lately set forth, master
of the horse of our sovereign lord the king
lord warden, chancellor, nod admiral of the
cinque ports, and of die members thereof
constable of Dover castle, justice in eyre of
all the forests and chnsrs on this side the
river of Trent, constable of the castle of
Windsor, gentleman of his majesty's bed*
chamber, one of his majesty's most honour-
able privy council in his realms both in Eng-
land, Scotland, and Ireland, and knight of
the most honourable order of the garter ; the
Misdemeanors, Misprisions, Offences,Cria»es,
and other matters, comprised in the Artidei
hereafter following; and him the said doke
do accuse and impeach of the said Misde-
meanors, Misprisions, Offences, and Crimes.

Plurality of Offices,

I. " First, that whereas the great Offices ex-
pressed in the said duke's stile and title hereto-
fore have been the singular preferments of se-
veral persons eminent in wisdom and trust, aod
fully able for the weighty service aud greatest
employment of the state, whereby the said
offices were both carefully and sufficiently exe-
cuted, by several persons of sucb wisdom, trust,
and ability; and others also that were employed
by the royal progenitors of our sovereign lord
the king, in places of less dignity, were ranch
encouraged with the hopes of advancement;
and whereas divers of the said places, severally
of themselves, and necessarily, require the
whole care, industry, and attendance of a most
provident and most able person ; he the said
duke, being young and unexperienced, hath, of
late years, with exorbitant ambition, and for
his own profit and advantage, procured and
engrossed into his own hands the said several
offices, both to the danger of the state, the pre-
judice of that sen' ice which should have been
performed in them, and to the great discourage-
ment of others, that, by this procuring and en-
grossing of the said offices, are precluded from
such hopes, as their virtues, abilities, and pub-
lic employments, might otherwise have give*
them.

Buying the Admiral's Place.

II. " Whereas, by the laws and staluies of
this kingdom of England, if -any jmssou what

1509] STATE TRIALS, 2Ch.I. \6Qd.-?thc Earl <>f Br istol, and Lord Conway . [131Q

•oever give or pay* any sura of money, fee, or
reward, directly or indirectly, for any office or
offices, which in any wise touch or concern the
administration or execution of justice, or the
keeping of any of the king's majesty's town?,
fortresses, or castles, being used, occupied, or
appointed lor places of strength and defence,
the same person is immediately, upon the some
fee, money, or rtward, given or paid, to be ad-
judged a disabled person in the law, to all in-
tents and purposes, to have, occupy, and enjoy
the said office or offices, for the which he so
giveth or pa yet h any sum of money, fee, or re-
ward ; he the said duke did, in or about the
month of January, in the lGth year of the late ,
king James, of famous memory, give and pay
unto the right hon. Charles then earl of Not-
tingham, for the office of great admiral of Eng-
land and Ireland, and the principality of Wales,
and office of the general governor of the seas
and ships, to the intent that the said duke
might obfciin the said offices to his own use,
the snm of 3,000/. of lawful money of England ;
and did aUo, about the same time, procure
from the said king a further reward, for the
surrender of the said office to the said earl, of
an annuity of 1,000/. by the year, for and during
the life, of the said earl ; and, by the procure-
ment of the said duke, the snid king, of famous
memory t did, by his letters patents, dated the
f7th of* Jan. in the snid year of his reign, under
the great seal of England, grant to the said earl
the said annuity, which he the said earl ac-
cordingly had and enjoyed during his lire; and,
by reason of the said sum of money so as afore-
said paid by the said duke, and of his the said
dukeSs procurement of the said annuity, the
said earl of Nottingham did, in the same
month, surrender unto the said late king, of
famous memory, his snid offices, and his letters
patents of them ; and thereupon, and by reason
of the premises, the said offices were obtained
by the said duke, for his life, from the said king
of famous memory, by letters patents made to
the said duke of* the same offices, under the
great seal of England, dated the 28th of Jan.
m the said 16th year of the said king, of famous
memory : and the said offices of great admiral
and governor, as aforesaid, are offices that
highly touch and concern the administration
and execution of justice, within the provision
of the said laws and statutes of this Tenlm ;
which notwithstanding, the said duke hath un-
lawfully, ever since the first unlawful obtaining
of the said grant of the said offices, retained in
bis hands, and exercised them, against the laws
and statutes aforesaid.

Baying the Wardenship of the Cinque Ports.

III. * The snid duke did likewise, in and
about the moriih of December, in the 252nd
year of the said late king Jame5, of famous
memory, give and pay unto the right hon. Ed-
ward late lord Zoucli, lord warden of the cinque
ports, and of the members thereof, and con-
stable of the castle of Dover, for the said
offices, and for the surrender of the sard offices

of lord warden of the cinquo ports and con-
stable of the said castle of Dover, to be made
to the said late king, of famous memory, tht
sum of 1,000/. of lawful money of England ;
and then also granted an annuity of 500/. yearly
to the said lord Zouch, lor the life of the said
lord Zouch, to the intent that he the said duke
might thereby obtain the said offices to his own
use; and for and by reason of the said sum of
money so paid l>y the said duke, and of the an-
nuity so granted to the said Edward lord Zouch,
he the said lord Zcuch, on the 4th of Dec. in
the year aforesaid, did surrender his said office,
and his letters patents of them, to the said late
king : and thereupon, and by reason of the pre-
mises, he the said duke obtained the said office*
for his life, of the said late king, by his letters
patents under the great seal of England, dated
the 6th of Dec. in the aforesaid year. And
the said office of lord warden of the cmque-ports,
and of the members thereof, is an office that
doth highly touch and concern administration
end execution of justice ; and the said office of
constable of the castle of Dover, is an office
that highly concerned!) the keeping and de-
fence of the town and port of the said
castle of Dover, which is, and hath ever been
esteemed for n most eminent place of strength
end defence of this kingdom; the which not*
withstanding, the said duke hath unlawfully
ever since the first unlawful obtaining of the
said office, retained tliem in his hands, and ex-
ercised them against the laws and statutes afore-
said. - w

His not guarding the Seas.
"' IV. Whereas the said duke, by reason of
his * aid offices of great admiral of the king-
doms of England ami Ireland, and of the prin-
cipality of Wales, and of the admiral of the
cinque ports, and general governor of the seas
and ships of the said kingdoms, and hy reason
of the trust thereto belonging, ought at all
times, since the said offices obtained, to have
safely guarded, kept, and preserved the said
seas and the dominion of them ; and ought also,
whensoever they wanted either men, ships,
munition, or other strength whatsoever, that
might conduce to the better safeguard of them,
to have used, from time to time, his utmost
endeavour for tlie supply of such wants, to the
right honourable the lords and others of the
privy council, and by procuring such supply
from his sovereign or otherwise : He the said
duke hath, ever since the dissolution of the two
Treaties mentioned in the act of subsidies of
the 21st of the late king James, of famous me-
mory, (that is to say the space of three years
last pnst) neglected the just pcrfbimance of his
said office and duty, and broken the said trust
therewith committed unto him ; and hath not,
according to his said offices, during the time
aforesaid, suftly kept the said seas : insomuch,
that by reason of his neglect and default therein,
not only the trade and strength of this king-
dom of England hath been, during the sard
time, much decayed ; but the same seas inV>
have been, during the same time, ignoariniottsiy

1311] STATE TRIADS, 2 Ch. I. 1026.— Impeachment qf the D.qfBuckhiSham9 [13W

infected by pirates and enemies, to the loss
boili of very many s>hips and goods and of
many of the subjects of our sovereign lord the
king; and the dominion of the said seas, being
the ant icnt and undoubted patrimony of the
king* i)( Fjighnd, is tlioreby also in most iui-
luinent danger to be utterly lost.

His unjust stay of the Ship of Xewhaven,
called St. Peter, afier Sentence.

" V. Whereas about Michaelmas last past a
fillip called the St. Ptter \)( New haven, (where-
of John Mullcrau was nu>tcr) laden with divers
goods, merchandize, monies, jewels, and com-
modities, to the value of 40,000/. or there-
about*, for the proper account of M. de Vil-
li turs, (he then governor of Newhaven, and
other subjects of t lie French king, being in per-
fect amity and league with our sovereign lord
the kiug, was taken at sea by some of the ships
ot tiis majesty's late fleet, set forth under the
command of the said duke, as well by direction
from him the said duke as great admiral of
England, u> by the authority of the extraordi-
nary commission which be then had for the
couimn iid of the >aid licet, and was by them,
lo£tt her w ith her said goods and lading, brought
into the port of Plymouth, as a prize among
many others, upon probabilities that the said
•hip or coods belonged to the subjects of the
Ling of Spam : Ami that divers parcels of the
said goods and lading were there taken out of
tlie said ship St. Peter ; that is to say, 16 bar-
rels of cochineal, i\ bags of gold, 23 bags of sil-
ver, *J ho\e> of pcul and emeralds, a chain of
Ki'ld, jewel*, monies, nud commodities, to the
v«due Of vO.tMH)/. or thereabouts; and by the
»:tul duke were delivered into the private cus-
tiul\ ol one Gabriel Mar*h, servant to the said
«Jukt< ; .oul that the said ship, with the residue
vi her ->muU and hiding, was from thence sent
up nun the river of Thames, and there detain-
ed; whneup'm there was an arrest at Newha-
wi\ m the kingdom of France, on the 7th of
IKvt-mhi'i l.iit, ot' two ICnghsh merchant ships
ti.idmi'. iluilu r, us was alleged in certain peti-
ii. mn c\lol>ned by some Kn^Iish merchants
Uaibm; mio I ranee, to the lords and others of
hit tu.t|v»lN'» most honourable privy-council ;
itiici wlui h, I luit ih lo say, on the 28th of the
•Hid month, hit ninjcs.ty was pleased to order,
wuh ihr ad tier of his privy-council, That the
«*id «bi|i and pmd*, belonging to the subjects
,>i il>i- Yieuch kini;, should be re-delivered to
% i. li .i. th.iultl reclaim them; and accordingly
i«i>m iku>ii w ti i;imii to his ninjcMv'sj advocate
ti di,' iliititnuii of iidmimlty, by the right
|. ,i|i..,i » »M.- in John (look, knit^bt, one of hi>
lk .\\\ pmuipiil en claries of state, for the
.^ hi Kin* hiu"iui; the said ship and cimkN
. i-,l \ 'en »*l admiralty : And afterwards,
. . ■ vo, on ihw '.'tith of Jami.iiv la^t, it
%.,| hi tin ».nd court by the judge
., . %v ih iU lb,- consent of the •i-itd udvo-
, I » kv 1,*. J *lnp with whatsoever wood.**
, ,.., ,m l kki'ii ill her, (except U00

gilded l>eads, 5 sacks of ginger more, mention-
ed in the said decree) should be clearly re-
leased from further detention, and delivered to
the mnster ; and thereupon a commission un-
der seal was in that behalf duly sent out of
the said court to sir Allen Appesly, sir John
Wolsten holme, and others, for the due execu-
tion thereof: The said duke, notwithstanding
the said order, commission and decree, de-
tained still to his own use the said gold, silver,
pearls, emeralds, jewels, monies, and commo-
dities, so taken out of the said ship as afore-
said : And for his owu singular avail aud covet-
ousness, on the 6th of February last, having do
information of any new proof, without any le-
gal proceeding, by colour of his said office, un-
justly caused the said ship and goods to be again
arrested and detained, in public violation and
contempt of the laws and justice of this land,
to the great disturbance of trade, and prejudice
of the merchants.

His Extortion of 10,000/. from the East
India Company, with the Abuse of Par-
liament.

" VI. Whereas the honour, wealth, and
strength of this realm of England is much in-
creased by the traffick, chiefly, of such merchant!
as employ and build great warlike ships; a con-
sideration that should move all counsellors of
state, especially the Lord Admiral, to cherish
and maintain such merchants : The said duke
abusing the lords of the parliament, in the 21»t
year of the late king James, of famous memory,
with pretence of serving the state, did opprea
the East-India merchants, and extorted from
them 10,000/. in the subtil and unlawful man-
ner following, viz. About February in the year
aforesaid, he the said duke, heuriug some good
success that those merchants had at Orinus, in
the parts beyond the seas; by his agenU
cunningly, in or about the month aforesaid, hi
the same year of the said late king, endearour-
ed to draw from them some great sum ot'
money ; which their poverty, aud no gaia hy
that success at Ornius, made those merchants
absolutely to deny : whereupon he the said
duke perceiving that the said merchants were
then setting forth, in die course of their trade,
4 ships, ami 2 pinn ices, laden with goods aud
merchandize of very great value, like to k»e
their voyage if they should not speedily depart:
The said duke on the 1st of March then follow-
ing, in the said year of the said late king, did
move the lords then assembled in the said par-
liament, whether he should make May of any
"hips which were then in the ports, "(as beit:^
hijMi-adiniral he might) and n tmelv, those »l.ips
prepared fur the East-India voyage"-, winch ware
of great burthen, and well turnMicd : wl;:ch
motion I ein«: approved hy their lordships, tha
duke did stay tlmse ships accordingly : But lb»
oth of March following, when the deputy of
that company, wilti other of tlu>e nitrc!.rnt«,
d.d in ike t-.iit to the said duke for the rciearf
of those ahipi and pinnaces; he the said duke
said, lie had not been the occasion of their

I

1313] STATE TRIALS, 2 Cha. I. IGiZfi.— the Earl of Bristol, and Lord Comcay. [1314

| his goods or chattels without order of justice,
j or his own consent tiist duly hud and obtained :
J the tutd duke, Ikmii^ };ria;it admiral of Kuul.uid,
; governor-general and keeper of t'.:e said shins
I and seas, and who therefore ought to have and
| tike a special and continual care and diligence
■ how to pre-»ene the s:ime ; did nc\eithelc-s,
j in or about the end of July last, in the 1st war
i of our so\ereigu lord the king, wilder colour of
the said otlicc of meat admiral of Kughiiid, and
by indirect and suhtiie means and pmci'ics,
procure one of Uie principal ships of his majes-
ty's navy-royal, called the Vanguard, then tin-
der the command of captain John l'ei.n:iinton,
and >i\ other merchant ships of gre.a huitht n
and value, belonging to several pcvsoio i.i-
habitii^ in London, the natural subjects of his
majesty, to be convened over, with all their
ordnance, munition, tackle and apjmiel, into
tlie ports of the kingdom of France; to the
end thar, being there, thev might the more easily
be put into the hands of the French king, hi*
ministers and subjects, and taken into their
possession, command and po.vcr: and accord-
ingly the said duke, by his ministers and agent*,
with menaces, and other ill means and prac-
tices, did there, without order of justice, and
without the consent of the said masters and
owner*, unduly compel and enforce the said
masters and owners of the said six merchant-
ships, to deliver the said ships into the said
possession, command and power of the said
French king, his ministers and subjects: aid
by reason of his compulsion, and under the
pretext of his power as aforesaid, and b\ his
indirect practices as aforesaid, the said sh«p*
aforesaid, as well the said ship rojtd of his
majesty as the others belonging to the said
merchants were there delivered into the hands
and command of the said French kiiij.% hi-> mi-
nisters ai.d subjects, without either suflic.ei.l
security or assurance for rc-delivcry, or oiher
ncce*sury faction in that behalf taken and
provided, either by the sa'.d duke hineelf, <>r
otherwise by his direct on; coutr.wv to tho
duty of the said omccs of great admiral, goter-
nor-gcneraJ, and keeper of the said ships i.nd
seas, and to the faith ami trust in th:>t hth.df
reposed, and contrary to the dutv uhiih he
owcth to our fcoic:v;.-u loid the ki: »• in h.s
place of pmy.c*itiiiiM*!l>ir ; t«> the apparent
weukenieg of the na\al Mrvn-th of llu> king-
dom, to the grc;«t loss and prejudice <n"u.e v-id
merchant-, j-.nd against the lib' ilv ot lno>e miL-
ject? ot our sovereign b>rd the king that ;av
under the jurisdiction of the admiralty.

His practice for tht* employment of them
against itochcllc.

staying, but that bavins; heard the motion with
much earnestness in the lord* house of parlia-
ment, be could do no less than give t!;e order
they had done ; and therefore he willed them
to set down the reasons of their suit, which he
would acquaint the house withal'; yet iu the
mean time gave them leave to let their said
ships and pinnaces fall down as low as Tilbury.
And the 10th of March following, an unusual
joint action was, by his procurcmeut, entered
in the chief court of Admiralty, in the name of
tlie said late king and of the lord admiral,
against them, for 15,000/. Liken piratically by
some captains of the said merchant ships, and
pretended to be in the hand.-) of tlie F'usi-India
Company ; and thereupon the kind's advocate,
in the name of advocate for the late kieg and
lite said lord admiral, moved and obtained one
attachment, which, by the serjeant of the said
court of Admiralty, was served on the said
merchants in their court, the lGth of March
following : Whereupon the said merchants,
though there was no cause for their molest-
ation by the lord admiral, yet the next day they
were urged in the said court of Admiralty to
hring in the 15,000/. or go to prison. Where-
fore immediately tlie company of the said
merchants did again send the deputy aforesaid,
and some others, to make new suit unto the
■aid duke, for the release of the said ships and
pinnaces ; who unjustly endeavouring to ex-
tort money from the said merchants, protested,
That tlie ships should not go, except they com-
pounded with him ; and when tlft-y urged many
more reasons for the release of the said .-hips
and pinnaces, the answer of the said duke was,
That the then parliament must first be moved.
The said merchant-* therefore Icing in this
perplexity, and in their consultation, the 23d ol
that month, even ready to give over that trade,
jet considering that tl«.v should lose more than
was demanded by unlading their ships, besides
their voyage, they resolved to j^ive the said
duke 10,000/. for his unjust demands. And he
the said duke, by the undue means aforesaid,
and under colour of hi* office, and upon false
pretence of rights, unjustly did exact and extort
from tlie said merchants the 10,000/. and re-
ceived the same about the 'iftth of April fol-
. owing the discharge of those ship*, which were
not released by him, till they the said merchants
had yielded to give him the said duke the
10,000/. for the said release, and for the false
pretence of rights made by the said duke as
aforesaid.

His putting some Ships into the hands of the

French.

u VCI. Wrhcreas the Ships of our sovereign
lord the king, and of his kingdoms aforc-aid,
are the principal strength and d< fence of the
said kingdoms, and ouchtthcref>re t> l>e always
preserved, aud safely kept, under the command,
and for die service, of our sovereign lord the
kiuc, no less than any the lortressi sand castles
of the said kingdoms : and whereas no subject
of this realm ought to he dispossessed of any

VOL. II.

" VIII. The said diuc, contrary to the pur-
pose of our so* ere _;n hud the king, and hit
majcMy's known y.-.d fir the maintenance and
advancement of the true religion e tabhshed in
the Church of F.nil ;i.d, ki.ouiuc that the »:iid
ships were inte-mhd to he employe3*! by the said
i French kii.;: cuainst th<^e of the same religion
at Roche lie, aud tLewiiuie, iu the kingdom of
4p

1315] STATE TRIALS, 2Cha. I. 102C.— Impeachment qf the D. qf Buckingham, [1316

France, did procure the said ship royal, and
compel, as aforesaid, the said six other ships to
be delivered unto the suid French king, his
ministers and bubjects, as aforesaid ; to the
end the Said ship* might bo u-cd and em-
ployed, by the said French king, in his intend-
ed war against th»se of the said religion in the
said town of Kochellc, and elsewhere within
the kingdom of France : and the said ship3
were, uud have been since, so used and cm-
ployed by the said French king, his ministers
and subjects, against them. And this the said
duke did, as aforesaid, in great and most appa-
rent prejudice of the said religion, contrary to
the purpose and intention of our sovereign lord
the king, and against his duty in that behalf,
being sworn counsellor to his majesty, and to
the great scandal and dishonour of this nation.
And notwithstanding the delivery of the said
ships by his procurement and compulsion, as
aforesaid, to be employed, ns aforesaid, the
said duke, in cunning and cautelous raunner,
to mask his ill intentions, did, at the parliament
held at Oxford in August last, before the com-
mittee of both houses of parliament, intimate
and declare, that the said ships were not, nor
should they he so used and employed against
those of the said religion, us aforesaid ; in con-
tempt of our sovereign lord the king, and in
fibuse of the said houses of parliament, and in
violation of that truth which every man should
profess.

His compelling Lord Roberts of Truro to buy
his Title of Honour.

" IX. Whereas the Titles of. Honour of this
kingdom of England were wont to be conferred,
as great rewards, upon such virtuous and in-
dustrious persons as had merited them by their
faithful service ; the said duke, by his importu-
nate and subtile procurement, hath not only
perverted that antierit and honourable wav,
out also unduly, for his own particular gain, he
hath enforced some that were rich (though un-
willing) to purchase honour ; as the lord
Roberts, baron of Truro, who, by practice of
the said duke and his agents, was drawn up to
London, in or about October in the 22nd year
of the reign of the late king James of famous
memory, and there so threatened and dealt
withal, that by reason thereof he yielded to
give, and accordingly did pay the sum of 10,000/.
to the said duke, and to his use ; for which
said sum, the said duke in the month of Jan.
in the 22nd year of the said late kins, procured
the tiflc of baron Roberts of Truro, to the said
lord Roberts. In which practice, as the said
lord Roberts was much wronged in this parti-
cular, so the example thereof tcudcth to the
prejudice of the gentry, and dishonour of the
nobility of this kingdom.

His selling Places of Judicature.

" X. Whereas, no Place of Judicature in
the courts o( justice of our sovereign lord the
king, nor other like preferments given by the
kings of this realm, ought to be procured by

any subject whatsoever for any reward, bribe,
or gift ; he the said duke in or a bout .the mouth
of Dec. in the 18rh year of the reign of tbe
late king James of famous memory, did procure
of the said king, the oilice of high treasurer of
England to the lord viscount Mandeville, now
earl of Manchester; which otiice, at his pro-
curement, was given and granted accordingly
to the lord viscount Mandeville : and, as a
reward for the said procurement of the same
grant, he the said duke did then receive to his
own use, of and from the said lord viscount
Mandeville, the sum of 20,000/. of lawful
money of England. And also in or about the
mouth of Jan. in the 16th year of the reign of
the said late king, did procure of the said late
king of famous memory, the office of master of
. the -wards and liveries to and for sir L. Crao-
field afterwards earl of Middlesex, which office
was, upon the same procurement, givtn and
granted to the said sir L. (ran field: and, asi
reward for the same procurement, he, the said
duke, had, to his own use, or to the use of some
other person by him appointed, of the said ur
L. C ran field, the sum of 6,000/. of lawful money
of England, contrary to the dignity of our sore*
reign lord the king, and against the duty that
should have been performed by the said dake
unto him.*

His procuring Honours for his poor Kindred.

" XI. That he the said duke hath, within
these ten years last past, procured divers Tidei
of Honour to his mother, brothers, kindrtd sod
allies ; as, the title of countess of Buckingham
to his mother, while she was sir Tho. Comptoo'i
wife ; the title of earl of Anglesey to hit
younger brother, Christ. Villiers ; the titles of
baron of Ncwnham Padocks, discount Fielding
and earl of Pen high, to his sisters husband,
sir Wm. Fielding; the titles of baron of St oak
and viscount Purbeck, to sir John Villiers, elder
brother unto the said duke ; and divers mora
of the like kind to his kindred and allies;
whereby the noble barons of England, so well
deserving in themselves, and in their ancestor*,
have been much prejudiced, and the crown
disabled to reward extraordinary virtues in fu-
ture times with honour, while the poor estate]
of those for whom such unnecessary advance-
ment hath been procured, are apparently likely
to be more and more burthensome to the king,
notwithstanding such annuities, pensions, and
grants of lands annexed to the crown, of treat
value, which the said duke hath procured
for those his kindred, to support these their
dignities."

His exhausting, intercepting, and misemploy-
ing the King's Revenue.

" XII. He the said duke, not contented with
the great advancement formerly received from
the late king, of famous memory, did, by hii
procurement and practice, in the 14th year of

* Vide Howell's Letters, p. 116, quoted
ante, p. 125$.

1317] STATE TRIALS, 2 Ch. I. 1 026 the Ear! qfJhistol, and Lord Convoy. [ISIS

the said king, for the support of the many places,
honours and dignities conferred on him, obtain
a grant of dhcrs manors, parcel of the revenue
of the crown, and of the duchy of Lancaster,
to the yearly value oi 1,097/. 2*. 0£(/. of old rent
with all woods, timber, trees, aud advowsons ;
part whereof, amounting to the annual sum of
7-17/. 13*. \d. whs rated at the sum of only 320/.
though, in truth, of so fur greater value. And
like ww, in the 16th year of the same king's
reign, did procure divcYs other manors, annexed
to the crown, of the yearly value, at the old
rent, of 1,338/. or thereabouts, according as in
a schedule hereunto annexed appeareth. In the
warrant for passing of which lands, he, by his
great favour, procured divers unusual clauses
to be inserted, \iz. That no perquisites of
courts should be valued, and that all bailiff- fees
should be reprised in the particulars upon
which those lands wcie rated; whereby a pre-
cedent huth beeu introduced, which all those
who, since that time, have obtained any lands
from the crown, have pursued to the damage
of his late majesty and of our sovereign lord the
king that now is, to an exceeding great value.
And afterwards he surrendered to his said ma-
jesty divers manors and hinds, parcel of those
lands formerly granted unto him, to the value
o(7"iol. 18s.?\cl. per annum; in consideration
of which sum udcr, he procured divers other
lauds of the said late king to be sold and con-
tracted tor, by hi* own servants and agents, and
thereupon, hath obtained grants of the same to
pass from his late majesty to several persons of
this kingdom; ami hath caused tallies to be
Stricken for the money, lning the consideration
mentioned iu those grants in the receipt of the
exchequer, :is if such monies liad really come to

furnishing and victualling of his royal uavy ; bj
which secret and colouiuble devices the con-
stant and ordinary course of the exchequer hath
been broken, there bein^ no means, by mat-
ter oi' record, to charge either the treasurer or
victualler of the navy with those sums which
ought to ha\c come to their hands, and to be
accompted for to his majesty : and such a confu-
sion and mixture hath been made between the
king's estates and the duke's, as cannot be cleared
by the legal entries aud records, which ought to
be truly and faithfully made and kept, both for
the safety of his majesty *s treasure, and for the
indemnity of his oiaeers and subjects whom it
doth concern. And also in the 16th and
20th years of the said king, he did procure to
himself several releases from the said king, of
divers great sums of money of the said king by
him privately received, and which he procured,
that he might detain the same for the support
of his places, honours, and dignities. - And
these things, and divers others of the like kind,
as appeareth in the schedule annexed, hath he
done, to the exceeding diminution of the reve-
nue of the crown, and in deceit both of our so-
vereign lord the king that now is, and of the
late king James, of famous memory, and to the
detriment of the whole kingdom.

His transcendent Presumption in giving Physic

to the King.

" XIII. Whereas special care and order hath
been taken by the laws of the realm, to restrain
and prevent the unskilful administration of.
physic, whereby the health and life of man
be much endangered : aud whereas most espe-
cially, the royal persons of the kings of the
realm, in whom we their loyal subjects humbly

his majesty^ coffers ; whe reas the duke (or some challenge a great interest, are, and always have

other by his appointment; hath indeed received
the same muds, and expended them upon his
own occasions. And notwithstanding the great
and inestimable gain made by him, by the sale
of offices, honours, and by other suits by him
obtained from his majesty, and for the counte-

been esteemed by u>. so sue red, that no tiling
ought to be prepared fur them, or administered
unto them, in the way of physic or diet, in the
times of their sickness, without the consent and
direction of some of their sworn physicians,
apothecaries, or surgeons: and the boldness of

naneing of divers projtcts, and other courses, such (how near soever to them in place and

burthensome to his maje-sty's realms, both oi
England and Ireland ; the said duke hath like-
wise, by his procurement and pructiec,. received
into his hands, ami disbursed to his own use,
exceeding great sums that were the monies oi
the late kiu«, of famous memory, as appeareth
aho in the said schedule hereunto annexed : and,
the better to colour his doings in that behalf,
hath obtained several privy-seals from his late
majesty and his majesty that nov\ is, warranting
the payment of great sums to persons by him
named, causing it to be recited m such privy-
aeals, as if those sum* were dnectcd for secret
sen ices concerning the state, which were, not-
withstanding, disposed of to his own use ; and
other privy-seals have been procured by him fur
the discharge of those persons without accompt ;
and by the like fraud and practice, under colour
of free gifts from his majesty, he hath gotten into
liis hands great sums which were intended by
his majesty to be disbursed fur the preparing!

favour) who have forgotten their duties so far
as to presume to offer any thing unto them be-
yond their experience, hath been always r.tnked
in the u u in her of high offences and misde-
meanors. And whereas the sworn physicians
of our late sovereign lord kint, James, of blessed
memory, attending on his majesty in them< nth
of Man h, in die Wind year of his most glorious
reign, in the times ol his sickness, being an
ague, did, in due and necessary care of, and
for the recovery of his health, and preser-
vation of his per>on, upon and after several
mature consultations in that bubal l hud and
holden, at several times in the same month,
resolve and give directions, that nothing should
be applied or given unto his highness, by way
of physic or diet, during his said sickness, but
by and upon their generul advice and consent*,
and after good deliberation thereof first had ;
more especially by their like care, and upon
like consultations, did justly resolve, and pub-

1319] §TATE TRIALS, 2 Ch. I. \foG.— Impeachment qf the D. qf Buckingham, [132&

licly give warning to, and for all the other

fen ij em en, and other servants and officers of
lis suid late majesty's bed-chamber, that no
meat or drink whatsoever should be given unto
him, within two or three hours next before the
usual time of, and for the coming of his fit in
the said ague, nor during the continuance
thereof, nor afterward*, until his cold fit was
past: ttie snid duke of Buckingham, being a
sworn servant of his said late majesty of and in
his majesty's said bed-chamber, contrary to his
duty, mid the tender respects which he ought
to have had of his majesty's most sacred per-
son, and after the consultations, resolution*,
directions, and warning aforesaid, did, never-
theless', without any sufficient warrant in that
behalf, unduly cause and procure certain plais-
ters, and a certain drink or potion to he pro-
vided for the use of his said majesty, without
the direction or privity of his snid late majesty's
physicians, not prepared by any of his sworn
apothecaries or surtieons, but compounded of
several ingredients to them unknown: notwith-
standing the same plaisters, or some plaister
like thereunto, having been formerly admi-
nistered unto his said majesty, did produce
such ill effect?,- as that some of the said sworn
physicians did altogether disallow thereof, and
utterly refused to meddle any. further with his
said majesty until these plaisters were removed,
as being hurtful and prejudicial to the health
of his majesty; ye?, nevertheless, the same
plnisters, as also a drink or potion, was pro-
Tided by him the said duke; which he, the said
duke, by colour of some insufficient and slight
pretences, did, upon Monday the 21st day of
March, in the SfJnd year aforesaid, when his
majesty by the judgment of his said physicians,
was in the dedication of his disease, cause and
procure the said planter to be applied to the
breast and wrists of his said late majesty.
And then also, at and in his majesty's fit of
the said ague, the said Monday, and at
several times within two hours before the
coming of the said tit, and before his majesty's
then cold fit was passed, did deliver, and cause
to be delivered, several quantities of the said
drink or potion to his suid late majesty; who
thereupon, at the same times, within the sea-
sons in that behalf prohibited by his majesty's
ph\sician>, as aforesaid, did, by the metus and
procurement of the said duke, drink, and take
divers quantities of the said drink or potion. —
Afier which said plaisters, and drink or potion,
applied and given unto, and taken and received
by his said majesty as aforcsiid, great dis-
tempers and divers ill sympto'i-s appeared upon
bis said majesty, insomuch that the said physi-
cians finding his majesty the next morning
much wor»e in the estate of his health, and
holding consultation thereabout, did, by joint
content, «end to the said duke, praying him
not to adventure to minister to his majesty any
more phytic, without their allowance and ap-
probati mi. And his said majesty finding him-
self much diseased and affected with pain and
sickness, after his then fit, when by the course

of his disease he expected intermission and
.ease, did attribute the cause of such his trouble
unto the said plaister and drink, which the said
duke had so given, and caused to be adminis-
tered unto him. Which said adventurous act,
by a person obliged in duty and thankfulness,
done to the person of so great a king, after so
ill success of the like formerly administered,
contrary to such directions as aforesaid, and
accompanied with so unhappy event, to the
great grief and discomfort of all his ma-
jesty's subjects in general, is an otTcnce and
misdemeanor of so high a nature, as mayjusdj
be called, and is by the said commons deemed
to be, an act of transcendent presumption, and
of dangerous consequence.*

* Concerning the matter of this Charge,
something has already been inserted in U:a
volume. The following is Wilson's account ef
the circumstances of king James's deal!:, with
a Note upon it as published by bishop
Kennett :

" But our king, that was very much imps*
tient in his health, was patient in his sick ecu
and death. Whether he had received any thin$
th.it extorted his apuish fits into a fever, which
might the sooner stupify the spirits, and hasten
his end, cannot be averted ; but the countess
of Buckingham, w ho trafficked much with raouo-
tehnnks, and w hose fume had no great savnir,
had been tampering with him, in the absence
of the doctors, and had given him a mediciae
to drink, and laid a plaister to his side, which
the king much complained of, and they did
rather exasperate his distemper than allay it:
And these things were admitted by the insinuat-
ing persuasions of the duke her son, who told
the kins:, they were approved medicines, and
would do him much good. And though the
duke after strove to purge himself for this ap-
plication, as* having received botli medicine
and plaister from Dr. Remington at Dutuuov
in Essex, who had often cured agues and such
distempers with the same; yet they were ar-
guments of a complicated kind, not easy to un-
fold; considering that whatsoever -he (received
from the doctor in the country, he might apply
to the king what be pleased in the court; be-
sides the act itself, though it had been the be*t
medicine in the world, was a daring not justici-
able : and some of the king's physicians mutter-
ed against it, others made a great noise, and
were forced to fly for it : and though the still
voice was quickly silenced by the duke's power,
yet the clamorous made so deep impressions
that his innocence could never wear them out.
And one of Buckingham's great provocations wai
thoutiht to be his fear, that the king being no*
weary of his too much greatness and power,
would set up Bristol, his deadly enemy, against
him, to pull him down. And this medicire
was one of those 13 Articles that after were
laid to his charge in parliament, who may I*
misinformed, but seldom accuse any upon Mbf
rumour, or bare suggestion ; and therefore u
will be a bard task far any man to excuse the

1591] STATE TRIALS, 2 Ch. I. IG26.— the Earl of Bristol, and Lord Conway. [1322

Conclusion.

" And the said commons, by protestation,
saving to themselves the liberty of exhibiting,
at any time hereafter, any oiher Accusation
or Impeachment against the said duke, and
also ot replying to tbe Answers thnt the said
duke shall make unto the said Angles or to
any of them, ami ij offering further proof also
of 1 lie premisses, or of any of tin in, as t he case
fch.dl, acrording to thf course of parliament,
require, do pray, thnt the sail duke may be
pitt t.,> answer all anil every the premisses ;
and thnt such proceeding, examination, trial
an;! judgment, may be upon every of them
Ind and ubed, us is agreeable to law and
justice."

itEi'UKT OF THE Co.VVr.REXC E TOUCHING THE

Dike of Buckingham.

The above Articles were delivered by ihe
commons to the lords at a Conference of both
liou-e», which spuu out two days time. It was
managed by eight members, and sixteen more
as a*>inianls. The eight chief Managers were
sir Dudley Diggs, Mr. Herbert, Mr. Seidell, Mr.
Glanvile, Mr. Pyin, Mr. Sherland, Mr. Wan-
de"fnrd, and sir John KUiot.

Sir Dudley Diggs, by way of prologue, nade
this speech ;

" My Lords; There are so many things of
great importance to be paid in very little time
to- (I ay, thut I conceive it will not be unaccept-
able to your lordships, if (setting by all rheto-
rical atVectatious) I only in plain country lan-

king his successor for dissolving that parliament,
to preserve one that was accu&ed by them for
poisoning his father."

To this account of Wilson the following
note is subjoined in Kenuett's Com pi. Hist.

" Dr. Eglisham, oneoFthe king's physicians,
was obliged to lice beyond seas for some ex-
pressions he had muttered about the manner
of his majesty's death, and lived at Brussels
many years after. It was there be published a
Book, to prove king James was poisoned ; giv-
ing a particular account of all the circumstances
of his sickness, and laying his death upon the
duke t»f Buckingham and his mother. I have
read the book some 15 years ago in the hands
of Don Pedro Konkillor, the Spanish ambassa-
dor, who toJd me it had been translated into
High- Dutch, about the time Gustavus Adolphus
was entering into Germany for recovering of
the Palatinate: and that by a secret order of
the court of Brussels, to throw dirt upon the
royal family of Kugland. Among other re-
markable passages 1 remember in tbe Book*
there is one about the Plaister that was ap-
pied to the king's stomach. He says, It was
given out to have been inithridate, and that
one Dr. Remington had sent it to the duke, as
a medicine witli which he had cured a great
many of agues in Kssex. Now Eglisham de-
uies it .was mithridnto, and says, Neither he
nor any other physicians could tell what it was.
lie adds, That sir Matthew Lister and he being

guage, humbly pray yuur lordships favour 10 in-
clude many excuses necessary to my manifold
infirmities, in this one word, 1 am commanded
by the knights, citizens, and burgesses of the
Commons house, to present to your lordships
their most affectionate thanks for your ready
•condescending to this Conference; which, out
oi confidence in your great wisdoms, and ap-
proved justice, for the service ot hw majesty,
and the welfare of this realm, they- desired
upon this occasion.

•' The House of Commons, by a fatal and
universal concurrence of Complaints, from all
the sea-bordering parts of this kingdom, did
find a great and grievous interruption, and stop
of Trade and Trailic; the ba»e pirates of Sally
ignominiously infesting our coasts, taking our
ships and goods, and leading away the sub-
jects of this kingdom into barbarous captivity ;
while, to our shame and hi nderance of com-
merce, our enemies did (as it were) besiege our
ports, and block up our best . rivers mouths.
Our friends, on slight pretences, made embar-
goes of our merchants goods, and every nation
(upon the least occasion) was ready to contemn
and slight us. So great was the apparent di-
minution of the nntient honour of this crown,
and once strong reputation of our nation.
Wherewith the Commons were more troubled,
calling to remembrance, how formerly, in
France, in Spain, in Holland, and every where
by sea and laud, the valours of this kingdom
had been better valued, and even in latter
times,, within remembrance, when we had no

the week after the king's death at the earl of
Warwick's house in Kssex, they sent- for Dr.
Remington, who lived hard by, and asking him,
What kind of Plaister it was he had sent to
Buckingham for the cure of an ague, and whe-
ther he knew it was the king the duke designed
it for ? Remington answered, That one Baker,
a servant of the duke's, came to him in his mas-
ter's name, and desired him, if he had any cer-
tain specific remedy against an ague, to send it
him ; and accordingly he sent him inithridate
spread upon leather, but knew not till then that
it was designed for the king. But, continues
Eglisham, sir Matthew Lister and I shewing
him a piece of the Plaister we had kept after it
was taken off, he seemed greatly surprised, and
•flered to take his corporal oath, that it was
none of what he had given Baker; nor did he
know what kind of mixture it was. — But the
tr«ith is,* this Book of Eglisham's is wrote with
such an air of rancour and prejudice, that the
maimer of his narrative takes oil' much from
the credit of what he writes."

Other curious circumstances concerning
king James's death are reported by Wilson.
Howell says in a letter written apparently
about a fortnight after the king's death (the
printed date, 1 1 Dec. 1625, is clearly wrong)
41 He died of a fever which began with an ague, .
and some Scotch doctors mutter at a Plaster
the countess of Buckingham applied at the out-
side of bis stomach.''

1307] STATE TRIALS, 2Ch. I. 1620.— Impeachment tf th* D. of Buckingham, [130*

agreed that each lord is and ought to report all
to the house, not to qualify the same in any
part ; and that nothing, so spoken and delivered,
should be imputed to the reporter. Also, that
they might help their memories with the gen-
tlemen of the house of commons, who spoke at
that conference.

The Judges forbid by the King to give their
Opinions in the Larl of Bristol's Case.

May 13. An order of the house was read,
concerning the Judges Opinions, on the two
Questions in the Earl of Bristol's Case before-
mentioned; whereupon they were called on for
that purpose. When the Lord Chief Justice
•aid:

" May it please your lordships ; According
to your commands, we appointed a time to have
taken into our consideration the two Questions
propounded by your lordships, 1st, ' Whether
in case of treason and of felony the king's tes-
timony is to be admitted ?* Sndly, ' Whether
words spoken to the prince, being afterwards
king, made any difference in the case ?' But,
before our meeting, Mr. Attorney General, to
whom it belongs, according to the duty of his
place, to have an eye of care And vigilancy in
cases concerning the king, desired to know the
time of our meeting,nnd we told him accordingly.
But, before that time, he brought unto us a mes-
sage from the king, signifying his pleasure to this
effect : That his majesty was resolved, in this
and all other causes, to proceed justly and with
that moderation as became a just and gracious
king. And that his majesty was so sensible of
his nonour, that he would not suffer the right of
his crow iv, which may justly be preserved, to be
diminished in his time. Therefore, his majesty's
pleasure was, That in any particular case or
question, which may arise in the Cause of the
carl of Bristol, and wherein the lords desired
our opinions, that, upon mature deliberation,
we should deliver the same according to our
consciences. His majesty assuring himself, that
ill ull things we will deliver ourselves, with that
justice and evenness, between the king and his
people, as shall be worthy of our places. That
to these general Questions, of which his majesty
could not discern the consequence which might
happen to the prejudice of his crown, each par-
ticular case varying according to circumstances,
so as it was very hard and dangerous to give a
general rule, according to the latitude of those
Questions; his majesty's pleasure was, there-
fore, that we should forbear to give an answer
thereto."

Articles of Impeachment against the

Dl'KE OF BUCKINGHAM.

May 8. The Commons brought up their
Articles of Impeachment against the duke of
Buckingham, which Articles are as follow :

" For the speedy redress of great evils and
mischiefs, and of the chief cause of these
evils and mischiefs, which this kingdom of
England now grievously suffereth, and of
foe years hath suffered, and to (be honour

and safety of our sovereign lord the king, aott
of his crown and dignity, and to the good
and welfare of his people ; tlie Commons in
this present parliament, by the authorit y of
our said sovereign lord the king assembled,
do, by this their Bill, shew and declare
against George, duke, marquis, and earl of
Buckingham, earl of Coventry, viscount Vil-
liers, baron of Whaddon, great admiral of
the kingdoms of England and Ireland, and of
the principality of Wales, and of the domi<
nions and islands of the same, of the towa
of Calais, and of the marches of the same,
and of Normandy, Gascoignc, and Guienne,
general governor of the seas and ships of tat
said kingdoms, lieutenant general, admiral,
captain general and governor of his majesty's
royal fleet and army lately set forth, master
of the horse of our sovereign lord the king,
lord warden, chancellor, and admiral of tie
cinque ports, and of the members thereof
constable of Dover castle, justice in eyre of
all the forests and chases on this side the
river of Trent, constable of the castle of
Windsor, gentleman of his majesty's bed*
chamber, one of his majesty's most honour-
able privy council in his realms both in Eng-
land, Scotland, and Ireland, and knight of
the most honourable order of the garter ; the
Misdemeanors, Misprisions, Offences,Crime5,
mid other matters, comprised in the Artkkt
hereafter following ; and him the said duke
do accuse and impeach of the said Misde-
meanors, Misprisions, Offences, and

Plurality of Offices.

I. " First, that whereas the great Offices ex-
pressed in the said duke's stile and title hereto-
fore have been the singular preferments of se-
veral persons eminent in wisdom and trust, aad
fully able for the weighty service and greatest
employment of the state, whereby the said
offices were both carefully and sufficiently exe-
cuted, bv several persons of such wisdom, trust,
and ability ; and others also that were employed
by the royal progenitors of our sovereign lord
the king, in places of less dignity, were mock
encouraged with the hopes of advancement;
and whereas divers of the said places, severally
of themselves, nnd necessarily, require the
whole care, industry, and attendance of a most
provident and most able person ; he the said
duke, being young and unexperienced, hath, of
late years, with exorbitant ambition, and for
his own profit and advantage, procured and
engrossed into his own hands the said several
offices, both to the danger of the state, the pre-
judice of that service which should have been
performed in them, and to the great discourage-
ment of others, that, by this procuring and en-
grossing of the said offices, are precluded froai
such hopes, as their virtues, abilities, and pub-
lic employments, might otherwise have gives
them.

Buying the Admiral's Plane.

II. " Whereas, bv the laws and ataialss of
this kingdom of England, if «ny nasson trhsf

1309] STATE TRIALS, 2Ch.L 1626.— ^the Earl of Bristol, and Lord Conway. [13IQ

soever give or pay- any sura of money, fee, or
reward, directly or indirectly, for any office or
offices, which in any wise touch or concern the
administration or execution of justice, or the
keeping of any of the king's majesty's towns,
fortn^e-*, or castles, being used, occupied, or
appointed lor places of strength and defence,
the same person is immediately, upon the same
fee, money, or reward, given or paid, to be ad-
judged a disabled person in the law, to all in-
tents and purposes, to have, occupy, and enjoy
the said office or offices, for the which he so
giveth or payeth any sum of money, fee, or re-
ward ; he the said duke did, in or about the
month of January, in the 10th year of the late ,
king James, of famous memory, give and pay
tinio the right hon. Charles then earl of Not-
tingham, for the office of great admiral of Eng-
land and Ireland, and the principality of Wales,
and office of the general governor of the seas
and shi's, to the intent that the said duke
might obtain the said offices to his own use,
the sum of 3,000/. of lawful money of England ;
and did also, about the same time, procure
from the said king a further reward, fur the
surrender of the said office to the said earl, of
an annuity of 1,000/. by the year, for and during
the life of the said earl ; and, by the procure-
ment of the said duke, the said king, of famous
memory, did, by his letters patents, dated the
37th or* Jan. in the said year of his reign, under
the great seal of England, grant to the said earl
the said annuity, which he die said earl ac-
cordingly had and enjoyed during his life; and,
by reason of the said sum of money so as afore-
said paid by the said duke, and of his the said
duke's procurement of the said annuity, the
taid earl of Nottingham did, in the same
month, surrender unto the said late king, of
famous memory, his said offices, and his letters
patents of them ; and thereupon, and by reason
of the premises, the said offices were obtained
by the said duke, for his life, from the said king
of famous memory, by letters patents made to
the said duke of the same offices, under the
great seal of England, dated the 28th of Jan.
m the said 16th year of the said king, of famous
memory : and the said offices of great admiral
and governor, as aforesaid, are offices that
highly touch and concern the administration
and execution of justice, within the provision
of the said laws and statutes of this realm ;
which notwithstanding, the said duke hath un-
lawfully, ever since the first unlawful obtaining
of the said grant of the said offices, retained in
bis hands, and exercised them, against the laws |
and statutes aforesaid.

Baying the Ward en ship of the Cinque Ports.

III. " The said duke did likewise, in and
about the month of December, in the Q2nd
year of the said late king James, of famous
memory, give and pay unto the right hon. Ed-
ward late lord Zouch, lord warden of the cinque
ports, and of the members thereof, and con-
gtuble of ttie castle of Dover, for the said
offices, and for the surrender of the laid offices

of lord warden of the cinquo ports and con-
stable of the said castle of Dover, to be made
to the said late king, of famous memory, the
sum of 1,000/. of lawful money of England ;
and then also granted an annuity of 500/. yearly
to the said lord Zouch, lor the life of the said
lord Zouch, to the iutent that he the said duke
might thereby obtain the said offices to his own
use; and for and by reason of the said sum of
money so paid by the said duke, and of the an-
nuity so granted to the said Edward lord Zouch,
he the said lord Zcuch, on the 4th of Dec. in
the year aforesaid, did surrender his said office,
and his letters patents of them, to the said late
king : and thereupon, and by reason of the pre-
mises, be the said duke obtained the said office*
for his life, of the said late king, by his letters
patents under the great sea) of England, dated
the 6th of Dec. in the aforesaid year. And
the said office of lord warden of the cinque-ports,
and of the members thereof, is an office that
doth highly touch and concern administration
and execution of justice ; and the said office of
constable of the castle of Dover, is an office
that highly concerned the keeping and de-
fence of the town and port of the said
castle of Dover, which is, and hath ever been
esteemed for n most eminent place of strength
and defence of this kingdom; the which not-
withstanding, the said duke hath unlawfully
ever since the first unlawful obtaining of the
said office, retained them in his hands, and ex-
ercised them against the laws and statutes afore-
said. ,

His not guarding the Seas.
" IV. Whereas the said duke, by reason of
his .fcaid offices of great admiral of the king-
doms of England and Ireland, and of the prin-
cipality of Wales, and of the admiral of the
cinque ports, and general governor of the seas
and ships of the said kingdoms, and by reason
of the trust thereto belonging, ought at all
times, since tlie said offices obtained, to have
safely guarded, kept, and preserved the said
seas and the dominion of them ; and ought also,
whensoever they wanted either men, ships,
munition, or other strength whatsoever, that
might conduce to the better safeguard of them,
to have used, from time to time, his utmost
endeavour for the supply of such wants, t«» the*
right honourable the lords and others of tlie
privy council, and by procuring such supply
from his sovereign or otherwise : He the said
duke hath, ever since the dissolution of the two
Treaties mentioned in the act of subsidies of
the 2 1st of the late king James, of famous me-
mory, (that is to say the space of three years
last paM) neglected the just pcrfoi mance of his
said office aud duty, and broken the said trutl
therewith committed unto him ; and hath not,
according to his said offices, during the time
aforesaid, suftly kept the said seas : insomuch,
that by reason of Iris neglect and default therein,
not only the trade and strength of this king-
dom of England hath been, during the said
time, much decayed ; hut the same seas a1«o
have been, during the same time, ignoiainiousiy

1327] STATE TRIALS, 2 Ch. I. 1628.— Impeachment qfihe D. <f Buckingham, [192$

binds hi:n to all care .ami perpetual observance seas, and with losing the possession of (he
of whatsoever conduceth to that safe-guard, as crown.
in Custos Siuilli, C'usfis Murchiaruw, Cusros
Portium, et Custos Comitatuuin, agreeable
to the? practice of former times. 1. In certi-
fying yearly to the king, and his council, the
many forces both of the king's ships, and ships
of merchants, the names of the owners, the
number of mariners, &c. That the king and
liis council may always know his force by sea.
2. In shewing wants of ships, &c. for the safe-
guarding of the sens, with the estimates of the
Sunply, that so they might be procured. In
personal attendance upon the service of guard-
ing the seas upon all occasions of weight : in
.7 II. 4, Nicholas Blackborne, and Richard
Cliderowe, one of the knights of Kent, were
made Admiral for keeping the seas, upon con-
sideration had of it in parliament, and the
other knight being Robert Clifford, it was
•greed in parliament that he should have the
voices of both, because the other must of ne-
cessity be absent : and they both amongst other
things petitioned the Council, that if the king
in his person should come on the sea, they
might have such a liberty lo wait upon him, as
th v might make their lieutenant during the
time for the service of their places. But the
council that allowed the rest, or most of their
demands, answered to that, ' Le council ne
* pcut faire.'

Then he estimated the nature of the offence,
by the consequences which follow the not
guarding of the seas, viz. 1. The losses already
shewed. 2. The prevention of trade, which
gives lite to the wealth of the kingdom. 3.
The weakening of the naval strength, the mer-
chants being thereby discouraged from building
ships, which they cannot use. In 1 Rich. 1>,
the commons opened the two chief and almost
whole causes of the weakening the kingdom at
that time ; the neglect of chivalry and eminent
virtue not regarded nor rewarded ; the decay
of trade since the navy was grown weak, he-
sides all the loss of quiet possession oi' so large
a territory as the seas of Kngland and Ireland,
by the free use of which, the ancient glory and
great ne>s of the crown of Eiuihiud hath so con-
stantly subsisted.

Then he instanced in Michael de la Pool,
Lord Chancellor, who in 0 Rich. 2, mis-spent
subsidies given ' pro salvo eustodi.i Maria/ as
appears in the Roll, and was adjudged in par-
Iium-jnt (though for other offences, because
some other lords of the council hath been
tru-U'.l wuli him, and it was not fit to impeach
linn suns /•■* vowpanions) the taking it for a
crime tuth'jut question lit to be complained of.

Secondly, in William duke of Suffolk, who
for the s. unc fault, being admiral only in the
rj^i.t of Henry earl of Exeter hi* ward, was by
the king extraordinarily commanded into banish-
num.

Then he brought examples of such who had
been put to death, and confiscated, for not safe-
guardine towns, and rattles, and forts, which
are of like nature wilh not safe-guarding the

The Fifth Article enlarged by Mr. Solden.

To the Fifth he said, The staying of tbe
Ship called the Peter of X en-haven, and de-
taining part of the goods, was against the mu-
rine laws of England, against the common laws,
against the laws of merchants, and co.isequenllj
tnc law of nations. By the Murine Laws,
agreeable to the civil laws, sentence given bj
any subject or other against the king, hut,
upon new proof, be revoked, but not withjct
new proof. He made, by his patent, a Judge
of all maritime causes, as well as Keeper of tile
Seas ; his jurisdiction was to be cxerc .*rf
' juxta leges nostras Civilcs ct Maritime a,' uiul
accordingly to liear all causes, and generally to
proceed * ex officio mero niixto et pioinoto' se-
* cundum leges nostras Civiles et Manama*.'
Agaiust the Common La us.

All justices, and all other deputed to do lav
or right, arc commanded by act of parliament
to permit the course of ordinary jus:itc; and
ultliough they be commanded to do the con-
trary, that they do execution aright, and ac-
cording to justice as fur as in them lies; and
so for any letters of commandment which nay
come unto them from us, or from any other, or
by any other cause.

Against the Law of Nations.

Against what is agreed by the Leagues be-
tween us and foieign nations, That the subjetti
of nations in amity with us, shall be well uked,
and permitted, without molestation, for what
cause or occasion soever, according to the lam
and customs of the places where they shall be.

Lastly, against the laws of Me; chants, which
is to have * (.'eltrein justitiam.'

The Const queue*, s of this ( )iTencc are,

1. (heat chuimge to our Lugh>h merchants,
that ha\e MiiVeied by reason of it in foreign
part>, as thev a Hedge. '2. It is a discourage*
incut to tho*c that arc subjects to the Marine
Jurisdiction. :l. An example that may sene
hereafter to justify all absolute authority in
the Admiral, without law or legal course, ont
the ship** and goods of all merchants whatso-
ever, and >o mf security to merc'.autj'. Lastly,
He instance:!) in the duke of SuiVoll', who was
najudi:cd in parliament tor treason; and among
other o!icii'ae4 it was hid to his charge, that
he took to his own u*e goods piratically taken,
and expressly against the order determined by
the Lord Protector and the whole council*
w hereunto his hand had betn for the rcstitutiuQ
of them.

Next were read the Sixth, Seventh, and
Kighth Article-*. These three Articles were
u^ravsiteil by Mr. (rlumile.

" My l.-.rd*," said he, " In this great bininrt
of Impcach:mnt against the duke of Hacking
ham, 1 am commanded bv the commons ui
parliament to hear u part of some importance.
The Articles allotted to my charge are I lure,
the Sixth, Seventh, and Eighth; which lihiul

1329] STATE TRIALS, 2C11. 1. I626.~the Earl of Bristol, and Lord Conway. [1S30
open with as much brevity and perspicuity as I covcry of the persons, ships or goods of any of

may : The substance of several cases concern-
ing the same ; the e\ idence to make them good,

hi!> unjesty's subject that had been formerly
iuy or near the East-Ind.e<», or for any other

together with such observations as naiurahy ! just cause of their defence, or recompence of
arise out of the inattcr ; whereby your lord- | losses sust.iinert ; That then the captains or
ships may the better di-eern whereii the duke's . pnr.cipal commanders of the said Company, or
faults do conbbt, and what punishment may be ' any t.iher under their government, 'hould or
answerable to suv-h offences. j miyhr. ut.empt, surprise, or i:«.ke the persons,

44 '1'he Sixth Article is a distinct charge, | »iiips, and goods of any. prince or st ite, by
different from the other two; wl.c.ef>re I will who.-e. subje; is they should sustain any wrong
handle it, wiih the imidento thereof, by itself, or 1 >ss" 111 manner as uioresuid, as by the said
The Seventh and Eighth Articb s being of oue j Icttcr*-pat'. nt> appejreth : Some vcais after the
nature and subject, are indeed s-vcral parts of1 g.'aiitm;; of tin 3e Jeiters-patmis, under pretext
One charge, rather than several charges, and | that the said Treaty wa> broken, there *vas
have such a connection in themselves, that, ! some interruption jind violence offered bv the
with your lordships leaves, 1 will handle them ; king of Spam\ subject;* 1:1 the puns of Easl-
both together without dividing them, which 1 ! India to it.e merchant;* of the East-India Com-
hold will be the shortest and fittest way to do pany trading into ti.o-e parts, whereby they

right to the cause, and to your lordships.

" The Sixth Article giveth me occasion, my
Iord<*, thus to enlarge myself. In a Treaty the

were much daiimifn d ; mid thereupon suspect-
ing that it might be in vain to cumplaiu for r<-
drcss in an ordinary course of justice in the

18th of August 1004, between our late sovc- ' East-India, or in default thercol 10 return into
reign king J.hbcs of glorious memory, and Philip | Spain to n.ako complaint to that purpose, where
3, king of Spain, it was agreed, That there nothin^'w;^ likely to he di,ne till they had sent
should be perfect amity and peace to endure I from thence again into the East-Indies, and re-
forever by land, sea, and fresh-waters, between J ceiied an answer; and after all this, upon
these kings, their heirs and successor.-, their j denial of jur-tice in Spain, to come into this
dominions, liege-men and subjects, then being, kingdom for letteis of request, without which
or which siiould be; And that either parry j in ordinary course they should not u*e reprisal,
should then alter abstain from all depredations, j and many years would be spent before tl.ey
offences and spoils, by sea, laud, and fresh- could come to have an end of their suits ; It is
waters, in what dominions or government soever . true, that thereupon, partly in their defence, nnd
of the other, and should cause restitution to be . partly for amends, and parti v for reienee, they

I a" III I* 1*1 1 J* I * l 1* 1*1 "It* 1

made of all depredations which then after
should be committed, and the damages grow*
ing by means thereof; and that the said kings
shall take care that their subjects should front
thence abstain from all force and wrong doin?,
nnd that they likewise should revoke all commis-
sions and lettc is-patents of reprisal or mart, or
otht rwise, containing licence to take prizes; all
which are declared by the said Treaty itself to
be 1 oid, and thnt whosoever should do any tlung
contrary should be | ui.i.-hcJ not only criminally,
according to the merit of his offence, 1 tit shonld
also be compelled to make restitution and
satisfaction f-r the losses to the parties damni-
fied, requiring the same. Easily, it was con-
cluded, That between them and everv of their
subjects might be free con in ere e in all the

did by pretext of the said lettecs-p tents ti.ke
some goods of the IVrtrgals in the East-Indies,
subjects to the kh.g of Spain; and stftenvr.rt's
being commanded l»v the kins of Persia to
transport certain forces of his in Onnus, r.n
ish-.nd situate in the count rv of IVr»ia, some
poods of PortugaK .subjects to the kins of fyniu
were these taken ly enptniu Ihilh and captain
*.Ved( II, and others of their Company, bnng
tenants and in pay under the Eii"t- India Com-
pany.

"In July 1G25, two shi;-s called the Lyon,
and the Jonas, being part of a. licet belonging
to the said Company, returned from Onnus
nfnrcfhid out (if an Er.^t-lndiun voyage, and
arrived i.i the Downs richly laden with goods
and merchandise lawfully belonging to the

dominions by sea, land, and fresh-waters, in 1 said Company, and estimated to the value of

which before {he wars, there hath been com-
merce, and according to the use nnd observance
of the ancient leagues and treatic before the
wars, the customs as they were at that present
rated according to the ordinance of the places
being paid.

100,000/. The duke of Euckingham, in or
about Oct. 10*21?, being advertised thereof, well
knowing \\ic Company to be rich, and appiv-
hendiug in himself a probable ground how he
mi-ht exact and extort sonic great sum of mom y
from the said Company out of the profit of th«se

" This Treaty being settled and continuing, ' ships and ihcir h.ding, by colour of his office of
his late majesty king James by his highness! Lord Adin! al of England, and out of hi« power
letters patents bearing date the 14th of Sept. ! and great m~s, hi* othec bi ing used fora pmund-

an. 13, of his reign, did grant unto the go-
vernors of the merchants of London trading
into the East-Indies, and to their successors,
in case they be justly provoked or driven there-
unto, in defence of their persons, goods or
ships, by any disturbance or hinderauce in their
quiet course of trade, or for recompence or re- of Lord Great Admiral of England, 1
TOL. 11. 4 Q

work of hi" di-i^n therein, did thereupon pre-
tend, that the lading of the said ships was for
the most pan with goods piratically taken at
sea in the parts ah-iut Onnus aforesaid, and that
a tenth pnrt, or some other great share thereof.
did belong to him in the ri'iht of his smir1

1331] STATE TRIALS, 2 Ch. I. 1626.— Impeachment <tf the D. of Buckingham, [13S3

virtue of his letters-patents and grant from his
late majesty iu that behalf; alledging withal,

i Ji :j fi „ :_i .. i.. _

howsoever the said Company might perad ven-
ture answer the matter, yet there would and
wight be stion*; opposition against them. These
words were used to possess them with fear, nud
to make them stand in awe of his power, when
he should come afterwards particularly to press
them to yield to his unjust demands. Having
once resolved of his ends, which was to get
money, he thus proceeded to effect the same.
In the mouths of Nov. Dec. Jan. and Feb.
then next following, he had divers times trea-
ties by himself and his agents witli the then
governor and'others of the said Company, for
the effecting of his said designs; wherein he
still unlawfully pretended that a tenth part, or
toiue other great share, out of the lading of die
saiil ships, belonged unto him; albeit the said
Company upon nuht information of their cause
to their council, both civilians and cotmuou-
lawycrs, were advised that there did no tent lis
or other such shares belong to the said duke,
as he pretended.

" And whereas tho said duke by this time
finding that he could not prevail to get his ends
by any fair course, continued yet resolute to
make his gain upon the Company by riyht or
wrung, as he might ; and to that purpose made
use of the t\ dlowing opportunities and advan-
tages; in such cunning and abusive manner as
I shall further open to your lordships. The
said duke well knowing that the said Company
had then four ships, called the Great Janirs,
the Jonas, the Kar, and the Eagle, and two
pinnaces called the Spy and the Scour, the said
ships and pinnaces, with their victuals, store
find ordnance, were of the value of 54,000/.
and mure, laden with lead, cloth, and other
inerchai>di>e in them to the value of 20,000/.
and more, and having in them also about
30,000/. in rials of Spanish money; in all,
100,000/. and more.

•* The*e ships and pinnaces were well near
ready to set sail for a voyage into the East-In-
difs by ihe first day of March, in the 21st year
of his said late majesty's reign ; and he well-
knowing how great a hindrance it would be to
the said Company, if the said ships and pinnaces
should be stayed for any long time, the rather
in regard if they did uot set sail about that
time of the year, or within twenty days after,
they had utterly lost their voyage for that year;
the reason whereof dependeth upon a secret of
winds, called t!:e Munsounds, which are con-
stantly six months easterly, and six mom lis
westerly, every year at their set times, in those
parts of Africa, about the Cape of Bona Spe-
rauza ; (for of those wind*, all ships going
hence into the East-Indies, are to make their
use, in the ustmi and due time ; which yet can-
nut be done, if men take not their opportunity
by coming to the Cape in their proper and due
season, and in so Ling and dangerous a voyage,
wherein the Equinoctial Lino is twice to be
passed, it is no £ood discretion to stay the ut-
most time in going from hence, in confidence

of fair winds, but rather to take time enough
before-hand, for fear of the contrary : Nor can
the lord admiral of England, who is euttot ma-
' rium domini regis, and hath jurisdiction of ail
\ foreign parts, super altttm mart, be admitted
| to pre tod himself ignorant of this secret, or
of any other particulars belonging to the seas
and voyages.; The duke therefore apprehend-
ing, ahd well weighing how great a hindrance,
or rather uliat an absolute loss it would be to
the Company, if these their ships and pinuaces
of so great value, and bound forth in so instant
and difficult a voyage, should be stayed for any
long time, now they were ready to set sail, and
the season of going upon point to expire : The
said duke upon the said first day of March,
1623, to effect his designs uuon the said Com-
pany, and to get that by circumvention and
surprisal, which in a legal and due course of
justice he had not hopes to obtain : Not think-
ing it sufficient, that the sense of his displeasure
lying over the Company as an ominous clood
threatening a storm, if they did not appease
him by some grtat sacrifice ; and to cast tbeia
yet further into a farther strait, not sparing to
abuse \ our lordships in parliament, by making
you unwilling instruments to give colour and
advantage to his secret and unlawful practices.
Upon the said first day of March, he put yoor
lordships, sitting in parliament, in mind, touch-
ing the great business likely to ensue upon dis-
solution of the then treaties with Sp;uu, sod
that a speedy resolution thereof was necessari-
ly required, for that the enemy would pretermit
no time ; and if we should lose the benefit of
that spring, he said it would be irrevocable;
and thereupon he took occasion to move that
house, whether he should make stay of anv
shipping that were then in the ports, as Icinc
high admiral he might, and namely, tlie Slid
ships prepared for the Ea^t-Indian voyage,
which were of great burthen, well furnL-hed,
and lit to guard our own coasts : Which inotiuo
was generally approved of the whole house,
knowing nothing of the duke's secret designs
and private intentions. And the same day s
motion was made amongst the commons in
parliament to the same clTcct, by sir Edward
Seymour, kt. the vice-admiral to the duke of
the county of Devon ; which in respect of uV
time when, and person by whom it was pro-
pounded, is very suspicious, that it issued all
from one spirit, and that he was set on by the
duke, or some of his agents ; the truth wherecf,
your lordships may be pleased to search out
and examine as you shall see cause. By colour
of this Order of the lords house of parliament,
the duke caused John Pcxal mar-hal of if*
Admiralty, to make stay to be made of tl*
said ships and pinnaces ; liowbeit notwithstand-
ing all die occasion pretended for t!.c defc: ^
of the realm, there were not any other ship
staid at this time.

" The Company perceiving, by the coursi
of things, from whence these e\ ils moved, upon
the 5th of March, 1623, 1 ecu me earnest suiwn
to the said duke for a reU^ement of their said

1333] STATE TRIALS, 2 Cii. I. 1620.— the Earl of Bristol, and Lord Convoy. [1334

*hips and pinnaces; whcreunto the said duke
replied, That he had not been the cause of
their stay : hut having heard the motion in the
lord* house, l>e Could do no less than order a*
they harl done : Yet tu attain his ends, and put
th« m in some hope of favour by his means ; he
told thrui with d, '1 hat he had something in his
pork* t might dj t!icm good, and willed them
to set d^wn what reasons they would for their
iujr, and he would acquaint the house there-
with : Nevertheless about this time he pre-
sumed of himself at Theobalds to give leave
lor the ships and pinnaces to fall down us fur
as Tilbury, there to Attend such further direc-
tions a« should be given unto them, with leave
so to signify hy word of mouth to the serjeant
of the Admiralty, for that the duke had then
no secretary with him. Thus some while by
threatening of strong oppositions and terrors,
and otherwhiic by intimating hopes of favour,
and good assistance, die duke sought to accom-
plish Jus purpose, yet prevailed not ; and so
the 10th of March, 1623, the king's advocate
Dr. Reeves, advocate for the king and lord-
ndmiral, made allegation in the Admiralty on
the duke's behalf; and by his procurements-,
that it appeared by examinations there taken,
that 13,000/. and more, piratically taken bv
the said Captain Blith and Wedel, and their
complices, upon the sea near Onnus, and in
other parts within the jurisdictions of the Ad-
miralty, was come into the possession of the
treasure) s of the East-India Company, and re-
mained in their hands, and prayed it* might be
att'iched ; and the buid treasurers be moni*hed
to appear the Wednesday then next following,
and there to bring in the 15,000/. to remain in
deposit with the register of that court.

" The same 10th of March, a Warrant issu-
ed forth accordingly directed to the marshal of
the said court ; and upon the same next Wed-
nesday, the 17th of March, the said warrant
was returned by the said marshal, that the day
before he had attached the said monies in the
bands of Mr. Stone, then picsent in the court,
and had admonished him, and Mr. Abbot, the
deputy-governor of that Company, and divers
Others then present, to bring the same into
court. Upon the same Wednesday also, it
tvas prayed by the king's advocate, That Mr.
Stone, and all that had an interest in this
money, might be pronounced as iu contumacy,
.and therefore be arrested and detained until
' 16,000/. were brought into the register.
Hereupon sentence of contumacy was pro-
nounced, but the pay me nt thereof wa« respited
until Friday : olio wine. Upon which 17th of
March, this sentence being pronounced. Mr.
Stone, Mr. Abdv, and others, officers of the
laid Company, then present, informfd how the
Governor w?i* lately dead, and hmied but (he
day I* tire ; and ih:it upon Wednesday thin
next following, they had appointed a Court for
Selection of a new Governor, and until then they
could resolve of nothir.x, and therefore desired
farther respite. The Advocate nothing relent-
ing at this reasonable excuse, and desire of the

' Company, did again earnestly pre«s their im-
; prisoumcnU, but the judge took time to con-:-
• der of it. The Company finding by the*e cx-^
traordinary and extreme cotuses, the drift of
1 the duke, whose greatness and power seemed
I unrentable, and his mind implacable, without
j satisfaction to his own content, and withal ob-
; serving what a strait they were cast into, by
reason of the stay of their ships ; which, if it
were much longer, they must needs lose their
voyage utterly for this year, and the very un-
loading of them would endamage them to the
value of the sum extorted : And being told,
that the eye of the state was upon this business,
and that it would light heavy upon them ; and
hearing the duke protest, their ships should not
go, unless they compounded with him; and
finding that he made difficulty of releasing their
ships, by saving, The parliament must be mov-
ed, before they could be discharged, albeit the
wind were now fair for them. And making
overture of some reasonable grounds of compo-
sition, by offering to grant letters of mart to the
said Company for the future, against the sub-
jects of the king of Spain; wh.le ytt the peace
and treaty between his lare majesty and the
king of Spam, were not broken or dissolved.

" The said Company being intangh d by the
duke's ?ubtilty, and overcome at last by the ter-
ror of his power and greatness, was p'rawn to
make oiler of 6,000/. to the said duke, which
was rejected as a base offer. And now the
time pressing them on very hard, some consul-
tations were had amonpst them, Whether ic
were better for them to make use of a clause in
their pntcnt, allowing them three years to draw
home their estates, nndso to let their Company
die, and be dissolved, or else to yield to the
duke's desire : yet in conclusion, they were
drawn in to offer him 10,000/. for their peace,
if it could serve; which offer was made unto
him accordingly, but nt first he would not accept
it ; howbeit, about the 23rd of March, 1023,
they agreed to give him the said 10,000/. which
! he accepted ; and forthwith moting the lords of
, parlinment, or acquainting them therewith, he
I retracted their ships, and gave tbem leave to
j depart on their voyage; which they accordingly
, did, setting sail the 27th day of the same month
] from the Downs. And aftciward- upon the 5th
I of April, 105-1, the duke signified unto the lords
•house of parliament, Thai his majesty, at the
| humble petition of the E;;>t India Company,
j had commanded him to discharge the Ea?t
\ India ships, which he had once stayed, accord*
j ing to the order of this house, made the 1st day
| of March then hut past; and moved, That the
: said order might he countermanded : and there-
1 upon it was ordered, That the clerk of that
I Iioihp should cross the said order of the 1st of
! March out of his book, winch was done accord-
ingly ; aud afterwards the said 10,000/. was
| paid un'o the said dtue; which he received
i and accepter! accordingly. And upon the 28th
, day of April aforesaid, suffered a colourable*
1 sentence iu the Admiralty to he given against
him for their discharge, iu such sort, at by ,K"

I335J STATE TRIALS, 2Ch. I. 1626 Impeachment of the D. of Buckingham, [13»

tame sentence appeareth. And fi>r a colour,
He sealed and deiiveied unto the said Company,
a d'.-ed of acquittance or release of the said
10,000/. and of all his pretended rights against
them, as by the deed thereof also appeareth.
And whereas it may be ima.ined by some mis-
conceit, that out of this an aspersion may be
laid upon bis late majesty, in regaul the duke
tvas pleased to say in the conference between
both houses, 18 March Inst, That tie said
king had 10,00*0/. of the said Company, by oc-
casion of tins business. The house of com-
mons have been very careful in their proceed-
ings iTi this, as in all other things they have, and
ever shall be, to do nothing which may reflect
upon the honour of their kings : and in this
particular, by that which hath been here at fust
declared of the manner and occasion of the said
goods and monies taken from the said Portu-
gal, and receiving the same us aforesaid, while
the said peace was continuing, and the niirl
treaties iudisso!ved ; it appeareth, that it had
not been safe for the said Company to -brand out
a suit concerning that business u herein they
might have need of his majesty's mercy and
pardon, but it was both safe and pood for them
to give 10,000/. ; and it well stood with his
late majesty's honour, for that sum to grant
then a pardon, which he did, to thc;r gieut con-
tentment and satisfaction ; and yd we find,
that this 10,000/. alto was paid into t!;o h-inds
of Mr. Oliver, the duke's sonant, but find not
■ny record, by which it doth appear unto u>,
that ever it (Mine unto his late majesty's lire.
And it is obsi rvahlc in this cis>e, that the op-
pression fell upon the same Company shortly
niter the great affliction which happened unto
some of them at Amhoyua in the East Indie**.
by means of the Dutch, w hith iiiiuht have moi eit
a noble mind, rather to pity than puc.is'i the
Company, after such a distress so h.teiy si.'V. red.
" Having uow tinisl e:l the narrative nan be-
longing to thU Charge, I shall observe unto your
lordships upon the whole matter, ti.e nature of
the duke's offences by this Article compLincd
of, and what punishment it urw rievne. His

nity. It remains therefore, that I should prove
unto your lordships only two things: first, that
a pretence of rij'ht by the duke, if lie had nune,
will not excuse him in tins case ; and in the
next place, to shew by reason and good war-
rant, that he had in law no right at all to release.

u For the former, I will rely upon the sub-
stance of two notable precedents of Judgments
in parliament, the one anticut in the 10 Rich.
2, at which time the commons preferred divert
Articles unto the lords in parliament, against
Michael de la Pool, eail of Suffolk, lord chao-
eel lor of England,* accusing him, amongst other
things, by the first Article of his Charge, That
while he was Lord Chancellor, he had refused
to give livery to the chid' master of St. Aniho-
ny's, of .the profit pertaining to that order, uH
he had security from them, with sureties by re-
cognisance of 3,000/. for the payment of 100/.
per aun. to the earl, acd to John his son, for
their lives. The carl, by way of Answer, set
forth a pretended title in his son, to the chief
mastership of that order, and that he took that
100/. per ann. as a composition for his sou's
right. The commons replied, shewing amoocst
oti.cr things, That the taking of money fortha:
which should have been done freely, was a sell-
ing of the k«-, and so prayed judgment, la
conclusion, the pretended right of his son not
being just or approved, the offeace remained
single by itself a sale of law and justice, as the
law termeth k, and not a composition tor the
relc ase of bis interest. So the earl for this,
amount the rest, was sentenced, and greatly
piv.iivhcd, as by the Records appeareth.

'* The other precedent of like nature, is mom
modern, in the Case of the earl of Middles**,
Lite lord Treasurer of England, \ who ws*
charged by the commons in parliament, aiul
transmitted to your lordships for taking of 500/.
of the Tunners of the Great Customs, as a
Bribe, for allowing of that security for pay-
ment of their rent to the lare king's majesty,
which, without such reward of 500/. he iisd
formerly refused to allow of. Ihe eail pre-
tended for himself, That bo had n«»t only

default consi^eth in the ui:;u-i exti-rtir.2 and ; that 500/. but 500/. more, in all 1,000/. of
receiving the 10,000/. from tlu r>.«>t in-haCom- • tho-e farmer??, for a release of his claim, la
pany against their will-,, l«y cohr:r of his unicc. f.Mir of two and thirty pait» of that farm : bnt,
lit, as olleti Jer-v in this kind have comm-nly u; en the proof, it appearing to your lordships,
some-colour to di^gni^e and mask their cornio- that he had nut am such part of that farm as
tions, so h-d he : his colour wns th.- release of ! le pretended, it was on the thirteenth da? «1
his pretended rii'ht to the tenth parr, or some j .May, in the 22d year of his lute majesty's rfigi,
Other share of the cood«, ««uppi>-:e.: to be pirati- ' arijudged by your lordships in parliament,
callv taken at sea bv the ruutain, and th«- ser- I which I think is vet fresh in vonr memories,
vaut«,or the Company: and tiiough bis lordship i That the earl for this «mong>t otlnr thinj*,
may peih j^s call liis act tiurein, u lawful com- ' should undergo mauv ^ne*ous censures, as tp*
position, f must erne pardon of your 1 nd^hips [ peareth by the n cords of your lord»hips houst^
to sav thus, that it his supposed ri«.'hf had been ! which I hiive latelv sreu and r>rru*ed.
^ood, this mi^lit pevadxeuturc hati1 bc;ii a fair I ''And now being to prove, that the said
composition: tIios.iir.epi?tuicebein; uv^mi-d, ! Duke had no title to any oart of the cood»t»*

and falling away, it v. as a mere naked bribe,
and an unj:*\t extortion ; tor if way should be
given to take money by colour of releases of
pretended ii<;! -t*, men, great in power and in
evil, would never want means to extoit upon
the fae*ner sort at ihcir pleasures, with impu-

I im cl. in cd against the i'a*t-Iudia coinptaji
1 shall easily make it iv-u»it\>t, if his lordship*!
pretence by bis own allegation in the admiralty

* See vol. 1, p. fi9.

t S<* p. 1183 of this volume.

1337] STATE TRIALS, 2Ch. I. 1620.— the Earl of Bristol, and Lord Contsay. [1338

were true, That the good?, whereof he claims
his kharo, were piratically t.d;en. From which
Allegation, as he may not now recede, so it is
clear by reason and authority, That of such
goods, no part <>r slnre « hatsovver is due to
the Lord Admiral, in right of his office, or
othenvays.

" For that the parties from whom the same
were takeu, ought to have restitution, demand-
ing it in due and reasonable time ; and it were
no injury to the intercourse and law of na-
tions, ir the contrary should be any way tole-
rated.

" 2. By law ; so are the statutes of this
kingdom, and more especially in 27 Edw. 9,
13. whereby it was provided, That if any mer-
chant, privy or stranger, be robbed of his
goods upon the sen, and the same came after-
wards into this realm, the owner shall be re-
ceived to prove such goods to be hi*, and upon
proof thereof, fchall have the same restored to
him a^ain.

4< Likewise 1, 2, 3 Edw. C, 18, in the act of
parliament, touching sir Thomas Seymour,
great admiral of England,* who therein
amount divers other thing"*, is charged with
this, That he had taken to his own use goods
piratically taken against the law, whereby he
moved almost all Christian princes to conceive
a grudge and displeasure, and by open war
to seek remedy by their own hands : and there-
fore for this amongst other things, he was at-
tainted of High Treason, as appearcth by th*t
act, wherein the law is so declared to be its be-
fore 19 expressed.

" But if it should be admitted, tint the Duke
bad right in this case, fur which lie might com-
pound ; yet the man nor of his seeking to trv
and recover his ri^ht, is, in itself, an high of-
fence, and clearly unlawful iu many rejects,
whereof I will touch but a few : as, in uinkiug
the mo»t honourable house of parliament an
instrument to effect hit private ends for his
profit: in proceedings to a nest and Hay the
ships of men not apt to fly, but well able to

" Your lordthipi may have ob«erved, how in
handling the former Articles, I have in rar
dKcour-.e used the method of time, which I
hold to be best for the discovery of the truth r
I shall therefore by your lordships patience,
whereof now I have had some good experience,
use the like order in my enlargement upon
ihe*<e latter Articles; touching which, that
which I have to any, is thus:

4< In or about the 29d year of the reign of*
our lute dear sovereign lord, king James, of
famous memory, there being then a treaty be-
tween our said late sovereign and the French
king, for a Marriage to be had between our
then most noble prince now our most
gracious king, and the French king's sister,
now our queen, and for entering into an
active war against the king of Spain, and hi*
allies in Italy, and the Valtoline. Our said
late sovereign passed some promise to the
French king's ambassador here, the marquis
D'Etnat, for procuring, or lending some ships
to be employed by the French in that service,
upon reasonable conditions ; but without
thought or intent tlr.it they should be employed
against the llochellers, or uny others of our
religion in France : for it was pretended by
the French kind's ministers to our king, That
the said ships should be employed particularly
against Genoua, and not otherwise. But af-
terwards some matter of suspicion breaking
forth from those of our religion in France, that
the d( sign for Italy was but the pretence tn
make a body of an army fail upon the ItoclieU
lir?, or other of our religion in that kingdom;
the kinv grew so cautious in his conditions,
that as he would perforin his promise to lend
his ship*, so to preserve those of our 'religion*
he contracted or gave directions, that the
greatest part of the men in the same ships
should l<* English, whereby the power of them
should be ever in his hands.

" And the duke of Buckingham, then, and
yet, lord great admiral of England, well knowing
all this to be true, pretended he was and would

answer and satisfy any just suits which he l.c very cireful, and proceed with art, to keep*
ini^ht have against them though their thips had | the *»aid ships in the hand* of our king, and
cone on in their voyage : in prosecuting things upon our iv.u coast', and yet nevertheless un-

to unseasonably, and uiging them so extremely
by his advocate, for bringing in of so great a
turn of money upon the biiddeu, ami form .illy
under colour of justice and service for the
•tate : in reducing that Company into that

• ftrait end necessity, that it was as good tor
them to compound, though the duke had no
title, as to defend their own just ri^ht against
bun upon these disadvantages, winch by hU
power and industry he had put upon the in."

Then he read the Seventh and Eighth Arti-

-des, which he handled jointly, as being not

two Charges, hut two several parts of one and

• the same Charge ; and when he hid read them,
he went on speaking further to their lordship*,
M followeth :

^w**

* $ee vyh 1. p. 483.

dcrhand he unduly intended, practised and en-
deavoured the contrary : for afterwards by hik
direction or procurement, in or about the* V2i\
year aforesaid, a ship of his mujeVy's called tin-
Vnnrguard, being of his majesty's royal navy,
was allotted and appointed to he made ready
for the service of the French king, and seven
other merchants ships of great burthen and
strength belonging to several persons, natural
subjects of our y,\i'd late sovereign lord, were
by the duke** direction impressed as for the
service of his said late majesty, and willed to
make thcmseivis ready uccordiugly. Ti.e
names and tunnugc of the said seven merchant
ships were as followeth. 1 . The Great N eptune,
whereof fir Fcrdinando Gorge was captaiu.
9. The Industry, of the burden of 450 lun«,
whereof J nines Mover was captain. '*
Pearl, of which Anthony Tench we*.*

•pi

1339] STATE TRIALS, 2 Ch. I. 1626.— Impcackment tf the D. qf Buckingham, [1340

4. The Marigold of 300 tuns, Thomas Davics ,
captain. 5. The Loyalty, of 300 tuns, Jasper ;
Dare captain. 6. 1 In' Peter and John, of 350
tuns, John Dawes captain. 7. The Gut of
God, of 300 tuns, Henry Leu en captain.

" Also abou» the same time a contract was '
made l>v and heiwe. u sir John C'o«»k, and;
other the t ommisbioners of his inajcbtx* navy,
as in behalf of his tnuji »ty for his snid ship tne
Vantguuid, and on hi h dt of the* captains, mas-
ter*, and owners of the said seven merchants
ships, but without their privity or direction,
for the service of the French king, upon con-
ditions to be safe and reason die tor our king,
this j calm and bti'c; as also for the said cup-
taius, masters, and owners of the said seven
merchants ships,, and for the cnmpnnits. For
air Jonn Cook, drew the Instructions, fjr the
direction of the said contract; which Instruc-
tions paired and were alio-.ved by the kin^, and
such of the council, as were made acquainted
therewith, and Usui in this biMiiess, in ^ Inch
Instructions, as sir John C.'oiL hath since al-
ledged in the house of comumns, there was
core taken for provision to be made, that the
said ship of hi:> majvsty called the Vantgu od,
should not serve against the ciiy or inhabitants
of Kochel, or th.ise of the religion in France;
nor take into her more men of the French, than
she could from time to tpnr be well able to
command und master. But whether the in-
structions lor tie merchants ships, and the
king's said ship, were all one, is not yet de-
clared unto i he commons; howbtit, it appear-
cth not, but that the intent of our king and
state was, to he alike careful for both. Never-
theless a form of aiticle*, dated the Qolh day
of March, in the &Jd year of his s od late inn-
jcbty'b reu>u, wus prepared, ii. grossed, and
made ready to be sealed, without the know-
ledge of the captains, master, and owners of
the said merchants ships, between the said
marqui* D'Ktfuit the amUis-.idur, on the one
part, and the several owners of the said mer-
chants ships respectively, on the other ; viz. A
Mcveral \\ riting or- Instrument for evc:y of the
said ships respectively, whereby aumngst other
things, as by the same appeared), it was cove-
nanted and agreed by, ami on the pait and be-
half of the owners, to and with the said mar-
quis D'Ktliat, to this effect, namely,

** 1. * Tliat their said ships respectively, with

* a certain number of men for every of them

* limited, with ordnance, munition, and oti.er

* necessaries, -should be readv for the Fiench

* kin^V service the lbt i of April then ne\t lul-

* lowim;. tf. Thai they shunld go in tlr.it mv-
4 vice under a French general, to he a* captain

* in every of the said merchants ship.* respec-
tively ; of the app'dutuuiii ol t;.e Friuch

* kiriL, or his amh.v^udor. i>. Tir.it thev should
*semj the French king ag-ii:i*t any whomso-
' evtr, but the king of Great Rriuin. 4. 'J hat

* they should take in us manv s-.id'trs into

* their said several ships as they o»u!d stOA or
' carry, besides their victual and npparel. 5.
'- That they should continue six months or loug-

' er, in the sen-ice, so that the whole time did
1 not exceed 13 months. 6. That they should
' permit the Freach to have the ab-oiute com-
' mand of their ship*, for fights and voyages.'

" And it wav amongst the said Article-, be-
sides other things, cvei-antcd and agreed by
the said marquis D' Fliiat; a*, for and on t->e
behalf of the French king, to this, ed'et l, baiiidy,
1. * That there shou'd be paid to every o».uer
1 a month's freight in haiid, after the rate
' agreed on ; and freight for two n ontljS nwn
' after the same rate, within fifteen da^'s after
4 the date o! the Articles ; the computation of
' the months, to begin from the 28th of March.
* 2. And that ihe ships should be ready iu. s
' certain form pubcibed at the end of the
' service.'

" When all things were in a readiness for
circumvention nui burprisal, the owner-, cap-
tains, find uiastcis of the said ships, then, and
not bf fore, they were suddenly pressed to seal
ihe counterparts of the prepared Articles; sod
they were about th« same time released and
discharged from tha imprest of Lis majesty's
service, and acquainted and designed to sent
the French king, the said three months pay be-
ing offered, and afterwards paid unto thm
before- hand, as a bait to draw on and intangfc
them in the business. Nevertheless, t lie cap-
tains and owners of the said merchants ships
d ubted upon some points, (to wit) first, against
whom they should be employed. Secondly
What foreign power they should be bound Iv
take into th"ir ships. And thirdly, What suffi-
cient security they should have lor that freight,
and re-delivery of their ships.

'» But there were private Instructions eircs
to capt. John Pennington, captain of the king's
ship the Vantguard ; as for him and the whole
tlect, that he should observe the iirst Instruc-
tions, to wit, not to serve against those ol the
religion, and to take into his* *hip no more
French-men than they could master. The pre-
tence »f Gcnoua, aii'i thc>e private instrument*
for Pennington, were but a further artifice at"
the duke's to draw the ships into France, sod
to conceal the i rcaking ioiuiof the matter here
in Euglnud : and the more to endear them,
and confirm them in an opinion of right inten-
tinu, thev were commanded to conceal these
private Instructions, as if the duke and ha
agents had trusted them more than they did the
ambassadors : by the>c ai d other like cunaug
and undue proceedings of the said duke, the
said marquis D* Ktlial sealed one part, nud the
owner* of the s iid merchants ships respectively
scaled ihe o;her parts of the said pretended '
articles, trusting they should not he b •uiul t*1
the strict performance thereof, by iiMsnn of
the said p.ivute Instructions to ihe contrary.
After the pacing of these articles, the said tnif*
be mi: formerly ready, the said duke Ma> $<,
lu(2o, made a warrant under the great h^,
to call the companies aboard which tiad I era (
raited ami litted for the said French yerrwe,
according to former instructions, und wiih ant J
opportunity to go to such port as the Frcacb

1341] STATE TRIALS, 2 Cn. I. 1626— the Earl of Bristol, and Lord Cbnway. [\3&

ambassador should direct, &c. there to expert
direction-, of rlir puny ili'it should be udiniral
of' the "-aid lUet, 4r> pri pared, with u requiry
of all ollirefs in h - i>ssis*unt hereunto.

" .All things being now in readiness, capt.
Pennington hem:; admiral of this whole Fleet,
in May 1625, went with the king's said ship
(lie Vuntgnard, and the siven merchants ships
aibrcsn'd, to l)u-p in France; there instantly
the duke ot" Momorancv, admiral of France,
would have put 200 French soldiers aboard the
ship calh d ilie Industry, being no more men
than «.: e c-uld slow, hut a far greater propor-
tion of men tnan her proper company was able
to coinuiand or mister; and offered also to do
the like to every one ot' the said ships, telling
the said opt. Wniiinnton, and other the said
Kngii-li captain*, jind owntr>, and their compa-
nies, in direct terms, that they were to go, and
*hi>'.ild 1:0 to »-<Tve against tU* city and inhabi-
tant ot" Roelwi, and tig-dnsi tlio.se of our reli-
gion: w heri'i.nto they all shening themselves
unwilling, there weie cha:n* of gold and other
rcuaids offered unto some id* the captains,
inaMcrs,nnd owners, to induce them: all which
they utterly n fused, j mrcsting unanimously
ag unst ih«> design, and would not lake in above
a lit numhcrofinen, sueh as they might be able
to command.

" Abo the company of the kind's ship did
there inform capt. Pi niiinuton of this oxerture
made to g* against Rochel, and exhibited a
petition to him against the Same, subscribing
their names to the pttition in a circle or com-
pass, that ii might not appear who was the be-
ginner of the same, and then they laid it under
his prayer-book, where he found and read it.
Whereupon capt. Pennington and the rest con-
eultcd more seriously of the matter, and by a
general assent returned all back to the Downs,
where (hey arrived about the end of June, or
beginning of July 1623. From I hence capt.
Pennington sent a letter to the duke of Buck-
ingham by one Ingram, with the said petition,
and employed him to heroine a suitor to get a
discharge from serving against Rochel : Ingram
delivered the letter to the duke, and saw him
rend it together with the said petition : whereby,
its by other former and later means, he had full
notice of the design, and intent of the French
to go against the Hochellers : James Mnyer
also about the same time came to the court,
and had conference with my lord Conway and
sir John Cook, (now secretary) acquainting
them what hud passed at Diep, praying them
to acquaint the duke, which they did, and the
duke delivered the said letter and petition to
sir John Cook. The duke of Chevereux and
M. de Villocleer hein« now come into England,
as extraordinary ambassadors from the French
king, they and the said marquis D* Efliat, more
especially TV Krfiat, solicited and got a letter
from the lord Conway by the duke's means,
dated July 10, 1625, directed to capt. Penning-
ton, wlierehy he took upon him to express and
signify his majesty's pleasure to be, that his
majesty had left the command of the ships to

the French king, and that now capt. Penning-
ton should receive ii to them so many men as
that king should plea»t for the time contracted,
and recommended his letter lo be as a sum"
cient warrant in that bcjulf. All this \> tile
the kin!! or body of the council were lifter
made acquainted witn any other design than
that of Genoa, nor heard any thing of the pas*
sages at Diep, n->r of the design of Rochel, nor
of our masters and companies petitions, infor-
mations <t complaints thereupon. This letter
of the lord Conway's was sent by Parker from
Hampton-Court unto Puiuington, bemg now
about the Downs, and was not lung alter deli-
vered into his hands. About this time M. de
la Touche, and others, as from the duke de
Rohan, and others of the Protestant party in
France, solicited our king and council against
the going of the ships, and had good words and
hopes from both, but from the duke the con-
trary, who told them, the king his master was
obliged, and so the ships must and should go.

'* The ships remained still in the Down?,
and afterwards, viz. about July 15, 1625, there
was a treaty at Rochester between the three
ambassadors extraordinary of France, and
James Moyer, and Anthony Touchin tor them-
selves and other English captains, and masters
of bhipc, &c.

" 1 he said Moyer and Touchin being by
message commanded to attend the duke of
Buck, at Rochester, for conclusion and settle-
ment to he had of this business, the said am-
bassadors did there proffer and offer to the said
Moyer and Touchin an Instrument in French
purporting thus, viz.

" 1. ' That I he said English captains and
' their companies should consent and promise
4 to serve the French king against all, none tx-
' cepted but the king of Great Britain, in con-
' fortuity of the contract formerly passed be-
' tween d* Eriiat and them. 2. That they
' should consent and agree, in considi ration of

* the assurance given them by the ambassadors,
' to the Articles of March 25, 1625, wheieby
' the French king should be made master of
' the said ships, by indifferent inventory ; that

* then they should by him be warranted against

* all hazards of sea -fit! hi, and if ; hey miscarried,
' then the value thereof to be paid by the
' French king, who would also con him this new
' proposition within fifteen da\s after the ships
' should be delivered to his u»e by good caution
1 iu London. 3. That it ihe French king would
' take any men out of the said ship*, he might,
1 but without any diminution of freight for or in
' respect theieof.*

J* The said James M»>ycr having gotten the
French instrument interpreted, answered, 1.
They would not go to sent against Rorhel ; 9.
nor send their ships without go«.-d warrant for
their going; and 3. not without sufficient secu-
rity to their liking for payment of their freight
and riddition of their ships, or the value thereof;
for the ambassadors security was by ihcm
taken not to be sufficient, and ihey proUttcd
against it, and utterly refused this peraf

1345) STATE TRIALS, 2 Cfl. I. 1<&6.--Impcachment of the D. qf£uckingha», [1344

instrument : here also sir John Epsly and sir
^Thomas Love dissuaded ihe duke from this
enterprise, ttlling hiui he could not justify nor
answer the delivery of the ships to the French.
" The lord duke being at Rochester, and
there acquainted with all these proceedings,
commanded the said Moycr and the rest before
these ambassadors, that they should obey the
lord Conway's Letter, and return to Diep to
serve the French, and that so was our king's
pleasure ; hembeit herein his majesty's pleasure
appeared not, but the contrary : yet privately,
at the same time the duke told them, that the
security offered, or formerly given by the am-
bassador, was insufficient, and that though they
went to Diep, yet they might and should there
keep their shins in their own power, till they
had made their own conditions to their own
liking. July 16, 1635, the duke of Chevereux,
and M. Villocleer, finding that they could not
accomplish their designs at Rochester, but they
must be fain to defer the getting thereof till the
coming of the ships back again to Diep, where
it was thought that better opportunity, and
more advantage for their ends would be had,
did, to that purpose, make and ordain the mar-
quis D* Effiat their deputy to contract with the
captains and masters of the English ships for
the French king's service, as effectually as them-
selves- might do, thereby transferring their
power in that behalf to the said D' Effiat, who
intended to go over to Diep forthwith about
this business. The duke of Buckingham having
thus the second time dealt with the captains
and masters to go to Diep, and armed and pre-
pared D' Effiat how and in what manner there
to circumvent them, sent over to Diep pri-
vately, and underhand, his secretary, Mr. Ed-
ward Nicholas, together with D' Effiat. Mr.
Nicholas at and before the goinv over, had
instructions from the duke by word, to see
the execution of the king's pleasure signified
by the letter from my lord Conway, and to
procure the captains and masters of the said
merchants ships, to deliver over their ships into
the hands of the French, upon the security
perafFetted at Rochester, by the three French
ambassadors, and by them delivered to the
duke of Buckingham, who committed the same
to the said Mr. Nicholas, as the security, which
in that behalf he was to take and accept. Mr.
Nicholas, according to those instructions, went
to Diep with D' Effiat, and was there very
urgent to get the ships delivered to the French,
according to the said instructions at their
coming over ro Diep : D' Effiat entered a suit
and protested against our captains and mas-
ters, and ti«eir original articles, the better to
enforce thun to perform the same, wiiHaut
respect to the duke's verbal pretences or alle-

fations made to the captain* and masters at
loc he>ter, and in other places formerly to the
contrary.

" The captains and masters came over again
to Diep about July 20, where they found them-
selves in a strait, by reason of the said protest
ttiere entered against than* tlit duke's instruc-

tions by word being too weak to exempt them
from ol taining their contract under their bauds
and seals; also Mr. Nichujps u>ing the king's
name with threatning words, was there vtrj
earnest from day to day, and very vebemc ntly
pressed them to deliver over thei. sh:pt, before
security given to their content, contrary to the
former proposition, ( vis. the lord duke's word
to them at Rochester) wluch they refusing to
yield unto, advertisement thereof was speedily
sent to the duke of Buckingham, and to ha
agents in England; and Mr. Nicholas coo*
tinucd still at Diep about hi* former negotiation.

" July 27, 1G25. SirFerdinandoGorge,Anth.
Touching, James Moyer, Hen. Lewen, Iho.
Davies, Jasp. Dard, and James Davies, as
owners and captains of the said seven English
ships hired for the French, did express in writ-
ing, that they held it fit they should not quit
their ships, till they had made their own reasouar
blc conditions, and were freed from the ques-
tions and troubles they were in ; and in parti-
cular,

V 1. They pray to be free of the said Protest,
that they might the better treat of their affairs.
2. If the French king woul.i have 'delivery of
their ships into his power and possession, that
when they might have security by money depo-
' sited in London, without revocation for satis-
faction of their ships, the former security by
merchants being insufficient, and a stop already
made of their pay, which, upon that security,
they know not how to come by. 3. Because
their ships, being fortresses ot this kingdom,
and the delivery of them over into the hands of
a foreign prince without good warrant, coo-
cerncth even their very lives, that thry might
have a warrant in that behalf under the great
seal of England, before they should be bound
to deliver them over. 4. To be free of their
bonds entered into for n«»t selling tl:eir ord-
nance, and also free of punishment in that be-
half; and thry shewed how they were more
cautious herein, for that commissioners drew the
first article?, which were now "holly broken,
and these articles were to be done by them-
selves.

" And this writing they sent from their ships
by one Mr. Basset Cole, to present on s-hore to
the marquis d'Effiat at Diep, appointed th*
said Mr. Cole to treat fur a fp^eay conclusoi
according to these articles; who treated ac-
cordingly : And the said marquis, to induce him
to yield to his demands, shewed a Utter is
French, signed by the duke of Buckingham,
whereby the duke promised his endeavours to
got the marquis's turn served touching these
ships.

" The next day, viz. 28 July, 1605, Mr.
Nicholas came aboard the Neptune, and de-
clared in writing under his hand, how and why
he was sent over by the duke of Buckingham,
as before, and craved the captain and master*!
answer in writing under their hands, whether
they would conform to the lord Conway's let-
ter, and to the instrument peraftetted at Ro»
t Chester, for the delivery over of the said ship^

1345] STATE TRIALS 2 Cn. Ir 162(5.— ///c Earl of Br&ol and Lord Cnrr.cay. [1346

| court at Richmond, '.'3 ."dy, when the dnchess
of Chcvercux's child ues there christened, and

yea or no, ofteritV! to procure them a sutlicient
di^rLir^ to their confer. uncut, lor their so
doing.

*• The >ume day nUo, sir Ferdiinndo Gorge,
and the rrsr, bv writim:, undvr tl.cir hands sub-
scribed, did declare us follow eth; namely,

" Tliat. they were wil!in«r to obey our kinjr,
' hut held not the security pernffctted at Rn-
' chester, hy tho throe ambassador*, to he snlli-
' cimr f though honourable; and so they abso-
c lately refused t<? deliver their ships upon that

* sennit v, de-inn;: better caution in that be-
' h-i'f. 1. I »v merchants of Paris, y* To he
i tran<fcired to London. f». Irrevocable. A,

* And sm !i ns miizht mt be protected by prr-
' rotative ; and to have this under the hands
' and «»cah of both kings.'

'• All tins while Mir king, or body of the
council, knew nothing in certain of any other
design of the French, than only of their pre-
tence against Genoa, and believed, that all the
Articles and instruments that had. passed be-
tween the Fror.ch and us, or 'he captains, mas-
ters, and owners of the Enulith ships, had been
penned and contrived with full and good cau-
tions accordingly, for prevention of all dangers
that nitt*ht grow t> the contrary. Also the
lame <>H July, the captains and makers taking
notice of Mr. NichoKs pressing them to deliver
their ships before security given to their con-
tent, contrary to former propositions, which
they held unreasonable, did make answer unto
the marquis in writing. That until they should
Invc security to their contentment, they would
not quit the possession of their shins unto the
Trench, (which was, but reasonable; and they
sent therewith a valuation of their sc\er:d ships,
as they would stand to. 'J hey likewise de-
manded a performance of all things, formerly
cent to his lordship from them by Mr. Nicholas
(save only for the security by money deposited)
saying, That for all the rest they durst not pro-
ceed otherwise. — Lastly, They prayed for a
Speedy Answer, that the delay in this business
may not seem to be in them.

" But D'Ktliar beinc confident of the duke of
Buck's letters, promises, and proceedings afore-
said, would not consent to these reasonable de-
mands of the captains and masters of the Eng-
lish ships, protractim.: the time till he might
Lear further from the said duke out of KuizUnd.

" While these thimij were thus iu handling
hoth in France and in F.iujland, there were writ-
ten over out of France into Filmland letters of
advertisement, 1m>w, and upon what uround, or
by what act or means procured or occasioned,
appeareth not; yet from one .Mr. Lark i in, a
tenant to the earl of llollnnd, and a kind of
agent, a person some way employed by our
state, or under s-nneof our ambassadors or mi-
nisters iu France ; tint the pr : e was concluded
with tho«e of our religion m France ; and thai
withm fourteen days the w.i" would break forth.
or Iregiu in Italy, with a design upon Genoa ; a
rtiatter of great import -.nice for annoying the
Spaniard.

4t This letter of Larking carne to the Knglish

VOL. II.

the contents thereof (as hath heen alleged; were
confirmed by the ambassadors of Savoy and
Venice: by the advantage and colour whereof,
the duke of Buck, drvw the king, who all this
while knew nothing of the design upon Roche],
or those of our religftm, but thought the fonncr
at tides had been *;.f'« :md well penned, both
for him and his subjects, (according to the most
religious and politic intention, and instructions
in that behalf originally given by h:s late father)
to write a letter (luted lit Richmond the same
°8 .July, directed to the said rapt. Pennington,
to tin* effect, viz.

" ilis majesty did thereby charge and com-
mand the said riptnin Pennington, without de-
lay, to put his Irghnrss's fonncr command in
execution, for consigning the Vantgunid into the
bauds of the marquis D'Kitiat for the From ~~\
with all her furniture, assuring her officers, bis
majesty would provide for their ir.dt mniry ; ar.d
to require the seven merchants -hips, in his ma-
jesty's name, to put themselves into the service
of i he French king, accord in;; to t.'ie promise
his majesty had made unto him ; and in case of
backwardness or refund, c"imn:::udin«; him to
use all forcible means to compel them, eu:u to
sinking; ; with a charge not to fail, and this let-
ter to he his warrant.

" This letter was sent by captain Thomas Wil-
brahain to captain Pennington, who was \it in
the Downs. In the ac/uining of August, 16-23 m
captnin Pennington went over again to Diep,
carrvinj; with him the >.aid letters of his mijotv,
and certain instruction* iu writing from the duke
of Buckingham to Mr. Nicholas, agreeable in
-ubsfancc to the former verbal instructions ^iven
by the duke to him at Rochester, a? the said
Nicholas nlledgr.-th : who al>o atlirmr th, that in
all things what be did tombing that businett,
he did nothing but what was warranted by the
duke's instructions to him: which, it" it lx? true,
then the dul.e of Buckingham, who command-
ed and employed him therein, must need* be
guilty of" the matters so acted by the said Mr.
.Nicholas. If there Ik* any subsequent actor
assent of council, or of sunn* counsellors vi state
for the going of these »hips to the French, or
for putting them into ll.eir power, it was ob-
tained only for a colour, and was unduly pot-
ten, by mis-informing the contents of the -ealcd
articles, and concealing the truth, or by some
other undue means: neither can any stirh hit-
ter act of council in any sort justify the duke's
proceeding, which, by the whole current of the
matter, appear-, to have been indirect iu th* bu-
siness even from the beginning. About the time
of captain Pennington's coining over to J)irp
thvM'rottd iiiue,Mr. Nicholas did, in hi»sporches
to the enptJiiiis and masters of the sex en mer-
< !.-ip.n -«>.ifiMa threaten and tell tlnm, tln«t it was
as much as their liw .- were worth, if thry de-
inered not their »«hips to the French, as he re-
quired ; which put tl- mm ?»ich fear, as they
could hardly >k< p : end tiiercupon two of them
were once n solved to have come asaiu w

1 K

1347] STATE TRIALS, 2 Ch. I. 1 0'Jti- — Impeachnmt qf the D. qf Buckingham, [134S

with the ships ; and because the former threats
hud made them afraid to return into England,
therefore to have brought and left their ships in
the Downs, and themselves, for safety of their
lives, to have gone into Holland.

" Captain Pennington being the second time
come into Diep,. there foithwith delivered and
put the said ship the Vanguard into the abso-
lute power and command of the said French
kin*;, his subjects and ministers, to the said
Freuch king** use, to be employed in his service
at his pleasure ; and acquainted the rest of the
fleet wiih the effect of his majesty's letter and
command, and demanded and required them
also to deliver and put their ships into the
power and command of the French king ac-
cordingly. The captains, masteis, and owners
of the seven merchants bhips refused so to dof
as conceiving it was not the king's pleasure
they should so do, without security for deli\ery
of their ships, or satisfaction for the same to
their good contentment. Hereupon Penning-
ton went on shore at Diep, and there spake with
D'Effiat the ambassador, and shortly after re-
turned aboard, and gave the captains, masters,
and owners, an answer, resting upon the vali-
dity, and urging the performance of the former
contract made and peraflctted in England.

" Then the said masters and captains pre-
pared to be gone, and weighed anchor accord-
ingly. Whereupon captain Pennington shot at
them, and forced them to come again to anchor,
as yielding themselves for fear to his mercy and
disposal. Upon this, captain Pennington and
the Frenchmen, that now commanded the Vant-
guard, came aboard the merchants ships, and
there proposed unto them a new way fur their
security touching their *hips, namely, to accept
the security of the town of Diep : Whereupon
they all went ashore, except sir Ferdinando
Gorge, who, with his ship, the Great Neptune,
adventured to come away, as not liking these
new and unreasonable propositions. At their
coming asliore trey spake with Mr. Nicidas,
and there bv his inforoment came to a new
agreement to accept the security of the to«n
ot'Diep, upon certain hard condition*; namely,
the said marqoi> D'Etliat as extraordinary :m-
bassador in England, and as having power by
deputation from the duke of Chevereux and
Villocleer, on or about Ai:gr.*>: l.r», K/25, did
agree and promise to the said Mover, Toot bin,
Thomas Davie*, Dard, John Davies, I.ew>:i, as
captains and owners of the said ships, called t Sj
Industry, the Pe.nl, the Murygnld, the Loy.ihy,
the Peter and John, and the Gift of God, ;iu u
being in *.he road of the town of Diep, I hut iht:
French king should give and furnish to the said
owners (they bein,r: preseot, ;md accepting it hi
this town) this stiliicirnt security, That witi'in
15 davs after the said French kin,i thould be in
po.vession of the said >hips, he should give suf-
fu'u nt en m ion in London, for the sum of '£13,000
hue/*, whereat the <aid ^hips were estimated,
with all that appertained! to them, as caimors

commonalty of the said town of Diep entered
security, and bound the goods of their common-
alty to the said English captains and owners,
that the said French king and his ambassadors
should furnish the security within the city of
London within the time, and for the sum afore-
said.

" On or about August 16, 1625, the said
marquis d'Etfiat, as well in his quality of being
ambassador, as by virtue of his said deputation,
did by public act promise nnto the said Mover,
Touchin, &c. to give and furnish to thein(tney
being present and requiring it in the town of
Diep) suttirifnt security in the city of London,
within 15 days after the French king should le
in peaceable possession of the said ships, for
the sum of 213,000 livies turnoys, whereat the
said ships were valued, -r.iinelv, for the said
si lip called the Industry, and so a several sum
for every ship, which security should remain
for assurance to pay to ctcrv of i hem the prices
of their fhips, before specified in that act, in
case they should be left in the French kings
hands, with other particulars in the said act
mentioned : without derogating nevertheleu
from the clauses of the said contract, March
25, 1625. Albeit, because the said ambas«a-
dors had found it good to discharge the said
English mariners out of the said ships, that
therefore the freight agreed upon by the *aii
former contract should not be wholly paid, hut
only for the space of the first six months ; vet
if the French king would use them for twehe
months longer, or for any less tine, that then
he should pay freight for the same according to
a new particular rate and manner expressed in
the said Article", and boend the goods oi" him-
self and the said duke of Chcvereux and M.
Villocleer for the performance hereof, ix It
the said article itself, reference being thereto
had, amongst other thing* more fully appeared)*
" This Article being passed and recorded at
Y)iep, all the said seven merchants ship*, ex-
cept the Great Neptune, who was gone amy
in detestation of the action intended by the
French, were forthwith delivered into the a'»*o-
lute possesion, power, and command of the
French king, and of his said ambnssarior
d'Efhat. :md other the ministers and subjects nt
the French king ; to be employed by him in
his service at his pleasure, and not one of all
the Enuli-h company, man or boy, (other Una
one only man, a simmer as it should seem)
wo-.; id May in any of those ships, to serve
apainst tli? R')cii*I!rr<, or tlm*c of our religion.
" As soon r> ;he-^' >hi;.\s were thin delivered
into the possession and power of the French-,
the said ambassador then moied them, and
dealt earnestly w *h them for the sale of their
>hips. Mr. Nicholas having finished the norfc

lie urnl pi i^ at his cu:ni:ig fiviu Dieu he re-
ceived ;i diamond ring worth 5o/. and an hat-
band &vr w.lh sparks of diamonds, worth 1W
marks, of the ninba?ind<i:', as a rccompenre for
his pains taken in this employment, which 'al1
and other munitions of war, viz. 50,000/. And ; though ambassadors do confer greater rewsi*
iu or about the same ljih August lo°,5, die somuimo at their parting upon persons of Air.

1349] STATE TRIALS, 2 Ch. L \G2Q^-the Earl of Bristol, and Lord Conway. [1350

judice, mid almost utter ruin. It hath been
said by some of the French, tlint the Van t guard
the mowed them down like grass ; to the gieat
dishonour of our nation, and the scandal of our
religion, and to the disadvantage of the great
alfinrs of this kingdom, and all Christendom. —
Also the ships themselves were in eminent peril
to he utterly lost, for lack of sufficient emit ions.
\( they be come home since this parliament
sate down, long after the matter was here ex-
pounded and taken into examination ; it may
be well presumed, that it is by some underhand
procuring of the duke, and the secret complying
of the !• rench with him, to colour out the mat-
ter ; which the lords may examine ns they see
cause. The ouc and only Englishman that pre-
sumed to stay in one of the ship*, and serve
against the poor Roche Hers of our religion, at
his return, was slain in charging a piece of
ordnance, ndt by him well sponged.

" In Feb. last, 1C25, M. de la Touche hav-
ing speech with Mr. Thiinos Sherwell, a mem-
ber of the commons house of parliament, at
Salisbury, 'as he was coming up to the parlia-
ment, and M. de la Touche going down into
Somersetshire to Mr. John Paulet's to M. Sn-
bysa ; He told Mr. Sherwell in the hearing also
of one Mr. John Clements of Plymouth, who
is now in town, the words that the duke had
snoken to him the lntt summer, touching tlie-e
snips; and thereupon used these wuids, ' Ce
' duquc est uti mcjhant homme/

" Upon this whole Narration of the fact
touching the manner of delivery of the shi'-s to
the French, divers things may l>e observed,
wherein the duke's offences do consist : a«, in
betraying a ship of the kind's royal navy unto
a foreign prince's hands, without good warrant
for the same ; the dispossessing the subjects of
this realm of their ships and goods by many ar-
tifices and subtillics, and, in conclusion, with
high hand and open violence, against the ijood
will of the owners ; In breaking the duty of
lord admiral and guardian of the sin ps and
seas of this kingdom ; in varying from the ori-
ginal good instructions, and presuming to give
others of his own bend in matters of state; In
violating the duty of a sworn privy-counsellor
I to his majesty ; In abusing both houses of par-
liament by a cautclous misinformation, under
n colour of a iiu-v-age from his majesty ; and
in disadvantaging the affairs of th»? e of our re-
ligion in foreign parts : Offences of an high
and grievous nature.

" For the Proof of some parts thereof, which
are not the lea*t, I offer to your lordship con-
sideration the statute of the 2 & 3 oi K. o\
touching the duke of Somerset ; wherein is re-
cited, That amongst other thing*, lie did not
suffer the pier*, called the Newhaveu and
Blackerst, in the parts beyond the seas, to be
furnished with \ ictuals and money, whereby the
French were encouraged to invade and win the
same ; and for this offence, amongst others, it
was enacted, That a great part of his land
should be taken from him. And if non-feaft-

■

Nicholas's quality, for less service done) yet
was it more than so ill an office as he was em-
ployed in, could in any sort deserve.

" The said Capt. Pennington returned spee-
dily into England, und took his journey towards
the city of Oxford, where the parliament was
then sitting, by adjournment from Westminster
thither, ami there several propositions were ta-
ken into debate for the good of our religion,
and the supply of his majesty's occasions : For
the well resolving and settling whereof, the
true knowledge how, and upon what occasions
and terms the sevtral ships were sent, deliver-
ed, employed, and to be employed, was very
requisite. Afterwards nevertheless upon or
nbout Aug. 6th, 16*25, at a meeting and confer-
ence between both the houses of parliament in
Chnst-Church-Hall, after the reading there of
his majesty's most gracious answer to a peti-
tion ot the lords and commons formerly ex In-
hibited unto his majesty teaching our religion,
and much for the good thereof, the duke of
Buckingham well knowing all the passages
which I have now related to your lordships to
be true, did not only camelousiy conceal the
same, but also much boldly and untruly, by co-
lour of a message delivered from his majesty to
both the houses, afrinu unto them touching
those shins to this effect ; That it was not al-
ways fit for kings to give account of their coun-
sels, and that about five of the six months were
already past and yet the said ships were not
employed against Kochel ; willing and advising
the said Jords and commons to judge the things
by the event, to which he seemed to refer the
matter. By which cunning speeches the duke
intended, and accordingly did make the lords
and commons then t> believe that the said
ships were never meant, or auy way in danger
to be employed against the itochellors or those
of our religion in France ; and herein he did
great injury and disservice to his majesty, to
the great scandal and prejudice of our religion
and affairs, and highly abused both the lords
and commons by this cautelous and subtle
speech and insinuation, and thereby gave both
houses occasion to forbear petitioning or suing
to his majesty for redress in this tiu-in^^, while
the time was not then passed ; for his shins
were not us then actually employed against the
Rochellors, albeit in truth they were then deli-
vered into the French king's power.

" And the same time before the parliament
was dissolved, Capt. Pennington, who could
have opeued the whole truth of the business
for the service of the king and the realm, came
to Oxford, but was there drawn to conceal him-
self by means of the duke, nod not to publish
in due time his knowledge of th'e premisses, as
was there shortly after reported. The truth
whereof, the lords in this parliament may be
pleased to examine, as they shall see cause ;
the parliament at Oxford being shortly after,
vis. Aug. 12, unhappily dissolved.

*' In or about Sept. 16, 1625, the said ships
were actually employed against the Uochellers,
and their friends, to their exceeding great pre-

1351] STATE TRIALS, 2C11.L 1G26.— Impediment of the D. of Buckingham, [1352

aiice in n matter tending to loec a fixed cnstle 1 enough to bay, that it is not questionable; for
belon^iir,' to the king, be an liigli offence ; then . there ha\e been great nun questioned in tit*
the actual putting of u ship-royal of the king's, like case-: Then; be some laws made that »c
into the hand of a foreign prince, winch is a i particular, according 1 > the temper and i.rni-
uioveuhle and inure iiscltil castle and fortress ' sious of several state? : There are other Jaw,
of the realm, must needs be held a iircuter of- j that be cocssciitinl and collateral with po-
fence. I tcrui.ient; and it those laws be broken. uJ

" 1 will f>>rbcar to cite any more precedents things inn to disorder i:nJ cunfusion. ^ia:h is
oi this kind, because some of those who have | thru rule observed in :t!l state**, of Mippu>*:ns
gone before me, have touched at d.\trs precv- ! *i.:e to encourage virtue, by apt punitL-
dentsof this nature, which may be applied ^o | rueut and rewards : And this is the tit-
test law to insist upon in a court of pai liaoient,
>.licn the proceedings are not limited either bv
the civil or common luws, but matters arc ad-
judged according as they stand in opposition or
conformity with that which is Supremo Ui, m/m
jioi.uti.

y. " Dy this late law, whoever mores the
king to bestow honour, which is the greatett
reward, binds himself to make g;ood a (t^uble
proportion of ineiit in that paity who i> t'»re-
cei\e it ; the first, of value and excellence; tin-
second of continuance and dural.ieness. Ami
as this honour sets men up above o;hi :>, so
they shi/iild be eminent in virtue bevmul other*:
as it is perpetual, not ending with their rcr-
son«, but dt*>cendiug upon their posterity ; w
there ought to be in the lirst root of this honour
some such active merit in the service of the

this my part. Only, because the abu.e of
the pailiarnent, which is the chit lest council of
state and court of judicature in the lealm, is
not the least otfei ice in this business I shall de-
sire your lordships to take it into consideration
the statute of Woim. 1, cap. 30, whereby such
as seem to beguile courts of justice, are to be
sore judged in the same court.*, and punished,
as by that statute nppeareth."-— N> he conclud-
ed, and left the duke to their lordships equal
justice.

Mr. Pi/m enlatgeth the Ninth, Tenth, and Ele-
venth Articles.

The Ninth and Tenth Article's were read
nest. These, as also the Eleventh Article,
were enlarged and aggiavated l.y Mr. I'yiii, 111
this manner.

u My lord1..- Alihouiih I know that I shall commonwealth, as might transmit a vigorous
speak to my own disadvantage, yet I shall hi- example to his successors, whereby they raaj
hour to speak with aa little disadvantage to be raised to an imitation of the like virtues.—

He said, he would forbear to urge this point
further, out of a modest respect to those per-
sons whom it did collaterally concern, piu-

niagc
the matter as J can. 1 have no learning or or-
nament whereby J might shew myself, and I
shall think it enough plainly to shew the mat-
ter: Tor all that I aim at. is that I may lose fessing his Charge to be wholly against the
not Nin- of the cause. Ami ihercfoic. my lords. ' duke of Buckingham.

I sh ill apply myself with as much convenient | S. ** Fiom the consideration of Honour, I*-
b.-viit). as one that ki» m» that your lordships '• gcthcr with the price of money ; the whuh bt-
tmie is much more 1 /ccious than inv words; in" compared together, mav be reduced to two
Your lordsiupa hting Mich judges ns will mea- | heads (may it plenec your lordship*;) the enc
sure things by true and natural pmpui lions being earthly and base, may be bought with a
and licit by the propoition of the action or ex- , proportionable price of white and red earth,
prcssuii. 'Ihetir^t < ih'iaiu e into my service, \ gold and siher: the other, which is spiritual
must lie re.idii g the Ariich-. ; (whiJi is sublime) to which, money eauiivt I*

•' .M\ !i..fK, thi Cijui.*' formatter ofNf.ut, a proportiouabh: price. Honour is tran-ftn-
HS) ro;i,r. -.us and .■.;.■ ..unr, toar it nced> no ' dent, in rtgi-rd ir wu* held a sacred ami uninc

. proof, i!.:it tlic>e In-:1 »u.s haw been procured : j tiling; insomuch that there was 11 temple- dtdi-
And ih. leioic I will oiilv w + .-t upon the con- edited to her l.v the Romans: and >o I cwiiclade
seij:u 1 «■. 1 j% I will .-!ji«. thai by this fact ' by prcsi ription, thai honour is u divine thin,*;
tljo da!»e l..ii-i C'li.a.itt ,l a great otie-uci*: ; for the .Sciiplure caiN kings (in»i>; and then
Andy. Thai ;h:s uin r.ee batu | n«ihircd u Lreat ■ timse tha? are about kinga iniitt Needs he rc-
erii "i.ince t ; the (-••iiiiai.-iiwc-alth. And 1 will '> sembled to thoac powers and principalities thut

conclude, m stre;ij;ii ening the whole by some ■' attnid n«»\t to the throne: ami if honour I*

p v««d ■ »>:s of l»;i;"r times, that parliaments
ii .' ■ psfcceileil :n that eoiir>e, in which your
lord.'hij > arc likr l.i j»rorec«l.

'• 1. i o pri.vc i:. a tauh or an o'i'encc. \ must
pro\e ih..t tier,- was a duty; for e\ery fault

}»r(.-ii|i -#*i:::udiU\ : And in this case the fir»r , 'he sale of Honour is an
work ir. to shew, th.it the duke* v\a> bound to do
otheru,>o: For which I .need to aliedgc no-

such a divine thing, it must not be bought with
so base a pi ;ce as money.

•1. " Lastly, Honour is a public thing, it i*
the k ward of public desert*.

** Ami thii« your lordchips have seen, tlmt

offence unnatural,
au>-wist ii,c law oi nature. Now what an ul-
leiice this is, >«uir loidship« may di^ce■rn. n".n-

iIiij'l: t i c, th ■:•! thai he is a swoin scr. ant and sidermc, the kinds of the otience, and the arf-

I'oui^rl! r t.i t!e_ kini', and so ought to .have junci* which I nov. fail upon. 1. It extremity

jireierii'i i.s liirijtst^V honour and service be- delluwcrs the (lowers of t lie crown; furitoitkff

fore l»i> own pritle, in seeking to enuobic all them cheap to all behohlcis. Q. It takes from

that bloud that concerned him. Aud it is nut the crown ihv iuo-a lair and frugal reward of'

£

1353] STATE TRIALS, 2 Cii. I. 1626.—*/* Earl of Bristol, and Lord Conway. [1354

fit men for employment, may be drawn forth to
be employed fur the good of the common-
wealth, where otherwise they would not take
it upon them : but that any man, for his gain,
should turce a man to take degrees of Honour
upon him ; certainly cliis it beyond all prece-
dents, and a thing not to be exampled, either
in our nation, or any other.

" And further, I am commanded to tell your
lordships, That it is dangerous, that if a great
lord* by his power or strength, may compel a
subject to take such honours, why may he not
compel them as well to take bis lands at what
price he will, and to sell them again as he
thinks fit; yea, to marry his children as it
plea»eth him ? The consequence of this is great,
if ihut it be well considered ; and they conceive
that it is of so great a consequence, that if it
he not stopped, it may come in time to make
way for u dangi rous subversion, and demon-
strates a great tyranny of a subject, under a
most wise, most gracious, and most moderate
king.

" And thu*, my lords, I have done with the
first Article allotted to my Charge, and so I
proceed to the next.

" My lords; Before I enter into the enforce-
ment of this Article, I shall, by way of protes-
tation from the house of commons, do m this,
as 1 did in the other Article. And first, for
the king's majesty, under whom we are now
happily governed and placed, I must, by their
direction, say, for his honour and our comfort,
and, with humble acknowledgment, confess,
that since his coming to the crown, there have
been men of as great parts and learning ad-
vanced into places in church and common-
wealth, as any have been heretofore. And
then for the first of those lords, whose names
are mentioned in this Article, I must say, that
they do not intend to reflect at all upon him ;
iiav, they think his person so worthy, as to he
advanced to as high a place, without any price
at all, and that he ought to have kept it longer,
if those that shuttled in those times, had not
shuffled Ijim out.

" Now to the matter of this Article, which
is the Sale »f Places of Judicature, being an
o Hence : and to prove this, is all one as to make
the glass clear by painting of it. The grounds
whereon I shall go, shall be laid open ; Magna
Charta, chap. *2lJ. The words art these: 'Nulli
' vendemus, nulli nenalmnus juvitiam.' It may
be said, this comes not close to my purpose;
yet, by your lordships fuvoin, I shull make it
good, that it doth, and I shall begin with the
latter of the two first, ' Nulli negabimus;' for
if any that hath power or favour with the king,
should procure him to delay the making of
judges, when there were judges to take it, it
will not he denied, that they do their best en-
deavour to make the king break his word ; for
if any use their favour alout the king to pro-
cure places of judicature for money, they do
what in thrni lies to make justice saleable; for
it is plain, that he ihat buys must sell, 4nd can-
not be blamed if he do sell.

deserving servants : for when honour comes to
be at so mean a rate as to be sold, there is no
great man will look after it. 3. It is the way to
make a man more studious for lucre and gain,
thau of sutliciency of virtue ; when they know
th.it they shall be preferred to titles ot honour
according to the heaviness of purse, and not
for the weighuness of their merit. 4. It intro-
duced! a strange contusion, mingling the meaner
with- the more pure and retined metal. 5.
Lastly, It is a prodigious scandal to this nation,
(us the house of commons think).

" For Examples and Precedents, I am con-
fideiit there are none; and your lordships can
look for none, because it is not parallelled to
any precedent. But certainly it is now a fit
time to make a precedent of tins man, this great
Duke, that hath been lately raised to this tran-
scendent height in our sphere ; who thinketh
be cannot shine enough, unless he dim your
lordships honours, in making the same con-
temptible through the sale of it, by the com-
monness of it.

" Vet I am commanded further to observe
another step of imworthiness in this gentleman,
who hath not only set hoi our to sale by his
agents, hut compelled men likewise, unw tiling,
to take titles of Honour upon them. For the
particular, that noble gentleman that this con-
cerns, I am commanded to say of him from the
bouse of commons, That they conceive of him,
that he was worthy of this honour, if he had
not come to it this way; they can lay no blame
upon him, that was constrained to make this
bargain to redeem his trouble. But we must
distinguish of this, as divines do betwixt the
active and the passive usurers ; they condemn
the active, speaking favourably of the passive.

11 And I must here observe to your lord-
ships, by the direction of the house of commons,
That it seems strange to them, that this great
man, whom they have taken notice of to be
the principal patron and supporter of the semi-
pelagian and a popish faction, set on foot to
the danger of the church and state, whose
tenets are Liberty of Free-will, though some-
what mollified ; that a man, embracing these
tenets, should not admit of liberty in moral
things : and that he should compel one to take
honour and grace from a king whether he will
or uo; what is that, but to add inhumanity and
oppression, to injury and incivility.

*• But here I must answer a precedent or
two, which may be by misunderstanding en-
forced against me: 6 H. 5, there was Martin
and Bubington, and others, which were chosen
to be sergeants, and thev did decline from it
out oi' their modesty, and doubted that their
estates were not answerable to their place:
yet upon the charge of the warden of Kuglaud,
they accept ex 1 it, and appeared to their writs.
Likewise there is a writ in the register, that
many, by reason of the tenure of their, lands,
may be compelled to be made knights. But
this makes rather against, thau for this faction:
for it is true, that this is the wisdom and policy
of the common-law, that those that be thought

1355] STATE TRIALS, 2 Ch. I. 1Q26.—Iwq>e§chmentqfthe D. tf Buckingham, [1556

law, and they foresaw the corruptions of those
that came into those places by those means,
and that it is a hindrance of sufficient and
worthy men from those places. And also 2 $t
3 Edw. 6, which was likewise cited in the case
of the duke of Somerset, by which he was to
forfeit his estate, that one thing was for selling
of places in the common-wealth for nionev.
And certainly, with your lordships favour, it is
most just and probable, that they that protest
themselves to be patriots, and shew by their
actions, that they aim at their own lucre, and
labour to hinder (he distributing of justice; it
it most just and proper, that those men should
return back again to the public treasury of the
king and kingdom, what they have by their
unsatisfied lucre gotten.

" And so, my lords, craving pardon of yoi
for my boldness, coufusiou, and distractions, in
going through this business, I humbly leave
myself to the judgments of your favours niul
charities, and this great man the duke to your
wise censure and justice.'*

Mr. Shcrland enlargetli upon the Twelfth

Article.

" I shall open the evil consequences that de-
pend upon the sale of the places of judicature,
or any places of great trust. 1. By this means,
unable men shall be sure of the precedence
unto places ; for they being conscious of their
own want of merits, they must be made up by
the weight of gold. 2. It must needs hence
follow, that suits, contentions, brawls, and
quarrels shall be increased in the common-
wealth. For when men come to seats of judi-
cature by purchase, they must, by increase of
suits, increase their own profit. 3. Men will
not study for sufficiency of learning to be able
to discharge their places, but how they may
scrape together money to purchase places. 4.
It will follow, that those that have the best
purses, though worst causes, will carry away
the victory always. 5. It will follow, that when
they be preferred for money to those places,
they are tied to make the best of those places,
' viis et raodis :' and then the great man that
sold those places to them, must uphold them in
their bribery ; and he is tied to it, because they
are his creatures; nay, further, he is tied to
support them in their bribery, to advance their
places upon the next remove. 6. And, lastly,
when good men, and well-deserving, come to
any pluce, they shall not continue there, but
they shall he quarrelled at, so that there may
be a vacancy in that place, and then some
other shall suddenly step into the saddle, by
giving a competent price.

" Upon these and the like reasons, this fact
of selling and buying Places and Offices of
trust, hath not only been declaimed against by
Christians, but also by moral Pagans. Aristotle
in his 5 lib. of Ethicks, cap. 8. gives it as a
caveat, That no man amongst the Thebans
was to take upon him any place of government
in the common-wealth, if that he were a mer-
chant, unless there were ten years distance
between. And the reason is this, because
merchants are used to buying and selling, it is
their trade and art to get money, so that their
fingers are accustomed to that which they can-
not leave, when they come to places of trust
and judicature. Nay further in honour of the
merchant, he is accounted the wisest merchant
that gains most; so that if such comes to
offices and places of trust, he thinks it best to
advance his profit.

" Next to the Pagans, the popes, a genera-
tion full of corruption, yet they, by their bulls,
are full of declamation against such. And this
is plain by a ball of Pius Quintus, who lays the
penalty of confiscation of goods of any that do
for money acquire any offices, and condemns
them by his papal sentence to be great sinners.
So Gregory 13th condemns the like.

" And now to come nearer home, to come to
that which will -principally lead your lordships,
which are the judgments of your ancestors in
parliament ; wherein it appears by the statute
of 5 Hen. 6, that the same statute condemns
the seller and receiver, as well as the buyer and
giver. It further appears by the preamble of
that statute, that sucn offences were against the

Then was read the Twelfth Article.

Before Mr. Sherland entered to open iod
enlarge upon it, he discoursed in general con-
cerning Honours, mentioned in the preceding
Article, and spake as fblloweth :

" My lords; It hath pleased God, who hack
the disposing even of all things in his hands, to
cast this service now upon me, who did formerly
my endeavour to decline it, considering tat
wcightiness of the business, the greatness of
this presence, and my manifold defects, beat
known to myself: But another that should
have with better contentment, I doubt not, per-
formed this service, being fallen now sick, there
is a necessity imposed on me by the house of
commons, wherein I shall be very plain and
short, according to the warning I had ; yet I
shall deal plainly and faithfully, according to
the sense of that house by whose command
I now appear: And since I am now thrusts
a bush into the gap, I hope your lordship* will
not expect such a composure and strength of
speech which you have had from others of my
companions. The subject that falls to my lot
to speak of before your lordships, are houoor
and justice, two great flowers ot the crown : I
confess myself exceeding unfit and unable to
speak of these points before so great an assem-
bly of such persons of so great lionour, and
such superior judges of this kingdom; hut I
must take my lot : it pleaseth your lordships
as in sphere, to take knowledge of the jiruv
ances presented by the commons house, which
I desire and hope your lordships will nut tale
presumption.

" May it please your lordships, the parts of
this Charge, as you discern upon the reading
of it, are two; the one general, the other par-
ticular : The general is perverting the ancient
and noble course of attaining to the titles of
honour. 9. The other, the compulsion or in*

1357] STATE TRIALS, 2 Ch. I. 1626.— the Earl qf Bristol, and Lord Comvay. [1358

forcemeat of men unwilling to purchase ho-
nour.

" For the first by way of protestation, I am
commanded by the house of commons, to sny,
that they repine not at their advancement upon
whom those honours were conferred, but they
think them worthy thereof; yet they wi*h, for
their sake**, and the safety of this nation, their
virtues bad solely raised them, and that they
had not been forced and constrained to contri-
bute to this bottomless gulf to attain their
titles.

" They complain again of this unworthy way
brought in by this great man, they fall upon
this in tliis manner, and found the evils under
which the common-wealth suffers, and the
causes of them being two principal evils, which
ore the decay and stopping of the trade, and
the termination of honour. In examination of
which second evil, the trade and commerce of
honour,we have, as the commons do, receive 9ean-
fittntem reum : For he endeavouring to colour
the matter says for himself, That he was not
the only introducer and first bringer in of this :
but they find that he was the first that defiled
this virgiu of honour so publicly, making an
account, that nil things am! persons should
stoop and subject themselves to his vain desires
and extravagancy. Now that this commerce
of honour is an offence ; then to prove what
kind of offence it is, is the only -thing I shall
trouble your lordships with.

1. " And first that it is an offence,! sh.illdraw
my first argument from the Nature of Honour ;
honour is a beam of virtue ; now this honour
can be no more fixed upon an undeserving
person for money, than fire can be struck out
of a stick.

2. " From the Subject of Honour, which is
merit, for the which no price ought to be paid
to any great man by any undeserving person
for the same, but their own merit and desert."

Then he passed to the Grievances which are
caused by the selling of Titles, and they nre
three. 1. " It is prejudicial to the noble
barons of this kingdom. 2. To the king, by
disabling him to reward extraordinary virtues.
S. To the kingdom, which comprehends both
kings, lords, and people.

" For the first he said, He would not trouble
their lordships with recital, how antient, how
famous the degree of barons hath been in these
western monarchies; He said, the baronage of
England hath longer upheld that dignify ; and
doth yet retain a greater height than in any
other nation: they nre great judges, a court of
the last resort, they are great counsellors of
state, and not only for the present, but as law-
makers, counsellors for the time to come ; and
this not by delegacy and commission, but by
birth and inheritance; so that when any man
shall be made a member of this great body,
who is not qualified for the performance of
such noble functions, it must needs be a preju-
dice to the whole body, and dishonour to the
head. As if a little water be put into a great
vessel of wine, as it receives spirit and strength

from the wine, so it doth impart some degrees
of its own infirmity and coldness to the wine.

2. " It is prejudicial to the king: not that it
can disable him from giving honour, for that it
is a power inseparable, but by making honour '
ordinary, it becomes as an incompetent reward
tor extraordinary virtue; when men are noble,
they are taken out of the prevt of the common
son, and how can it chuse Lot fall in cstimar
lion, if honour itself be mudea press?

3. " It is prejudicial to the kingdom ; the
stories and records are full of the great assist-
ance which the crown hath received from the
barons, both in foreign and domestic actions,
not only by their own persons, but by their
retinue and tenants, and therefore they are
called by Bracton, * robur belli';' how can we
now expect the like from such as have no te-
nants, and are hardly able to maintain them-
selves ?

" But this is not all; for the prejudice grows
not primitively by defect of that assistance
which they might give the state, but positively
they have been a great burthen to the kingdom
by gifts and pensions already received, and yet
stand in need of more for the future support of
their dignities. This makes the duke's offence
the greater, that in this weakness and consump-
tion of the commonwealth, he hath not been
contented alone to consume the public treasure,
(which is the blood and nourishment of the
state) but hath brought in others to help him
in this work of destruction. And that they
might do it more eagerly by inlarging their ho-
nours, he hath likewise enlarged their necessi-
ties ; and their appetites. He did second his
Charge with two precedents ; the first, 28 Hen.
6, in the Complaint against the duke of Suffolk,
in the 31st Article of that Complaint this was
one of his Charges, that he William de la Pool,
duke of Suffolk, had procured one who had '
married his niece, to be made earl of Kendal,
and obtained for him 1,000/. per annum in the
dutchy of Guienne ; and yet this party was the *
son of a noble and well-deserving father. So
you see this is no new thing for the* house of
commons to complain, that those that are near
the king should raise their kindred to an unne-
cessary honour; and if that were worthy of pu-
nishment for advancing %i one, then what pu-
nishment is he worth v of that hath advanced
so many ?

" The second precedent is 17 Edw. 4. There
passed an act of parliament for the degrading
of John IMf vij, marquis Montapue, and duke of
Bedford ; the reason expressed in tint act is,
because he had not a revenue sufficient for the
maintaining of that dignity.; to which is added,
another reason of that nature, that when mqn.
of mean birth arc called to a high estate, and
have not livelihood to support it, it ii.duceth
great poverty, and causeth briberies and extor-
tions, imbrnccrics and maintenance. -And
now my lords, how far tht*e reasons sliall lead
your judgments in this case, I nv.i*t leave it to
your lordsh'ps."

Then he read the Twelfth Article, being

1359] STATE TRIALS, 2Ch. I. iO'20 Impeachment of tltc D. of Buckingham, [13C0

the second part of his Charge ; the title where-
of was, the Exhausting, intercepting and mis-
im ploying the King's Revenues.

u My lords, this Article consists of several
clauses, which in some respects may be called
so many distinct charges : fur though they all
tend to one end and scope, the diminishing the
king's treasure, yet it is by divers ways, so that
every clause is « particular branch. Therefore
he desired to break it into parts, and to select
the most material, citlr. r in point of offence or
grievance, intending to pass through them with
this order ; first, to declare the state of the
proof, and then to add such reasons and in-
ibrcements as he did conceive most coiiitncc-
able to that judgment which the commons were
to expect from their lordships."

He made two main branches of this Article.
The first concerns La;ids obtained from the
crown ; the second concerns Monty in Pen-
sions, (.rifts, Farm?, a/id other kind of profit.

Touching the Lands he observed four things,

" 1. The sum of 3,03o/. per annum of old
rent, besides the forest of Lav fie Id of which
we have no value, and we can find no schedule
Granted by the late king to my lord of Bucking-
ham within ten years past, as appearcth by the
several grants vouched in the schedule an-
nexed ; and it was in itself a great grievance
that in a time of such necessity, when the king's
revenues are not able to support such ti great
charge, that so much land should be conveyed
.to a private man : this he acknowledged was
not the duke's case alone, for others had re-
ceived divers grants from the king, but none in
so great measure. — And because the commons
aim not at judgment only, but at reformation,
lie wished, that when the king should bestow
any land for support of honours, that the cau-
tion which was wont to be carefully observed
might again return into use ; that i«, to annex
those lands to the dignity, lest being obtained
and wasted, the party repair to the king fur :i
new support; by which provision the crown
will reap .this heiielit; that as some lands go
out of new grants, othcis will com*1 in by spent
intnils. — lie said he would not trouble their
lordships with repetition of the laws heretofore
made for preventing the alienation of the king's
lands, and for resuming those that had been
alienated, nor of the ordinances made in this
high court for tin: same purpose, and lines set
upon those that presumed to break such ordi-
nances ; he only added as a fu.ther enforce-
ment of the grievance, that when the kiiii!*- re-
venues be unable to defray public necessities,
the commons must needs be HK»re burthciud
with supplies.

'* 2. Ills second point wan, Uu* unusual
Clauses which the Duke by hi* greMUe-s huth
procured to be incited into the Warrant* for
passing of those Lands, of which two were men-
tioned ; the first, That the casual prolits s!i«>u!d
not be rated in the particulars; the situud,
That all bailiffs foes should be reprised : lioth
which are to be proved by the Warrants remain-

ing with the auditors of the rates, and other au-
ditors; whereupon he presented these cons-
derations :

" 1. That it was a mark of ingratitude and
insaiiahlencss in the duke, thus to strain the
king's bounty beyond his intention* and lit it
he would not receive this bounty by the or-
dinary way, but by the way of practice. 8.
It argued uiifaitlifuhiess in him, that bcitie a
sworn counsellor, he should put the king ui'o
such courses of so much pn judico, deoutfulh,
in concealing the value of that which lie
bought; so that the king gave he knew iiut
what ; Tor under the proportion of 2,000/., he

| gives it may be 4,000/. And by this the k:ng
did not only sustain great los3 for the present,
but it opened a way of continual his*, which
hath ever since been pursued by all tnose who
have passed lands from the crown. .1. The
king is thereby not left master of his own libe-
rality, neither in proportion nor certainty; for
it might so fall out, that the quantity pa«cd
from him, might be treble to that he intended.
" 3. The third was, ' The surrender of divers
' parcel of these lands back to the king, arter
* he had held them some years, and taking
' others from the king in exchange.* Whereat
noted, lhat the best of the Lands and ami
vendible being passed away, the worst lay upon
the king's hand ; that if he should have occa-
sion to raise money by sale of lands, that course
is not like to furnish him. Besides, that iu the
mean time betwixt the crams and the surren-
ders opportunity was ltfr to the duke to cue
down woods, to enfranchise c»py holds, to make
Ion*; leases, and yet the old rent remaining
still; the i;*nd may be surrendered at the snnie
value. Whether this have been practised, fie
could not ulhrni, not having had time to exa-
mine it ; yet he desired the birds to enquire
after if, tlie rather for that the manor of CJ. in
J.iiit-oln^hhe biingdisiw nd)ered,;,iid 17/. of the
oh! rents sold out of it, was by a >urmtdif
turned back upon his majesty.

" I. The fourth point of thi.-* branch was,
The colourable Tallies clivers panels uftiic«e
hinds had from the crown in lieu of this sur-
render, being sold and contracted lor h\
his own agent, and the money mt-iicd l-y
himself or to his u«e, "suid yvt Tallies inetc
stricken out, as if it had really come to the

j exchequer f.»r his ma ji sty's sen ice. This i*
to be prow d by his own oiticeis, by the otiicers
o' tin1 e\che(|ucr, and by tl.eTadu s tlumsche?,
whn h Tallies amount unto !.*0.."tc". W. lu$. &/.

j \Yh'*!w v |,t» observed, 1. That the* r.in a trade

' off.ilsh'iod toward t!*e kii-g thio::i:^ uiall diH
h:-> dealing. '*. i ij.it »hi* was a «i. wcv th u»:lit
upon ro prevent the witdom oi i>:.iJ>anitiU ; K>r

bv n.i-i means the trmt stem-, to i.aic i he face
i *■ . •

of \:ihial>!f purchases v.herev.s ti.ey wire Hi-
de* d free gitt>. .'*. If the title of those laud*
should n:o\c questionable, it apj j.;ring byre-
cord, ;>.» it the kinjj had reci ived tlie money, b*
was ht-i.ud in honoui to make restitution, and
yet the duke hud the profit.

*l liut it may be said, This was the p*"

1361] STATE TRIALS, 2 Ch. I. If32f3.— the Earl of Bristol, and Lord Conway. [1368

chasers desire for their own security. Of which
objection lie made this use, That the subjects
generally took notice of so much lands given
to the duke, that there is good cause to expect
resumption.

" In the second genera! branch of this Arti-
cle concerning Money, the first point observed
was, the total sum received by him in ten years
space, amounting to 169,995/. besides the
grant he hath of the overplus above 3,000/. per
annum to be made of the third imposed upon
strangers goods, and besides the moiety of
7,000/. out of the customs of Ireland, which he
is bound to pay to the king ; but whether it
hath been paid, or no, is doubtful.

44 This he delivered as a sum estimative, yet
so computed as it may be more, but no less.
And tins total ariseth by free gifts or pensions
to himself, else by profit of farms, by pensions
to others ; fur offices, whereof he received the
profits, as the Admiralty, and Mastership of
the Horse. All which appear by a schedule
annexed to his charge.

" The Grievances consist in this ; That the
common-w ealth hath been bereaved of the use
and employment of so public treasure in a time
of as great want, and great occasions in this
state, as it hath had in many ages, when the
expences of the king's court can hardly be sup-
plied, when his house and castles were unfur-
nished, when the seas have been unguarded,
the coast subject to the incursiou and spoil of
enemies by default of provision in the navy, to
the dishonour of the nation, and damage of the
subjects, and hazard of the whole. And the
offence is this, that the wants in the navy and
stores being within his own charge, he was no
more sensible of them ; whereby it appears,
lie preferred the serving of his own turn before
his duty and before the safety of this state.

44 The second point observed in this branch,
was, That the Duke, under pretence of secret
services, bad procured great sums of money to
be issued by Privy-seals to sundry persons named
by himself, but afterward employed to his own
use. Hereof two instances are propounded :
the one of 8,000/. paid to sir Robert Pye, 12
Aug. 1610, and by him disbursed for the duke's
purchase of Burleigh, and sir Robert Pye dis-
charged by another Privy Seal, 4 Junii follow-
ing. The second instance is of 60,000/. paid to
Burlimach by a Privy Seal, in Sept. 1695.
"Which time they rather noted, because the
parliament at Oxford was broken up a little
before out of discontent that the king was not
supplied for the setting out of the fleet, which
would have been done with a less sum. For
the proof of that the house of commons will
offer to your lordships witnesses.

" The quality of this offence he left to thf-ir

lordships judgment ; yet propounding some

things by way of enquiry from whence it might

- receive measure and proportion. 1. Whether

* it bad not affinity with the crime in the civil

Jaw, called crimen peculatus ; which was when

■ man did unjustly turn to his own use that

money which was either sacra, dedicated to

tou Ik

God's service religiously ; or religiosa, used
about funerals and monuments of the dead ; or
publico, of which kind the matter now in ques-
tion is? And this offence by that law was
death and confiscation of goods and estate.
Which he notes the rather, that their lordships
might perceive, that in the wisest state the
public treasure was held in the same reputation
with that which was dedicated to God and re-
ligion. U. And whether it doth not resemble
another crime in the same law termed crimen
falsi, and is defined to be when a man shall
4 imiiatione veri suum compendium alieuo dis-
4 pendio per dolum facere,' by semblance of
truth make ga'in to himself of other mens
losses : which in the case of a bondman was
death, and in case of another man banishment
and confiscation, or otherwise very penal, as
the judges should find cause of moderation, or
rigor, in the nature and circumstances of the
fact. 3. Whether their lordships will estimate
it according to any sentences in the Star-cham-
ber, winch have been very frequent in cases of
fraud :. or according to the common-law, which
so much detests this kind of dealing, as lhat
they term it Covin, and make it vitiate ordinary
and lawful actions. Or lastly, whether they
will measure it by that judgment which the
duke hath passed against himself in the guilt
of his own conscience ? (direct actions are not
afraid to appear open-faced ; but injustice and
fraud desire to be masked with sub til ty and
closeness.) It were offence enough, if there
were no more but a cunning concealing of un-
thankfulness to hide his majesty's bounty ; or
guilt of un worthiness, as if he durst not avow
the receipt of that which he hath not merited ;
both which proceed from malum culpa, or else
that other kind of guilt which proceeds from
malum pan it, the fear of punishment, foreseeing
this inquisition into his actions, and hoping,
under this disguise of public service, to escape
their lordships censure.

44 The third point in this branch is, That he
hath received sundry sums of money intended
for the maintenance of the Navy ; whereof
there are two instances: the one w hereof is
20,000/. the other of 30,000/. both in Jan.
1624. By Privy Seal, by the which these sums
are issued, they appear to be free gilts: but by
the affirmation of some in answer for the duke,
it hath l»een said, He was only the hand to
convey them to the treasury of the navy If
the truth be according to the Privy Seal, they
are to be added to the former total as parcel
of his own gain: If according to that allega-
tion, it may proie a precedent of greater da-
mage to the king, than the money is worth : fir
by this way his majesty harh no means by
mutter of record to charge the Treasurer of
the Navy with these sums, and may lo»e the
benefit of the act of parliament 13 Kliz. where-
by accomptants land> are made liable to the pay-
ment of their debts to the king, and in many
cases may be sold for his majesty's satisfaction.
The Treasurer of the Navy is a worth v man,
but if he should die, the king loseth the bentfu

4s

1363] STATE TRIALS, JCh. I. 1626— Impeachment qf the D. cf Buckingham, [MM

" The fourth point of this branch is, That he
hath caused so great a mixture and contusion
between the king's estate and his own, that they
cannot be distinguished by the records and en-
tries which ought to be kept for the safety of
bit majesty's treasure, and indemnity of the
subject. This is proved in divers instances,
whereof the last alleged is one, and others
folio w.

" By the wisdom of the law iu the constitu-
tion of the Exchequer, there be three guards
set upon the king's treasure and accompts. The
first is a legal im pignoration, whereby the es-
tates personal and real of the accotnptauts are
made liable to be sold for the discharge of their
debts, which 1 mentioned before, 'lbe second
an apt controlment over every office ; by which
the king relies not upon the industry and ho-
nesty of any one man : but if he fail in either,
it may be discovered by some other sworn to
take notice of it, and either to correct his er-
rors, or amend his faults. The third is a du-
rable evidence and certainty, not for the pre-
sent time only, but for the perpetuity, because
the king can neither receive, or pay, but by
record.

" All these guards have been broken by the
duke, both in the cases next betbre recited, and
in these two which follow. The custom of the
Exchequer is the law of the kingdom, for s<>
mui h as conccmeth the kind's revenue. Every
treat h of a law by a particular otlencc, is pu-
nishable ; but such an oiience a*» this, being de-
structive of the law itself, is of a far higher na-
ture.

" The filth point of this second branch, is
concerning two Privy Seals of Release; the
One 16, the other 20 Jac. wh< reby this duke
is d i ".charged of divers sums secretly received
to his luajestt's use, but by virtue ot thtse re-
leases to be converted to the support of his
own estate. The proof heieof is referred to the
Pi ivy Seals themselves. From which he made
one observation, ot the subtilty he used to wind
bimsejf into (he possession of the king's money,
&nd to get that by cunning steps and degrees,
v.- Inch p«radveuture he could not have obtained
at once. A good master will trust a servant
with a greater sum that is out of his purse,
than he would bestow upon him being in his
purse ; and yet niter it is out of his hands, may
oe drawn more easily to make a release, than
fit first to* have made n free gift. This is a
proper instance to be added t > the proof of the
point of mingling hi* o\\ n estate v> it li the king's;
and of the &atne kind be uther particulars men-
tioned in the schedule, though not expressed in
the charge ; a* yo,uOO/. received in composi-
tion for the earl of M. his line, which cannot
be discovered whether part or all be converted
to the duke's benefit, and yet it appears by a
private seal to be clearly intended to the king's
own service for the hou»hold and wardrobe, till
by the duke's practice it was diverted into this
close and by-way.

" Another instance iu this, is, his endeavour
to get the money whicji should be made of Prize

goods into his own hands; and for this purpose,
he first laboured to procure that his man Ga-
briel Marsh might receive it ; and wlttn it was
thought tit some partner should be joined with
him, trial was made of divers, but uot>e ot say
credit would undertake the charge with suck s
consort. And the commons have reason to
think there was good cause of this refusal ; for
he is so ill an accomptant, that be confessed ia
their house (being examined) that by authority
from the duke he received divers bags of gold
and silver out of the St. Peter of^eahaien,
which he never told.

" When this practice of employing bis own
man would take no effect, then he procured a
commission from sir William UusseH, who is in-
deed without exception an able and worthy
officer ; but that is not enough for the king^i
security ; for however he was to receive tbe
money, it was to be disbursed by and to tat
duke's warrant and profit. Which clause had)
been altered since this was questioned in par-
liament ; and now it is to be issued from an is*
mediate warrant from his majesty : but as it
was before, it may be noted as an locroachamt
upon the othce of my Lord Treasurer, whereby
he might make a more easy way, to some si*
nister end of bis own; so that upon the matter,
sir William was but a safeguard of the money
for the duke himself. And tbis 1 must note ot
some guilt in the very act of it.

" The last point upon this whole Cliargt,
was a reduction of the value of the land, toge-
ther with the money into one total, and to that
purpose he rated the land, being valued at s
reasonable value, at 40 years purchase ; for sl>
though some of it was sold for SO, yet a treat
part was worth more than 100 years purchase,
so as 40 years is conceived to be an easy me*
dium ; at this rate, 3,035/. amounteth ti
IV 1,400/. which being added to the total of the
money received, 162,995/. both together make
the sum of 284,395/. besides tbe forest of Let-
field, and besides the profit made out of tbe
thirds of strangers goods, and the moiety of the
profit made out of the customs of Ireland.

" This is a great sum in itself, but modi
greater by many circumstances ; if we look upon
the time past, never so much came into any
pr vale man's hands out of the public pane;
if we respect the time present, the king newer
had so much want, never so many foreign occa-
sions, important and expensive ; the subjects
tiave never pven greater supplies, and yet thost
supplies unable to furnish these expences. Bat
as tfie circumstances make the sum greater, so
there be other* circumstances which make it
less, if it be compared with the inestimable
gain he hath made by the sale of honours ine1
offices, and by projects hurtful to the state, born
of Kn»]and and Ireland ; or if it be compares'
to his profusion, it will appear but a little sua.
All these gifts, and other ways of . profit, not-
withstanding he confessed before both bouses
of parliament, that be was indebted lOOvOOui
If this be true, how can we hope to satisfy nil
prodigality ? if false, bow can wt hops to <

1365] STATE TRIALS, 2 Ch. I. 1620.— Me Earl qf Bristol, and Lend Conway. [13G6

bis covetousuess ? and therefore their lordships
need not wonder, if the commons desire, and
that earnestly, to be delivered from such a
grievance.

•' I hat this complaint and proceedings of
theirs may appear to be suitable to the proceed-
ings of their predecessor* in like casts ; he al-
ledged three precedents, which he said were
precedents in kind, but not in proportion, be-
cutis*, there hath never been the like. The Hist,
10 It eh. 2, in the complaint against Michael
de la Pool, carl of Suffolk ; out of which lie
took three Articles: the first. That being chan-
ctllor, a..d sworn to the king's profit, lie had
purchased divers land* from the king, more
than lie had deserved, and at under rate ; yet
this was thought to he an offence against the
state. — The second, That he had bought of one
'J'ydmaii an annuity of 600/. per annum ; which
grunt was void by the laws, yet he being chan-
cellor, procured the king to make it good by a
new grunt, upon surrender of the old. This
was com plained of fn parliament, and there
punished. — The third, Whereas the master of
St. Anthony's, being a schismatic, had forfeited
his possessions into the king's hand; this earl
took i hern in farm nt 50 marks a year, convert-
ing tlie overplus, which was 1,000 marks, to his
own profit, which would have come to the king.
—The next precedent, 11 Rich. 2, in the Judg-
ment against Robert de Vere of Oxford, and
others; out of which he took two Articles, the
fifth and seventh: the fifth was for taking ma-
nors and lauds annexed to the crown, whereby
they tlietnselves were enriched, and the king
Tnade poor. The seventh was for intercepting
the subsidies granted for the defence of the king-
dom.— The third precedent is that of 28 Hen.
6, in the Pniliamrnt Roll, out of the complaint
against William de la Pool, duke of Suffolk,
article 29. That he being next and primest of
council to the king, he had procured him to
grant great possessions to divers persons, where-
by the king was much impoverished, the ex-
pence of his house unpaid, wages, wardrobe,,
■castles, navy, debts, unsatisfied ; and so by his
subtle counsel, and unprofitable, labour, the re-
venues of the crown, and the duchy of Lnncas-
ter, and other the king's inheritances, so much
diminished, and the commons of the kingdom
to extremely charged, that it was near to a final
destruction. The fourth was. That the king's
treasure was mischievously distributed to him-
self, his fiicuds and Wcllwillers; so that for
lack of monies, no army, nor ordnance, could
be provided in time ; and because these great
persons were not brought to judgment upon
these articles alone, but for other misdemean-
ors, he made this observation, I hut rav-mng
upon the king's estate, i-> always account < d with
other great faults that deserve judgment."

Tlien he* said, he had done with that which
had been left t<> him ; and so he left the duke
to their lordships' justice, That as he had ex-
ceeded oi Iters in this offence, so lie migh' not
come behind them in punishment. And so tie
Jsuubiy desired their lordships to be pleased to

pardon his delivery, and to give a favourable
censure of him.

The Thirteenth Article enlarged by Mr. Wan-

desford.

Lastly, The Thirteenth Article was read.

Mr. Wandesfurd, .deputed to enlarge and ag-
gravate upon the Thirteenth Article, com-
mended the charity and providence of that law,
which makes it penal for unskilful empirics,
and all others, to exercise and practise physic
upon common persons, without a lawful calling
and appiobation, branding them who thus trans-
gress as ' improlos, ambitiosos, temirarios,
4 (t audaces homines:1 But he that without
skill and calling shall direct u medicine, which
upon the same person had wrought bad effects,
enough to have dissuaded a second adventure ;
and then when physicians were present, physi-
cians selected 'for learning and art, prepared by
their office and oaths, without their consent,
nay, even contrary to their direction, and in a
lime unseasonable; he must needs (said he)
be guilty, alb.c it towards a common person, of
a precipitate and unadvised rashness, much
more towards his own sovereign. And so
pious are ourselves to put the subjects in mind
of their duty towards their princes, persons so
snertd, that in the attempt of a mad-man upon
the kiug, his want of reason, which towards any
of his fellow subjectsmight acquit him of felony,
shall not excuse him of treason. And how
wary and advised our ancestors have been not
to apply things in this kind to the person of a
king, may appear by a precedent, 32 11. 6, where
John Arundel, and others the king's physicians
and chirurgeons, thought it not safe for them
to administer any tiling to the kiug's person,
without the assent of the privy council hrst ob-
tained, and express licence under the great seal
of England.

" This medicine found his majesty in the de-
clination of his disease, (and we all wish it had
left him so) but his better days were shortly
turned into worse ; and instead of health and
recovery, we hear, by good testimony (that
which troubles the poor and loyal commons of
England) of great distempers, as droughts,
raving, fainting, an intermitting pulse, strange
effects to follow upon the applying of a treacle
plaister. But the truth is, testimony tells us,
that this plaister had a strange . smell, and an
infective quality, striding the malignity of the
disease inward ; which nature otherwise might
have expelled outward. Add to thi* the drink,
twice given to his majesty, by the duke his own
hands, and a third time refused, and the follow-
ing complaint of that blessed prince, the physi-
cians telling him, to please him for the time,
That his second impairment was from cold
taken, or some other ordinary cause : ' No, no,9
said his majesty, * it is that which I had from
* Buckingham.' And though there be no pre-
cedent (said he) of an act offered to the person
of a king, so in-olent as this; yet it is true, that
divers persons as treat as this, have been ques-
tioned and condemned for less offences against

1367] STATE TRIALS, 2 Ca. 1. \6M.— Impeachment qfthe D. qf Buckingham, [1369

the person of their sovereign. It was an Arti-
cle amongst others laid against the duke of
Somerset, for carrying Edward the sixth away
in the night time, out of his own head, but from
Hampton-Court to Windsor ; and yet he was
trusted with the protection of his person. Pre-
cedents failing us in this point, the common law
will supply us. The law judgeth a deed done
in the execution of an unlawful act, man-
slaughter, which otherwise would but have been
chance-medley ; and that this act was unlawful,
the house of commons d<# believe, as belonging
to the duty and vocation of a sworn and ex-
perimented physician, and not the unskilfulness
of a young lord. And so precious are the lives
of men in the eye of the law, that though Mr.
Stanford taitb, If a physician take one into hij
cure, and he die under his hands ; it is not
felony, because he did it not feloniously. Yet
it is Air. Bructon's opinion, That if one that is
no physician or chirurgeon undertake a cure,
and the party die under his hands, this is felony.
And the law goeth further, making physicians
and chirurgeons themselves accountable for
the death of their patients, if it appear they
have transgressed the rules of their own art ;
that is, by undertaking a thing wherein they
have no experience, or having yet failed in their
care and diliuence.

tf Lastly, he said, He was commanded by
the house of common4, to desire their lordships,
thnt seeing the duke hath made himself a prece-
dent in committing that winch former ages
knew not, thejr lordships will, out of their wis-
dom and justice, make him au example for the
time to come."

Sir John Elliot's Speech concluding the Duke's

Impeachment.

The several Articles being thus enlarged and
aggravated by the said respective members, sir
John Elliot was appointed to make the Epilogue
to the Impeachment, who spake thus :

" My lords ; Your lordships have heard, in
the labours of thej-e two days spent in this ser-
vice, a representation from the knights, citizens
and burgesses of the commons house of parlia-
ment, of their apprehension of the present evils
and dangers of this kingdom ; of the causes of
the same ; and of the application of them to
the duke of Buckingham, so clearly and fully,
as I presume your lordships expert I should
lather conclude, than add any thing to his
Charge. — Your lordships have heard how his
ambition was expressed in procuring and getting
into his hands the greatest offices of strength
and power of this kingdom ; by what means he
had attained them, and how money stood for
merit. — There needs no argument to prove this,
hut the common sen*e of the miseries and mis-
fortunes which we s ufter ; adding but one, the
regality of our narrow seas, the antient inhe-
ritance of our princes, lost or impeached.

" This I need not further to press, but from
hence my observation must descend to his other
virtues, and that by way of perspective : I shall
gir % it so near and short, as rather to exercise

your lordships memory, than to oppress your
patience.

" First, I propose unto jour lordships, the
inward character of the duke's mind, which ii
full of collusion and deceit ; I can express it
no better than by the beast, called by the
antieuts SteiUonatus ; a beast so blurred, »
spotted, so full of foul lines, that they knew
not what to make of it : so do we find in this
man's practice, who first inviegled the mer-
chants, drawing them to Diep to be inthralled;
then dealt deceitfully with the king to colour
his offences, his design being against Rocbd
and the religion : Next with the parliament, tt
disguise his actions; a practice no less dan-
gerous and disadvantageous to us, than preju-
dicial to our friends and allies.

" Next, I present to your lordships, the duke'i
high oppression, and that of strange latitude
and extent, not to men alone, but to laws, and
statutes, to acts of council, to pleas and decree!
of court, to the pleasure of his majesty, all must
stoop to him, if they oppose or staud in his
way. This hath been expressed unto you ia
the ship called the St. Petei, and those of
Diep ; nay, he calls on the colour of lus tuajes*
ty's great name to shadow his design.

"It had been his duty, nay, the rest of the
place, not to have translated them iuto the
hand of strangers ; that had his majesty yielded
in that point, the duke should have opposed it
by his continual prayers and intercessions!
making known unto his majesty the inconveni-
ences hkely to ensue, and not to rest there,
but to have reported it to your lordships sitting
in council, to have desired and prayed your aid
and assistance, in a matter of so great import-
ance : And if this had failed, he should hire
entered into a protestation against it. Tha
hath been done by worthy predecessor* in thai
ofiice, and this hath been the worthy discharge
of the great trust reposed in his place. I
heard the ships were returned, but I know it;
but if I knew so, this neither excu^eth, uor
qualifieth the duke's offence. The French ia
this case are to be commended, not he excus-
ed ; he left them in the hands of a foreigt
power, who when they once had them, for any
thing he knew, might easily have kept them.

" The third head is, The duke's Extortion*
in exacting from the East-India Compauy,
without right or colour, 10,000/., exquisitely
expressed, and mathematically observed by the
gentleman, you know by whom employed,
who, by his marine experience, learned thi> ob-
servation, That if the fleet gained not the wind
by such a time al the Cape, the vovage was
lost."—

Here one of the lords interposing privately,
' It was the king that employed him ; sir John
Elliot, in the name of the commons, makes this
Protestation :

" Far be it from them to lay an odium or
aspersion on his majesty's name; they hold oil
honour spotless, nor the least shadow of blemisb
can ax upou him in this busiaesa, Next to tat

1369] STATE TRIALS, 2Cn\I. 1G20.— *fc Earl qf Britfof/iiwf Laird Comxxy. [I97H

likened ; I can hardly find him a match or pa-
rallel in all precedents ; none so like him asSe-
janus, who is thus described by Tacitus, ' Au«
' dax, sui obtegens, in alios criminator, juxta
' adulator et superbua.'

" To say nothing of his veneries, if yoa
please to compare them, you shall easilv discern
wherein they vary ; such boldness of the one
hath lately been presented before you, as very
seldom or never hath been seen. For his se-
cret intentions and calumniations, I wish this
parliament had not felt ihem, nor the other be-
fore. For his pride and flattery, it is noted of
Sejanus, that he did, ' Clientes suos provincial
' adornare.' Doth not this man the like? Ask
England, Scotland, and Ireland, and they will
tell you. Sej anus's pride was so excessive, as
Tacitus saith, He neglected all council, mixed
his business and service with the prince, seem-
ing to confound their actions, and was often
stiled ' Imperatoris laborum socius.' How
lately and how often hath this roan commixed
his actions in discourses with actions of the
king** ?

" My lords, I have done, you see the man ;
only this which was conceived by the knights,
citizens, and burgesses, should be boldly by me
spoken, That by him came all these evils, itt
him we find the cause, and on him we expect
the remedies, and to this we met your lord-
ships in conference ; to which, as your wisdom
invites us, so we cannot doubt, bat in your
lordships wisdom, greatness and power, we
shall, in due time, find judgment as he deserves.

" I conclude, by presenting to your lordships
the particular censure of the bishop of Ely, re-
ported in the 11 Rich. 1, and to give you a
short view of his faults. He was first of all
noted to be luxurious ; Secondly, He married
bis own kindred to personages of highest rank
and places; Thirdly, no man's basinets was
done without his help ; Fourthly, he would
not suffer the king's council to advise in mat-
ters of state ; Fifthly, he grew to such a heighth
of pride, that no man was thought worthy to
speak unto him ; And lastly, his castles and
forts of trust, he did * ohscuris et iguotis homi-
' nibus tradere.' His doom was this, ' Per to-
' turn insulam publice proclamatur, periat qui
' perdere cuncta festinat, oppriniatur ne omnei
' oppriinat/"

foul extortion, is Bribery and Corruption in the
•ale of Honour and Unices of Command. That
which was wont to be the crown of virtue and
merit, is now become a merchandize for the
greatness of this man, and the justice itself
made a prey unto him. All which particulars
your lordships have heard opened, and enforced
with reasons and proofs, what in themselves
they are ; and therefore I spare further to press
them.

" In the fifth place, I observe a wonder in
policy and in nature, how this man, so notori-
ous in evil, so dangerous to the state in his
immense greatness, is able to subsist of him-
self, and keep a being : To this I answer, That
the duke hath used the help of art to prop him
tip : It was apparent, that by his skill he hath
raised a party in the court, a party in the coun-
try, and a main party in the chief places of
government in the kingdom : So that all the
most deserving offices that require abilitier. to
discharge them, are fixed upon the duke, his
allies and kindred. And thus he bath drawn
to him and his, the power of justice, the power
of honour, and the power of command, and, in
effect, the whole power of the kingdom, both
for peace and war, to strengthen his allies;
and in setting up himself, hath set upon the
kingdom's revenues, the fountain of supply, and
the nerves of the land.

" He intercepts, consumes, and exhausts
the revenues of the crown, not only to satisfy
his own lustful desires, hut the luxury of others ;
and by emptying the veins, the blood should
.run in, he hath cast the body of the kingdom
into an high consumption. Infinite sums of
money, and mass of land, exceeding the value
of money, contributions in parliament have
been heaped upon him, and how have they
been employed ? Upon costly furniture, sump-
tuous feasting, and magnificent building, the
visible evidences of the express exhausting of
the state; and yet his ambition, which is
boundless, resteth not here, but, like a violent
flame, bursteth forth, and getteth further scope :
Not satisfied with injuries, and injustice, and
dishonouring of religion, his attempts go higher,
to the prejudice of his sovereign, which is
plain in his practice. The effects I fear to
apeak, and fear to think. I end this passage,
as Cicero did in a like ense, * Ne graviorihus
• utar verbis quam rei natura fert, aut levioribus
' quam causae necessitas postulat.'

" Your lordships have an idea of the man,
what he is in himself, what in his affections.
You have seen his powerxand some, I fear,
have felt it ; you have known his practice, and
have heard the effects. It rests then to be
considered, what, being such, he is in reference
to the king and state ; how compatible or in-
compatible with either? In reference to the
king, he must be stiled the canker in his trea-
sure ; In reference to the state, the moth of all
goodness. What future hopes are to he ex-
pected, your lordships may draw out of his ac-
tions and affections ; I will now see, by com-
panion with others* to what we may find him

The Duke of Buckingham charges sir Dudley
Diggs with treasonable Words at the fore*
going Conference.

After the Report of the Duke's Charge was
made to the lords, hi& grace rose up and affirm-
ed to the house, '* That some Words were
spoken at the late Conference by sir Dudley
Di^gs, which so far trenched on the king's ho*
nour, that they were interpreted treasonable.
And that, had he n<>t been restrained by the
order of the hou«e, he would hate reprehended
him for them. He, therefore earnestly desired,
because that divers constructions had been
made of tho«e Words, and variously reported,
that the eight lords would be pleased to pro-

duce their Notes taken at the slid confer-

1S71] STATE TMALS, 2Ch. I. 1026.— Impeachment qftke D. qf Buckingham, [1373

- " That since the time of Henry the 6th,
these parliamentary discoursing? might never bs
suffered, as being but certain symptoms of sub-
sequent rebellious, civil wars, and the dethron-
ing our kiug, and no one patriot daring to op-
pose them, lest he- incur tlie reputation of a
tool or coward in his country'* cause. — Hii
majesty therefore strengthened lumself ever
with some favourite, as whom he might better
trust, than -many oi' the nobility, tainted wits
this desire of oligarchy.

" It behoveth, without doubt, his majesty, to
uphold the Duke against tbeni, who if he be
decourted, it will be tl»e corner-stone, on which
the demolishing of his monarchy wdl be build*
ed : for if they prevail with ibis, tbey have
hatched a thousand other demands to pull the
feathers of royalty. Tbey will appoint hin
counsellors, servants, alliance*, limits of ex-
pences, and accompts of his revenues ; chiefly
if they can, they will now dazzle him in the be*
ginning of his reign.

" Lastly, king James and king Charles an
the duke's Accusers, in all the aspersions that
arc laid upon him. King James, for the money
destined for the wars in this time, spent in
treaties, &c. And his majesty can testify for
the things done in his time. And all these,
though actions of the king, are imputed to the
duke : who, if he suffer lor obeying his sotre*
reign, the next attempt will be to call the king
to account fur any tiling lie undertakes, whica
doth not prosperously succeed, as all men
would desire it.

" If it pleases his majesty to remove and set
aside all these disadvantages, lie shall find the
charge against the duke very empty, and of
small moment: and if hi) majesty nnd thedake'i
grace think it no impeachment to their honour?,
all that the parliament hath objected against
the duke, except two or three t lungs that may
receive an answer, is pardoned at the king*
coronation, which benefit every poor subject
enjoyed)."

cnoe.

This motion occasioned a long debate, the
bouse being often put into a committee and
resumed again, till, at last, 30 lay-lords and 6
bishops, though there was no order for it, made
* voluntary Protestation, upon their honours,
" That the said sir Dudley Diggs did not speak
any thing at the said Conference, which did or
might trench upon the king's honour; and, if
be had, titey would presently have reprehended
him for it." — The lord president, the earl of
Manchester, affirmed, That he had reported
the words in the same sense they were deliver-
ed unto him by the party himself; and, though
the dislocation of them required to be explain-
ed, yet he agreed with the rest of the lords for
the party's good meaning, and made the same
protestation. Some other lords affirmed, They
did not hear them at all ; others said, They
would make no Protestation until they were
commanded by order ; and only one, the earl
of Holland, thought the words were fit to be
explained and the party questioned about
them.

Sir John Elliot and sir Dudley Diggs committed

to the Tower.

Sir Dudley Diggs having made the prologue,
and sir John Elliot the epilogue, in the im-
jteachincnt of the duke, they were both by
the king's command committed to the Tower.

Private Suggestions to the King, in behalf of

the Duke.

Upon the Impeachment of the duke, a Paper
was privately conveyed to the king, importing,

" That this great opposition against the
Duke, was stirred up and maintained by snch
as seek the destruction of this free monarchy.
Because they find it not yet ripe to attempt
against the king himself, they endeavour it
through the sides of the duke. The persons
agreeing in this one mischief, are of divers
sorts and humours. 1st, meddling and busy per-
sons, who love popular speeches : 2. covetous
landlords, iurlosers, depopulators, ccc. who be-
ing of the parliament, ease themselves in Sub-
sidies, and lay it on die true commons, and cry
out, the Grievance* are caused by the duke.
Sdly, Kecu^ants, wlu hate the duke for the
breach of the Spanish match. 4thly, persons in-
debted, who, by privilege of parliament, avoid
payment. 5th ly, puritans and sectaries, though
two of them sc 'icely agree in what (hey would
bave : haters of government, and would have the
king's power extinguished in matters ecclesias-
tical, and limited in civil. 6thly, male contents,
who look upon the duke with an tvil eye, he-
cause themselves are not pieferred. 7thlv,
lawyers, who an* very fu in parliament* to se-
cond any complaint «e oust both church and
ing, aud ull his servants, with their customs,
antiquities, records, >t.itufcs, precedents, nnd
Stories. 8thly, merchants and citizens, who de-
ceive the king of custom. 9thly, innovators,
plehicola.

The King's Speech concerning die Duke.

May 11. The King came to the parliament,
and spake to the house of peers, as tulhmeth:

" My lords; The cause, and only cause of
ray coming to you tliis day, is to express the
sense 1 have of all your honours ; for he that
toucheth any of you, toucheth me in a very
treat measure. I have drought fit to take or-
der for the punishing some insolent Speech**
lately spoken. 1 have been too remiss here-
tofore in punishing such Speeches as concern
myself; nut that I was greedy of their monies,
but that Buckingham through lii- importunity,
would not suiter me to take notice of them,
lest he might be thought to have set me no,
and that he might come the forwarder to ha
Trial. And to approve his innooency, as
touching the matters against him, 1 myself can
be a witness to clear him in every one of then.
I speak not this to take any thing out of voaf
hands ; but to shew the reason why 1 0***
not hitherto punished those insolent spttdM

against myself. And now I hope you will be i
as tender of my honour, wheu time »hall serve,
as I have been sensible oi 'joins/'

And so his majesty was pleased to depart.

The Commons' Message to secure the Duke.

The same day this following Message wet
brought from the commons to the lords, by sir
Nathanael Rich :

" The commons taking into serious considera-
tion i he main mischiri'* and inconveniences
which this renowned kingdom dotli now suffer,
threatening apparent dui.ger to the king and
common* en Uh, have by search and disquisition
into the causes thereof, found that they ilo prin-
cipal 1> flow from the exorbitant power, and
abusive carriage of the duke of Buckingham,
whereof he hath this parliament tetn im-
peached before their lordships by the commons,
Decides an accusation of u peer in their own
house, who hath charged him (as they are in-
formed) of High Treason : they thi retore with
one voice make an entire Declaration, That
they bold it a thing of dangerous consequence
both for the present and future timet*, tliat a
man of so great eminence, power, and autho-
rity, being impeached and accused of such hL-h
crimes and offences, should yet enjoy his
liberty, hold so great a part of the strength of
the kingdom in his hand*, sit as » peer iu par-
liament, and be acquainted with the counsels
thereof, whereby inevitable rois'.hie'f may sud-
denly fall upon the kingdom. Wherefore they
have thought it their duty, to recommend this
their ununimous desire to their lordships, as
agreeable to law and reason, That they would
be pleased forthwith to commit the person of
the said duke to safe custody."

The Duke's Speech against the Commons.

Whereupon, the Duke made this Speech in
the Lords House :

" My lords ; If I should hold my peace, it
would argue guilt ; if I should speak, it would
argue boldness, being so foully accused. Your
lordships see what complaints are made against
me by the bouse of commons. How well 1
stood in their opinions not long since, your
lordships know it. What I have done since to
lose their good opinions, I protest 1 know not.
I cannot so distruct my own innocency, and
my heart which abhor* guilt, as to decline any
course, or court of justice : and had they not
brought my cause to your lordships, it should
have been my own work; and they have done
me a favour to deliver me out of their hands,
into your lordships.

44 1 will not speak any tiling to cant dirt ar
those, who had taken pains to make roe so
fool; but to protest my innocency in that mea-
sure, which 1 shall ever hope to prove, it being
before Mich just judges. I desire my t rial may
be hastened, that 1 may no longer suffer than 1
man needs. And now that my accuser hath
aot been content only to make my process, but
to prescribe to your lordships the manner of
jour judgment, and to judge no before I am

he Earl <f Bristol, md Lord Cotmq. [1914

heard, I shall net give way to any of their an*
just demands, &c.

The Commons resent the Imprisonment of thcif

Members.

The Commons, up* n the imprisonment of
their Members, and the offence taken by the
king at the words spoken by those two gentle*
men in impeaching the duke, resolved to pro-
ceed in no other business, til) they \\ ere righted
in their Liberties, and ordered, 'I hat the house
be turned into a Grand Committee presently,
to sit and consider of the best witys ai d means
to effect the same, and that no member be
suffered to go forth.

Sir Dudley Carlton's Speech on that occasion.

At which time, sir Dud lev Car h on observing
that unusual, and as he termed it, sullen silence
of the hoot*, made this Speei h :

" I find (by a great silence in ibis house) that
it is a fit time to be heard, if yon please to give
me the patience. I msy very fitly compare the
heaviness of this boose unto some of my mis*
fortunes by sea jp my travels : for as we were
bound unto Merseillis, by oversight of the
mariners we mistook our course, and by ill for-
tune met with a sand ; that was no sooner
over past, but we fell on another ; and baring
escaped this likewise, we mef with a third, and
in that we stuck fast. All of the passengers
being much dismayed by this disaster, as now
we are here in this house for the lot* of those
two members : at last, an old experienced ma-
riner, upon consultation, affirmed, that the
speediest way to come out from the sands, was
to know .how we came there ; so, well looking
and beholding the compass, he found by going
iu upon such a point, we were brought into
that straight; wherefore we must taken new
point to rectify and bring us out of danger.

" This house of parliament muy be compared
to the ship; the sands to our messages; and
tie commitment, to the sands that the ship
did stick nut in ; and lastly, the compass, to
the table where the I ook of orders doth lie.
Then, I beseech you, let us look into tne bpok,
« here the orders are, whether the gentlemen
did go no farther than the order did warrant
them. If they did not, it is fit that we should
defend them whom we employed in rnr be-
hests r but if they hate exceeded their com-
mission, and delivered thut which they had not
»:irrant forf it is just thut we let them suffer for
this presumption ; and this our course wiU
bring us from these rocks.

" I beseech you, gentlemen, move not hit
majesty wiih trenching upon his prerogatives,
lest you bring him out of love with parliaments.
You have heard his majesty's often ntessaget
to you, to put you forward in a course that will
be most convenient. In those messages he
told you. That if there were not correspondency
between him and you, be should be inforcedto
use new counsel*. Now, I pray you, consider
what these new counsels are, and may be : I
fear to declare those that I conceive. In aB

Christian kingdoms, you know that parliaments I
were in use antiendy, by which their kingdoms I
were governed in a most flourishing manner,
vntil the monarchs began to know their own
strength, and seeing the turbulent spirit of their
parliaments, at length they, by little and little,
began to stand upon their prerogatives, and at
last overthrew the parliaments throughout
Christendom, except here only with us.

" And indeed, you would count it a great
misery if you knew the subjects in foreign coun-
tries as well as myself; to see them look, not
like our nation, with store of Aesh on their
backs, but like so many ghosts, and not men,
being nothing but skin and bones, with some
thin cover to their nakedness, and wearing only
wooden shoes on their feet ; so that they can-
not eat meat, or wear good clothes, but they
musPpay and be taxed unto the king for it.
This is a misery beyond expression, and that
which yet we are free from : let us be careful
then to preserve the king's good opinion of par-
liaments, which bringeth this happiness to this
nation, and makes us envied of all others, while
there is this sweetness between his majesty and
his commons; lest we lose the repute of a
free-bom nation, by turbulency in parliament.
For, in my opinion, the greatest and wisest part
of a parliament are those that use the greatest
silence, so as it be not opiniatory, or sullen, as
now we are by the loss of these our members
that are committed.

" This good correspondency being kept be-
tween the king and his people, will so join their
love and favour to his majesty with liking of
parliaments, that his prerogative shall be pre-
served entire to himself, without our trenching
upon it ; and also the privilege of the subject
(which is our happiness) inviolated, and both
be maintained to the support of each other.
And I told you, if you would hear me pati-
ently, I would tell you what exception his ma-
jesty doth take at those gentlemen that are
committed. You know that eight members
were chosen to deliver the charge against the
duke, but there were only six employed for
that purpose ; insomuch that there was no
exception.

u As for sir Dudley Diggs his part, that was
the Prologue, and in that his majesty doth con-
ceive that he went too far beyond his commis-
sion, in pressing the death of his ever blessed
father in these words, « That he wbs com-
manded by the house, concerning the Plaister
applied to the king, That he did forbear to
speak further in regard of the king's honour/
or words to that effect ; this his majesty con-
ceit oil) to be to his dishonour, as if there had
bee. i any under-hand dealing by his majesty,
in applying of the plaister, and this may make
his subjects jealous of his doings : in this point
his majesty is assured, that the house did not
warrant him. Now, for that which is excepted
©gainst sir John Elliot, his over bitterness in
the aggravation upon the whole Charge, and
specially upon some of the heads of it : for, if
you please to remember, when I moved for

'mpcachmenl qftheD.qf Buckin&am, [1376

putting of the St. Peter of Newhaven out of
the Charge against the duke of Buckingham,
and shewed my reasons for that purpose, yoa
know how tender sir John Elliot was of it, u
if be had been a child of his own, and so carerel
in the handling thereof by a stranger, that he
would not suffer it to be touched, tliough with
never so tender a hand, for fear it may prove a
changeling : which did manifest, how specious
soever his pretences were, that he had oeulum
in cauda : and I must confess, I was heartily
sorry when he delivered his aggravation to the
Lords, to see his tartness against the duke ;
when as he had occasion to name him, he only
gave him the title of * This man,' and 'The
man ;' whereas the other observed more respect
and modesty in their Charges against so great
a person as the duke is, considering, that then
he was not convicted, but stood rectut in cu-
ria. Lastly, for pressing the death of his latt
majesty, you know that the sense of the boost
concluded, That it is only an act of presump-
tion ; nay, some of them expressly said, * Nay,
God forbid that I should lay the death of the
king to his charge/ If he without warrant
from the house, insisted upon the composition
of the plaister, as if there were ' Aliquid latt
' quod non patet ;' this was beyond his com-
mission from our house, and this is that which
his majesty doth except against ; and this I say,
drew his majesty, with other insolent invective%
to use his regal authority in committing them
to the Tower.

The Commons* Protestations touching words
imputed to sir Dudley Diggs.

Sir Dudley Diggs being charged for saying k
the matter of applying the Plaister to his latt
majesty, ' That be did forbear to speak further
' of that in regard of the king's honour/ or
words to that effect ; there passed a Protes-
tation of every man in particular for himself;
and it was ordered in the house, That they that
were sick in the town, should have three of the
house sent to them to take this Protestation
likewise :

' I protest before Almighty God and tint
' house of parliament, That I never gave coo-
' sent that sir Dudley Diggs should speak the*
' words that he is now charged withal, or any
' words to that effect ; and I have not affirmed
' to any that he did speak such words, or any
' to that effect.'

Sir D. Diggs released out of prison, protests bl
never spake the Words charged on him.

Within few days after, sir Dudley being re-
leased out of prison, came into the house, and
made Protestation concerning the passage
whereat his majesty had taken offence; that
speaking of the plaister applied to the body
of the late king, he said, ' He would forbev
* to speak any further of if, in regard of the
' king's honour/ he protested, that this was far
from his words, and tliat it never came into nil
thoughts. And he gave the bouse great chanb
for their respect unto him, and said, that hi

1377] STATE TRIALS, 2 Ch A: 1626^ht Earl tf Bristol, and Lord Conwy. [137S

had received from his majesty a gracious testi-
mony of his satisfaction.

And the king himself signified) to the house
by the Vice-Chamberlain, That he understood,
out of some Notes which were taken at the
Conference, that sir Dudley J)iggs had spoken
the words wherewith he was charged, but now
was satisfied that he did not speak them, nor '
any words to such effect: nevertheless, the
Duke affirmed to the house of peers, that some
words were spoken at this late Conference by
sir Dudley Diggs, which so far did trench upon
die king's honour, that they are interpreted
treasonable ; and that (had he not been re-
strained by order of the house) he would then
have reprehended him for the same : he there-
fore earnestly desired, for that divers construc-
tions have been made of those words, and for
that they have been diversly reported, that
every one of the said reporters would be pleased
to produce their notes taken at the conference.

This matter was much debated, and the
house of peers often put into a committee, and
reassumed again, but they came to no resolu-
tion therein. In fine, 36 lords made this volun-
tary Protestation upon their honours ; " That
the said sir Dudley Diggs did not speak any
thing at the said conference, which did or might
trench on the king's honour; and if he had,
they would presently have reprehended him
for it."

The Lord President affirmed, That he bad
reported the Words in the same sense they were
delivered unto him by the party himself, and
though the connexion of them require to be
explained, yet he agreed with the rest of the
Jords, for the party's good meaniug, and made
the same Protestation.

Sir John Elliot released out of the Tower.

Not long after, sir John Elliot also was re-
leased out of the Tower, and sent for to come
into the bouse. Then the Vice-Chamberlain
stood up, and by way of explanation of his
former speech, said,

" That he intended not to charge him, but
to give him an occasion to discharge himself.
1st. That all the others had used respective
words in the conference; but for the manner
of his speech, he conceived it was too tart and
harsh to the person of the duke, and that in re-
presenting a character of his mind, by compar-
ing him with a strange beast, he had out-gone
his commission. 2dly. That contrary to the
sense of the bouse, as if they were ignorant
of the return of the ships out of France, he
•aid, ' They say they are come, but I know it
not ;' when the house knew it full well. That
speaking of the duke, he said, * That man/
which phrase in all languages, is accounted a
great indignity to persons of honour : That he
made scandalous comparisons between the
duke and Sejanus, and the bishop of Ely, which
was likewise besides his charge : That he brake
off ambiguously and abruptly with a. sentence
of Cicero, as it something else might be which
was not yet discovered/'

VOL. u.

Sir John Elliot thanked the Vice-Chamber*
lain for dealing so plainly with him, and giving
him occasion to clear himself: and to the par-
ticulars charged against him, he answered, 1.
*' Considering the duke's plurality of great and
d liferent offices, together with his deceit and
fraud, in persuading the merchants to go to Diep,
there to entrap them ; in colouring the designs
to the king, which he had plotted to* serve
against those of his religion; in abusing the
parliament at Oxford; and disguising his pur-

5ose, as if the ships were to go to liochcl.
'uese particulars being so various, and of such
a nature, he called by the name of Siellionatus,
from a beast discoloured, uncertain and doubt-
ful, that they knew not by what name to call it,
or by what colour to describe it ; and these he
called a character of the mind, because they lie
in the heart, and were deceits to abuse the
king and parliament. 2. As to his saying,
4 He knew not the ships were 'come;* he an-
swered, he did not know it then, and as yet he
knew it not, though it was true that he' heard
it. 3. He denied not, that speaking of the
Duke, be sometimes used this word, ' that
man,' though at other times he was not want-
ing to give him his due tides ; and said, That
the Latines, speaking of Caesar, called him
' Ille Caesar,* and that the same is usual in all
languages; nor did he think the duke to be a
God. 4. He confessed, That he paralleled him
with the bishop of Ely and Sejanus; and though
there were many particular censures of (hat
bishop, yet he produced none but such as were
within the compass of his charge; nor did he
apply the veneries and venehecs of Sejanus to
the duke, but excluded them. Lastly, touch-
ing the Physic of the king, he said, he brake
off so abruptly in aggravation of the dune's Of-
fence, who, not content with the injury of jus-
tice, the wrong of honour, the prejudice ot the
state, nor that of the revenue, his attempts go
higher, even to the person of the king, making
on that his practice in such a manner, to such
an effect, that he said, be feared to speak, nay,
he doubted to think; in which regard he left
it, as Cicero did another thing, ' Ne graviori-
bus, &c."

It was then resolved on the question, That
sir John Elliot hath not exceeded the commis-
sion given' him in an v thing that passed from
him, in the late conference with the lords;
the like for sir Dudley Digg*, both pushed with-
out a negative: the like vote did pass lor Mr.
Selden, Mr. Herbert, Mr. Gluuvile, Mr. Sher-
land, Mr. Pyiu, and Mr. Wandesford, who
were also managers at that Conference.

On May 2ti, the Lord Keeptr having deli-
vered this Message trim the kiiiLS viz. " That
his majesty hath wilhd him to signify unto
their lord-hips, that he doth marvel Lis mean-
iug in his last Answer, about lord Arundel's
imprisonment, should be mistaken : and for the
better clearing of hisinteutioii, hath command-
ed him to signify unto their lonUhips his fur-
ther Answer, which is, That their lord-hip* last
Petition was so acceptable to his majesty that

1 T

his intent was then and is still, to satisfy their
lord <> I lips fully in what they then desired."—
Hereupon it was ordered* That all business he
adjourned t-11 that day se'nnight. At the same
time the duke *of Buckingham sitmiiied unto
their loid*hips his desire to have the king's
counsel allowed l.im to plead his Cause: but

. the lords would not hear him, because they
would entertain no business: and so the house
was adjourned to the 2d of June.

May 15. The lords took into consideration
the kind's Message, sent to them on the 8th,
about allowing the earl of Bristol counsel in
hi* trial. And, upon some former orders of
the house being read, it was agreed, upon the
question, Tint the Lord Keeper should deliver
mi humble Answer from their lordships to the
king concerning the said Message, which was
to this etiect : — ** Whereas his majesty had
lately tent to them a Message concerning the
allowance of counsel to the earl of Bristol, their
lordships had with nil duty advised of that busi-
ness, and thereupon did humbly signify to him,
that the allowance of counsel to the earl of
Bristol was ordered before Lis majesty's Mes-
sage to them. And that order, as they con-
ceive, did not prejudice any fundamental law
of the realm ; for, in the parliament of the '22nd
of his innji sty's ble-ised father, a general Order
was made touching the allowance of counsel to
delinquents questioned in parliament; at the
voting whereof his majesty, then prince, was
pr« sent ; and that order extended further than
this late one for ihe earl of Bristol."

May 17. The lx>rd Keeper brought a
Reply from the king to the said Answer, viz.
u That his majesty had advised of it, and as he
considered that himself had recommended this
cause to their honour and justice*, although
he knew that by the fundamental laws of the
land, or custom and use of parliaments, coun-
sel was not to be allowed to a person accused
ofhi'ih treason; yet, since his majesty mit:lit
at his own pleasure descend from his own right
and pnnogiitiic ; and that it may appear
to all the world that his majesty in his gra-
cious noodnes^, is pleased to allow the earl of
Bristol all ways of defence, in a more ample
measure than is due unto him by law ; he i*
content, and doth hereby give full licence, that,
in i his particular case, the earl of Bristol may
have counsel, both to nd\i->e him, and to speak
and plead for him. But whereas their lordships
Message put his majesty in mind of a general
ordei,made in the 22nd of his bles.ed father's
reign ; he remembered that upon the occasion
of the earl of Middlesex's Cause, which was
only criminal and not capital, an Order was
made in the house, which his majesty never,
until now, conceived to extend unto causes ca-
pital ; and he is we II assured, that neither the
judges were advised with in making that order,
nor his late majesty's learned counsel heard for
bim ; therefore his majesty was not satisfied
about that general Order, nor that counsel
should be allowed in cases capital, without bis
license) and would advise further thereof, and

mpiachmtnt qfihe D. of Buckingham, [136ft

then would send again to their lordships touch:
ing the general." — Upon the hearing of this
Answer from the king, the lords ordered that
Mr. Serj. Hedley, Serj. Brarnston, Seij. Craw-
ley, and Mr. Anthony Low, should be allowed
as Counsel, to speak and plead for the earl of
Bristol.

The same day, the duke of Buckingham
moved the house, to know whether he should
answer the whole Charge, exhibited by the
Commons against him, or such parts thereof
only as their lordships should appoint : also,
whether he should answer the Aggregations of
the commons, reported to this house? which
he was desirous to do, that he might clear al
matters therein. — Upon consideration of this,
the lords ordered, '* That those Aggravation!
should be delivered to the clerk, to be kept bj
him close from all except the members of this
house ; and no copies to be «;ivcn to any bat
them. Likewise, That the duke of Bucking-
ham should answer the engrossed Articles of
the Charge sent up by the commons, but n»t
the Aggravations ; unless, upon perusal thereof,
he should find any thing fit to be answered, or
that the house think proper for that purpose.
And, for expedition's- sake, the eiuke to hare
the use of the original Aggravations.

The Earl of Bristol's Speech, by way of lotre*
duction, before he gave in his Answer.

May 19. The Karl of Bristol was brood*
again to the bar of the'loids ; when the dike
of Buckinfihun desired that he might have
leave to retire, lest his presence should give
some? distaste to the earl; and he withdrew
himself accordingly. Then Hie Lord Keeper
told the earl, That their lordships did expect
his answer unto Mr. Attorney's Charge. Upon
which he said,

" J am not insensible upon what disadvantages
1 come to trial in this cause ; For first, I am
fallen into his majesty's heavy displeasure, sad
am to encounter with a potent adversary, highly
in favour, and am accused for treason; for
which, all counsel and friends abandon me,
a* a man infected with the ptagnc ; I am be-
come bound and under restraint; whereas a man
who is to encounter for his life and honour,
and with a strong adversary, bad need to coot
upon equal terms.

" But as to the matter, I mind myself charg-
ed with divers Articles of High Treason ; ktl
looking into them with the eyes of my best un-
derstanding, with the opinion also of my coun-
sel lately assigned me, and taking them apart
one Article from another, I find not any thing
in them like treason, or that hath so much a*
the shew or countenance of a fault, either in act
or words : only by laying all things together,
and by wresting the wrests with a strained con-
struction, directly contrary to the true sense
and meaning of them, and the occasion where*
upon they were spoken, it is informed, and that
by way of inference only, That the intent was
evil, and the matter to prove the intent to be
eviJ, depends upon two props, ?iz. Ill aflectwt

ISS1J STATE TRIALS, SCh. I. \G20.—the Earl qf Bristol, and Lard Conway. [138*

to religion , and too much affection to Spain ;
which, if I shall clear, the inference grounded
Upon ihc.se props* will tall of il>ejf. — Therefore
I crave leave ot y«*ur lordship**, before I give my
Answer to the Charge, that 1 may give you ai;
account of theie two particulars; and I hum My
beseech you, tliat what I shall speak in my ju*t
defence, may not be conceived to proceed of
▼aiu ostentation.

** And lirst for Religion, I was in my child-
hood bred in the Protectant religion, and rather
after the MricUr manner than otherwise.
Win n I grew in yeais fit, I travelled into
France, Italy, and [tome itself: In all which
travels, I can produce some that I consorted
withal, who will witness with me, that I ever
constantly used the religion I professed, with-
out the least prevarication ; no man being able
to charge me, that so much as out of curiosity 1
ever w as present at any of the exercises belong-
i <g to the Roman rcli.i n, or did the Jcust act
of conformity to any their lites or ceremonies.

'• Secondly, after my return home, I was
received into ihe service of his late majesty of
blessed memory, whom I served some years as

0 gentleman ot his privv chamber, and carver;
in which time, none of" his majesty's servants
received the Holy Sacrament, frequented ser-
mons, and other exercises of our religion more
than I.

"Thirdly, in that time of my youth, not to
avoid idleness, but out of affection to religion,

1 translated that excellent Book of our faith,
and great points of our religion, written by Mr.
Moulin* ; which his late majesty having some-
times after seen, approved so well, that he
wwuld needs have it printed ; which accord-
ingly was printed in the name of Mr. Samp-
ford my chaplain, to whom I gave the honours :
But it wus my own act, as Mr. Sampford will
not deny, though, to this hour, I had never be-
fore spoken it.

" fourthly, about seven or eight and twenty
Tears of my age, I was employed ambassador
jnto Spain, in that great business of the Treaty
of the Maririagc ; and whereas others before
me carried wiih them but one chaplain, I had
two, viz. Mr. Sampford and Mr. Boswel ; and at
my arrival at the court of Spain, 1 caused it to
be published, that such a day (God willing) I
purposed to have a communion, to the end that
such English as were in the town, might re-
tort thither. Whereat the duke de Lrrma,
and other the great ministers of Spain, took of-
fruce, and told me, they might well perceive, I
brought no good affection to the business I came
about, that would so publicly and avowedly in
that court, where never the like was done, pro-
claim there a communion ; and with high ex-
pressions persuaded me to decline it. W here-
unto I answered, I came to do my master's ser-
vice, which I would heartily and effectually en-
deavo *:, but would not omit my service to
God, no, though my master commanded.
And at the communion there were present
100 persons, some of them brotliers, kinsmen,
ajsud near dependants upon some of their lord-

ships, whom I see there in my eye. Thin I did
in Spain; the like I did in Germany, m the
emperor's courts, in my ainb.issuge tin her.

" Fifthly, I had in my severd cniploym< nts
into Spain and Germany, above 500 persons
of all qualities attending up< n me, and never
one perverted in region: my children care-
fully instructed and bred iu the same religion.
I had constantly every sabbath a sermon in
my house; and sacraments, and other exer-
cises of our religion frequented.

" Sixthly, a foul-mouthed Shiinci railed
against our late king and religion in Spain ;
how I caused that to be re\eugtd by a near
kinsman of my own, is well known.

" Seventhly, one of the English dying in
die town of Madrid, of whose religion there
was some question made; and the king's chap-
lains telling me, that they at the day of his
death had been with him, and taken an ac-
count of his faith, and that he died a Pro-
testant : I caused him to be brought home to
my house, and there buried according to our
rites; whereat much ado was made, and it was
threatened, that the inquisitors and other otri-
cers, would come and fetch him out, and bury
him after their manner : I stood upon it, and
that it was the king of England's house, and
openly protested, that whosoever should come
thither with such intent, I would shoot at him
with a piece; and exhorted all my people, that
if such an attempt should b<?, they should, ra«
ther than suffer such a dishonour to our reli-
gion, die with me in that quarrel, and hoped
such English as were in the town would do the
like.

" Eighthly, There having been a monastery
for English Jesuits, founded and settled at
Madrid before my coming thither, and the
English arms set up, I laboured to suppress it,
and having written thereof to the late king, his
majesty advised me not to run my head against
the rock, for it was an impossible thing for
me to do : yet I undertook it, and it pleased
God so to bless my endeavours, that 1 abso-
lutely dissolved and overthrew it. For which,
the bishop of Winchester, Montague, (now
with God) wrote unto me by his majesty's
direction, a letter of his majesty's gracious
acceptance of so great a service : telling me,
besides the service 1 had done to the church
and commonwealth, it should remain a trophy
of honour to me and my posterity for ever :
and the king himself, with his own hand, wrote
unto me, beginning his Letter, ' Good fortune
' Digby, your good luck in your service wdf
* deserves that stile.'

'* Ninthly, In all negotiations in Spain, in
point of religion, I ever straitened my Instruc-
tions.

" Teutbly, The Match with Spain was not
moved by me, I ever advised a Protestant
Match, and shewed manv reasons both of con-
science and state; but it with a Catholic, theQ
rather with Spain than France, so as good con*
ditions might be made for teligion, as appears
by a letter I wrote, and delivered to the prince*

1383] STATE TRIALS, 2 Ch. I. 162(5.— Impeachment qfthe D. qf Buckingham, [1384

Rt his first going upon the employment; for
which I had like then to have been ruined for
being a Puritan, as I am now for being a Pa-
pist, and all by one and the same hand.

*' Eleventhly, And I appeal to the testimony
of Dr. Mason and Dr. Wren, the king's chap-
lains with me in Spain ; and to Mr. Samp ford,
Mr. Boswel, and Mr. Frewen,my own chaplains
there. And that such Papists as have been
my ancient acquaintance and friends, being
men of worth, well known to many of their
lordships, may be examined upon oath, whe-
ther I have not in all places, as well in Spain
as in England, and at all limes upon fit occa-
sions, avowed myself a Protestant, without the
least prevarication? Or whether I did ever any
the least act that was not suitable to the same
profession ? And that Mr. Frewen, Mr. Wake,
my own chaplains, may give their testimonies,
whether in the time of several dangerous sick-
nesses, which 1 had of late years fallen into,
I have not in the time of such my sick-
nesses (when no man can be supposed to dis-
semble with the world, being ready to leave it)
made h< fore them a confession of my faith, and
made my peace with God, resolving to die as
befit i ed a Protestant and a good Christian.
This I tell your lordships, was my religion I
was bred in, have ever professed and lived in,
and was resohed by God's grace, to die in;
and yet was so unhappy, by reason of employ-
ment, to be distasteful to many good men, that
I have been suspected even by them, not well
knowing me: and this hath been the rise the
duke hath now t»ken against me. Then for
my love to Spain, I wonder from whence that
opinion should grow, since 1 was there hated
and shamed, as the man whom, of all others,
they desired to have the least to do withal,
having stood ever stricter in point of religion,
than by inv instructions I might have done; as
after the capitulation concluded on, they un-
derstood by some intelligence, which caused
their hatred towards me.

" Sure I am, I shewed it not by the service
I did thi-m; for divers years together there was
not a letter sent by that king to any other state,
that the kin* my master had not a copy of be-
fore, or by that time it came to the place whi-
ther it was directed. There was not any great
action on foot, whereof I had not the private
instructions, and sent them thither; not any
expedition by sea or land, wherein I had not
some ministers or intelligencers, that gave me
from time to time advertisements of their ac-
tions* and most private intentions, whereof I
advertised his majesty from time to time. I
used such industry, as to get all the papers of
that king's private cabinet into my hands; took
copies and notes of such of them as I thought
useful ; and upon every of them set my private
mark before they were conveyed back again,
to the end, that if I should have had an .occa-
sion to have charged him with any thing men-
tioned in the same papers, T might have let
him see I knew it, by telling him in what paper
it was, and marked with such a mark.

" There was not a port in Spain, that I hail
not caused the depth of it to be sounded, nor
a fort whereof I knew not the strength, both
for the garrison, monition, and other matters
of advantage and disadvantage; insomuch as
if it should please the king to appoint a com-
mittee of the lords to take an account of me,
I should, by the stores I gathered there, and
brought with me, make it appear, I was as
useful a servant to his majesty in a war, as in
peace. Whereas at his majesty *s coming oat
of Spain, the powers of the Desponsories were
to be deposited in some man's hand ; and the
duke upon pretence of doing me honour, bat
intending to break my neck by it, mo\ ed they
might be left with me, and the king of Spaia
was contented ; and so they were put into my
hands, not as an attorney only for the prince;
but the king of Spain having taken the sub-
stitution of them by his secretary of state, en-
tered in legal form; whereby that king wai
then become interested in them by their oc-
cupation, as well as the prince by granting
of them. And becoming the instmmentum
stipu latum, wherein they were both interested,
they were deposited into my hands, as aa
indifferent person, trusted between the king
of Spain and the prince, with a declaration ot
the trust. And now the duke was returned
out of Spain, he plotted my ruin, and put it in
execution in this manner. He concealed, that
the powers were to expire at Christmas, and
procured his majesty to write a letter, (not a
direct commandment) but expressing a desire,
that the Desponsories should not ha till one of
the days in Christmas, intending thereby ti
draw me into a dilemma, that if I proceeded in
the match, this letter should, as now it is, have
been inforced against me, as a breach of in-
structions : if I had not proceeded, then I had
broken my trust between the prince and king of
Spain, overthrown the Marriage, so long soogbt
and laboured , it being the main scope of my
ambassage, contrary to express warrant, and
that upon a letter I must needs know to be a
mistake. And when I had written into Eng-
land, to have a direct warrant in the point, the
duke then seeing that plot would not take, be
dealt with divers great lords, as was well known
to some of their lordships there present, to have
me, upon my arrival in England, committed to
the Tower, before I should ever come to speak
with the king; which the Spanish ambassador/
here in England, having gotten private notice
of, gave advertisement thereof to that king:
who thereupon foreseeing my danger, and con-
sulting with his council and divines, what were
fit for him in honour and conscience to do in
that case, they resolved, that seeing my suffer-
ings grew by being an honest man, and endea-
vouring to perform the trust reposed in me by
that king, as well as the prince ; that king *af
bound both in honour and conscience, £ot only
to preserve me from ruin, but to make me a
reparation for any loss I should sustain by oc-
casion of the trust: Whereupon, at his depart-
ure, going to court to take his leave, the condi

1385] STATE TRIALS, 2Ch.'L 1620.— *fc Earl of Bristol, and Lord Camay, [1396

Olivares told me, what was plotted against me
in England ; and in respect of the danger, by
reason of the greatness of my adversary, per-
suaded me to stay there, and in his master's
name made an offer, not in secret, but in the
presence of sir Walter Aston."

Here he repeated those offers of reward, ho-
nour, and preferment, he then proceeded, and
■aid : " Upon what grounds and hope came I to
encounter with those dangeis? Not upon hope of
my greatness in court, and strength of friends
there, to bolster out an ill cause ; no sure, my
strength was too weak, and my adversaries too
powerful. But I knew my conscience was
dear, and my cause good, and trusted in God
Almighty. And to him now, and to their lord-
ships' judgments, recommend myself, and my
cause.

The Answer of the Earl of Bristol to
the Articles of Impeachment.

And then he delivered his Answer, desiring
their lordships it might be after recorded in
parchment, that it might remain to posterity ;
which being read by one of his council, the Lord
Keeper asked him, Whether he 'desired to say
any more than he had done? he answered, That
he had something more to say, but knew not
the order, or whether Mr. Attorney would speak
first ; but he being desired to speak, he desired
their lordships he might put them in mind of
what he conceived they had already premised ;
which was, That the duke, whom he accused in
that house of far higher offences, than any with
which he was charged, might be proceeded with
as he was, and that they might be upon equal
conditions. And that such heads as he had de-
livered against the duke, being of such matters
as he met withal in his negotiation as an
ambassador, and which he had, according
to his duty, acquainted the state withal, might,
by their lordships care and order, be put
into legal form, and prosecuted; for so was the
use, when he had the honour to sit at the coun-
cil table. He said, he conceived he had already
done his part to inform, and would be ready to
'make it good, it concerning their lordships to
see it prosecuted, it not being to be expected
• that he should solicit it; or if he would, he
could not, being under restraint. And be de-
sired likewise, that the judges might deliver
their opinions, Whether the matter charged
against him were treason ; that if it should not
be so in their opinious, he might not lie under
so heavy a burden. — He put their lordships in
'mind, that it was a strange manner of proceed-
ing, that upon a displeasure, a peer of the king-
dom complaining of those that bad practised
against him, and had been the causers of his
sufferings, should then, and never but then, be
.charged with treason. He told them, it was
not his case alone, but it equally concerned
them, and their posterity, and, it might be, some
others hereafter, more than him now. For, he
said, he thanked God, he hud some experience
in the world, and thereby, and by those things
lie had kept, was able to make his innocency

appear, which, perhaps, would not be every
man'* hereafter ; and so many an honest heart
in a good cause distracted with fears, and aban-
doned of friends, might perish through the ma-
lice of a potent adversary.

The lords again asked him whether he had
any thing more to say ? he answered, No, but
desired leave only to explain himself in two
things ; one in his speech now spoken, and tlys
other when he was firbt brought to the house.
That in his speech this day, was, where he af-
firmed, he had like to have been ruiued in his
negotiation : first, for being a Puritan, and now
for being a Papist, and both by one hand ; he
explained it to be by the hand of the duke of
Buckingham. And the other when he first'
came to the house, saying there, for redress of
former sufferings, and meeting on the sudden
with treason charged upon him, he spake in
passion, expressing the wrongs and injuries done
nim by the duke ; and told their lordships, he
had used means to convey part of his sufferings
to the late king his master, who, in the duke's
bearing, sware he would (after he bad heard
the duke against him) hear him also against the
duke; for which his majesty suffered much, or
to some such purpose. Now he understandetli
this speech to reflect upon what was in agitation
in the lower house ; but he said, although he
could not well excuse the dujte's indiscretion in
that point, yet he spake it not any ways to cor-
roborate that opinion ; for howsoever the duke
were his enemy, yet he could not think so dis^
honourably of him.

The house was pleased to allow that lus own
Counsel might read his Answer, as follows; the
Earl sitting by on a stool all the while, and ex-
plaining or enforcing any part thereof.

" The Answer of John Earl of Bristol to
the Articles of several High Treasons,
and other great and enormous Crimes, Of-
fences, and Contempts, supposed to be
committed by him against our late sove-
reign lord king James of blessed memory,
deceased ; and our sovereign lord the king's
majesty that now is ; wherewith the said
Earl is charged by his majesty's Attorney
General, on his majesty's behalf, in the
most high and honourable Court of Par-
liament, before the king and the lords
there.

" The said earl not acknowledging any of
the supposed treasons, crimes, otfences, or con-
tempts wherewith he is charged in and by the
said Articles to be true ; and saving to himself
all advantage and benefit of exception, to the
uncertainty and insufficiency of trie said Arti-
cles, and several Charges in them contained s
and humbly praying that his cause may not
suffer for want of legal form, whereunto bs
hath not been inured ; but may be adjudged
according to such real and effectual grounds
and proofs, as may be expected from an am-
bassador, the ground of the charge growing
thence : and that he mav haut lewfeMb ^i^axcv
himself and Vua oyto, vtv^mm^va.^^ ^vs&v&ax

may seem to admit of a doubtful construction,
for Answer saith "as followeth :

u I. To the First Article he saith, That he
did nut advance or further the design of the
king of Spain against our late sovereign lord
the king, his children, friends, and allies ; or
traitorously, f ilsly, wilfully, or as a traitor to
our Lite sovereign lord the king, by any letters,
or other message*, sent in the years 1021, 2, 3,
or at any other time, inform, advise, or assure
the said late king, that the emperor and king
of Spain, or culler of them, would really, fully,
or effectually make restitution, or plenary re-
storation, t-> the count Palatine and his chil-
dren, of (he dominions, territories, and posses-
sions of the said count, or of the electoral dig-
nity ; or that the king of Spain did really, fully,
or elect ually intend the Marriage between the
lady his sister, and the prince our said sove-
reign lord, according to the articles formerly
propounded between the said two kings, as by
the said Arii< le is alledged ; neither does or
did he, the said earl, know that the emperor
and king of Spain, or either -of them, never
really intended such restitution or restoration
as afore>.ud, or that the king of Spain never
really intended the said Marriage, as by the
said Article is alledgcd ; nor doth he the said
earl know that the emperor or king of Spain,
or either of them, intended by the said Trea-
ties, in the Article mentioned, to give time for
compassing their own ends or purposes, to the
detriment of this kingdom, as hy the said Arti-
cle is also alledged ; neither was the said late
king James made secure upon any such false
ab-urances given unto him by the said earl, or
thereby lost the opportunity of time; nor were
the dominions, territories, and possessions of
the count Palatine, or the electoral dignity,
thereby lost, or any part thereof taken out of
the possession of the said king James : nor the
•aid count Palatine, the lady Elizabeth his
wife, or their children, dispossessed, disinherit-
ed, or bereaved thereof, or of any part thereof,
by any. act or default of him the said earl ; nor
did, nor was he, the said earl, the cause of any
thing to the dishonour of our said late sove-
reign lord king James, or to the disherison of
the said late king's children, or their posterity ;
to the disanimating or discouraging of any of
the rest of the princes of Germany, nor any
other kings or princes in amity and league with
Lis said late majesty ; nor did any thing in or
concerning the same contrary to his duty and
allegiance, or contrary to the trust and duty of
an ambassador, or fa I sly, wilfully, or traitor-
ously, or as a traitor to our said sovereign lord
(he king, in any such sort, or by any such
means, ways, or inducements, as by the said
Article is supposed, or by any other ways or
means whatsoever : but the said earl dealt
therein, and in all his snid t; usts as an ambas-
sador, carefully, faithfully, mid honestly, and
as became a 'faithful and loyal subject, servant,
counsellor, and ambassador. And for a clear
demonstration of the truth and manner of his
proceedings, touching the matter contained in

•Impeachment qf the B. of Buckingham, [1361

the said Article, the same consisting of seve-
ral parts, viz. the loss of the said Palatinate,
and the Match with the said lady of Spain,
and of his several employments ; as of one
extraordinary Ambassage to the emperor, of
another to the king of Spain, in the years
1621, 2, and 3, aforesaid, he humbly crateth
leave of thin most high and honourable court
to separate the business, and to distinguish the
times.

" And, beginning with the Palatinate first,
to give an Account of .his Ambassage to the
Emperor ; and so to make as brief u deduc-
tion as he can of his whole carriage in that bu-
siness, from the beginning of his employment
to the time he left it. In this ambassage to the
emperor he propounded all things faiihlul'y ac-
cording to Lis instructions ; and the ans*trj
which lie returned to his late majesty were tiie
vci y same, and none other, than such as wera
given him by the emperor, under his hand and
the imperial *eak; the which, according to hi;
duty, lie faithfully sent unto his said inaitst);
and withal, did honestly, faithfully, and truly
advertise his said majesty what he understood
and thought then upon the place : hut was so
far fiom giving unto his said majesty any ill-
grounded hopes in that belialf, that he wrute
unto the lords of the council, here in England,
from Vienna, the 26th of July, 1621, in sort as
followed), viz. " I am further to move your
lordships, that there may be a dispatch made
presently into Spain, to his majesty's ambassa-
dor and Mr. Cottington, that they there deal
effectually for the preparing and ripening of
the business against my coming ; and thatthej
use some plain and direct language, letting ths
ministers there know, that the late letter tent
by the king of Spain to the emperor, was
colder and more reserved than his majesty had
reason to expect. I shall conclude with telling
your lordships, that though I despair not of
good success in this knotty business, yet I hope
his majesty and your lordships lay not aside
the care of all fitting preparations for a war, in
case a peace cannot honourably be had ; aod
amongst other things. I most earnestly recom-
mend unto your lordships, and, by your lord-
ships, unto his majesty, the continuing abroad,
yet for some small time, of sir Robert Mansels
fleet upon the coasts of Spain ; which, in case
his majesty should be ill-used, will prove the
best argument he can use for the restitution of
the Palatinate." — And the said earl further
saith, That this his advice was really seconded
by his actions, by being the cause, as he re-
turned homeward out of Germany, of the
bringing down of the count Mansfelt, whereby
the town of Frankeudale w as relieved, and, by
supplying of his majesty's army, then in greai
distress, with money and plate, to the value of
10,000/. merely out of his zeal and affection to
the good of the king and his children, having
no order or warrant for the doing of it ; but
might easily have excused it, either through
want of order, or want of means ; but that htf
heart was ever really peat in effects^ mom U»M

13S9] STATE TRIALS, 2 Cft. I. \M6.-*ke Earl of Bristol, and Lord Conway. [1&6

thews, to serve the king's son-in-law and fits
cause, as by the discourse of this business will
appear. And how acceptable these services
then were, will appear by the Letter* of the
Queen of Bohemia, dated in Oct. 1621, in
these words following: — "My lord; Having
understood from Ihidclbcrg, how you have
fihew n your affection to the king and me in all
things, and in the help of money you have lent
our soldie;s, I cannot let such an obligation
pass without giving you many thanks for it by
these lined, since I have no other means to
shew my gratefulness unto you ; howsoever,
assure yourself, that I shall never be forgetful
of the testimonies yoo give me of your love,
which I entreat you to continue, in doing the
king and me all the good offices you can to his
majesty ; you have been an eve-witness of the
miserable estate our countries are in : I in-
treat you therefore to solicit his majesty for
onr help. You have given me assurance of
your affection, I intreat you now to shew it by
helping us, in your good endeavours to his ma-
jesty, and you shall ever bind me to continue,
a* I am already, your very affectionate friend,

Elizabeth."
u The Earl likewise received sever .il other
letters, about the same time, both from the king
of Bohemia and council of Heidelberg, to the
same effect. And how much satisfaction his
late majesty received in that behalf, and touch-
ing that business, will several ways appear, and
particularly by his speech to the parliament.
And the said earl likewise appealeth to both
houses of parliament, to whom, by his late
majesty's order, he gave a just and true Ac-
count of that employment ; with what true
zeal he proceeded, and how he pressed that
•ingle treaties and promises might no longer
be relied on, but that a fitting preparation for
a war might go, hand in hand, with any treaty
of accommodation ; and, for a conclusive tes-
timony or his late majesty's approbation of his
carriage in this employment, lie humbly de-
■ireth that a letter of the fluke of Buckingham's,
under his own hand, bearing date the 11th
of Oct. 1621, may be read: viz. — " My lord,
I am exceeding clad your lordship hath carried
Vourself so well in this employment, that his
majesty is not only infinitely pleased for the
service you have done, for which he command-
ed me to give your lordship thanks iu his name,
until he sec you himself; but that you have
given all men cause to commend his majesty's
choice of such a man, that, unless your heart
had gone with die busincs*, could never have
brought it to so good a pas*.. Amongst other
things his majesty likcth very well the care of
clearing his honour, whereof he will advice fur-
ther with your lordship at your coming over.
I hnr-e you will not find your negotiation with
the infanta of such difficulty as you seem to
fear in your letter, seeing my brother Edward
hath brought with him a letter from his ma-
jesty's son-in-law, whereby he pntteth himtelf
wholly to his majesty's advice and pleasure for
nil submission. And as for the money your

lordship hath so very seasonably laid out, his
majesty will see you shall sustain no loss J
holding it very unreasonable you should suffer -
any thing by the care of his service, which you
I rave shewed so much to his contentment, and
the great joy of your lordship's faithful servant,

O. Bt'CKINGIlAM."

" Having given this Account of his Employ*
ment *itn the Emperor, he humbly era vet h
leave to make it known in what sort, before
this his employment, he endeavoured to serve
the prince Palatine acid his cause; which will
best appear by his majesty's own testimony,
upon the going of sir Fran, is Ncthersale to the
prince Palatine ; at which time bis majesty be-
ing, out of his royal and just heart, desirous to
do a faithful servant right, commanded sir
Francis Nethcisale to let the prince Palatine
understand how good a servant the said earl
had been unto him, and how active in his a£»
fairs; as will best appear by a dispatch of sir
Francis Ncthersale, wiitten all in his own hand,
to sir George Calvert, in answer to what was
commanded him, dated at Prague 1 1th August
162?, and sent by his bite majesty to the said
earl for his comfort, being as folio wet h:—
" Right honourable ; That you may the better
be assured, that I have neither forgotten nor
neglected the commandment received from his
majesty by your honour, you will he pleased to
have the patience to hear me report what I
said to the king upon delivery of my lord Dig-
by *s letters to his majesty, which was, that the
king my matter, whose justice is so much re-
nowned over the world, did use to shew it in
nothing more than in vindicating his servants
from wrongful opinions, whereof he knew no-
ble hearts were more sensible than of injuries
done to their persons or fortunes; that, out of
his royal disposition, his majesty having found
my lord Digby mistaken by some of his people
at home, by occasion of his being by him em-
ployed in the affairs with Spain ; and having
thereupon conceived a jealousy that the said
noble lord might aNo be mire ported hitherto
the prince Palatine, had, in that respect, given
me a particular commandment to assuie the
prince, that bis highness ru<i not a more truly
affectionate sen ant in England ; and, for proof
thereof, to ht the prince understand, that
whereas the baron Donajji, now his highurss*»
ambassador in England, had, since his coming
thithf r, obtained but three great points for his
master's service, to wit, the Loan of Money
from the king of Denmark, the Contributions
in Engl.ind of the e:tv and country, and the
sending of ambassadors to the contrary purty :
that the lord Digby had been the fn-t propoun-
der of .ill thos" to the king my master, before
his l.ighnesVs itinhaosador, or any other of his
servants in Km-land ; although his loid*hip had
been contented, that others who were but set
on should carry away the thanks and prize;
because his lordship being known to be the
first mover thereir, might possibly weaken the
credit he hath in Spain, and so render him the
more unable to senc both his own master

1391] STATE TRIALS, 2 Cm. I. 1620.— Impeachment <ftht D. (^BavH^Jsm, [MM

and the prinee ; in which respect I humbly
prayed liis highness also to keep this to him-
jseif/ — By which testimony it may appear, as
the said earl conceivetb, bow he the said earl
behaved himself before his said embassage and
in his said ambassage, with his said late majes-
ty's approbation thereof. — Now he most hum-
bly craveth leave to give your lordships an Ac-
count how he proceeded after his Return from
the emperor's court : as soon as he came into
England, he discovered to his majesty and the
lords of his council, in what great want he had
left the forces in the Palatinate, and solicited
the present sending away of money ; and there-
upon 30,000/. was borrowed of sir Peter Van-
lore, sir Baptist Kirks, and sir Wm. Cockaine,
and presently sent into the Palatinate, besides
the 10,000/. which he had lent, for which he
paid the interest out of his own purse 6 months;
having also given, not long before, 500/. by way
of Benevolence, to the service of the said Pala-
tinate. Now, in the interim betwixt his return
from the emperor, which* was in November
1621, and his going into Spain, in May, 1622,
he first gave an Account, as is aforesaid, of his
embassage, to both the houses of parliament;
and moved them to be as effectual as was pos-
sible for the supplying of his majesty, and that
the money might be wholly employed for the
succour of the Palatinate. The parliament
being dissolved, he solicited, with great care
and industry, the settling of some course for
the supplying of the Palatinate ; and his ma-
jesty was persuaded to maintain 8,000 foot and
1,600 horse under his own standard, and in bis
pay, in the Palatinate, and to establish a cer-
tain course for the due payment of the said
army: and the lord Chichester was upon his,
the said earl's motion, sent for out of Ireland ;
and he the said earl, hy his majesty's com-
mandment, took care of his dispatch. In this
estate the said earl left this affair at his depar-
ture towards Spain, in 1622, nothing doubting
but all things would have effectually and con-
stantly been pursued, according to the order
which was settled and resolved on at his depar-
ture. On his arrival at the court of Spain, he
presently proceeded according to his instruc-
tions, pressing the business of the Palatinate as
effectually as could be, and faithfully laboured,
and effected from time to time, (as far as the
point of Negotiation) all the particulars that
were given him in charge ; as will appear by
his late majesty's letters upon every particular
occasion. And, if by accident, such as the
marquis of Baden, count Mansfelt, and the
duke of Brunswick's receiving each of them an
overthrow that summer; or by neglect, or ill-
ordering the affairs there, (whereof This late ma-
jesty so far complained to lus son-in-law, as to
give order for the withdrawing of his forces,
as will appear by his majesty's letters of the 3d
of June, 1622, as also by his letter to sir Ho-
race Vere and the lord Chichester, if there were
not a speedy redress,) those businesses have
miscarried, the earl hopeth he shall not be
liable to the blame, it having no relation to

him or his employment ; hairing so far, and so
honestly, with his best affections, employed his
care and utmost service in the business: and
his majesty was pleased, by many several let-
ters, upon several occasions, to signify his gra-
cious acceptance of his service, as in his letter
of the 24th of November 1622, from Newmar-
ket, writing as followed, viz. " Your dis-
patches are in all points so full, and in them
we receive so good satisfaction, as in this we
shall not need to enlarge any further, but only
to tell you we are well pleased with the diligent
and discreet employing of your endeavours in
all that concerneth our service ; so are we like-
wise with the whole proceedings of our ambas-
sador, sir Walter Aston. Thus we bid you
heartily farewell." — And afterwards his ma-
jesty was likewise pleased, in his letter of
the 7th of January 1623, a little before
our gracious sovereign lord the king, then
prince, his coming into Spain, to write as
folio weth, viz. " Concerning that other
unfortunate knotty affair of the Palatinate,
to say the truth, as things stand, I know
not what you could have done more than you
have done already." — And whereas it is ob-
jected, that the Palatinate should be lost by
the hopes he, the said earl, gave by his letter)
out of Spain, it is an objection of impossibility;
for there was nothing left but Manheim and
Frankendale, when his first letters, out of Spain,
could possibly come to lus late majesty's hands;
for he did not begin there to negotiate in that
business until August, 1622 ; and about that
time Heidelberg, and all but Manbeim and
Frankendale, was lost; and Manheim he bad
saved by lus industry, had it not been so sud-
denly delivered, as is by his majesty acknow-
ledged, by his letter of the 24th Nov. 162?,
writing thus, viz. " And howsoever the order
given to the Infanta, for the relief of Manheim,
came too late, and after the town was yielded
into the hands of Tilly; yet must we acknow-
ledge it to be a good effect of your negotiation,
and an argument of that king's sincere aod
sound intention." — And Frankendale being bj
the said earl's means once saved, was again the
second time saved merely by bis the said earl's
industry in procuring a letter from the king of
Spain, Sated the 2nd of Feb. 1623, whereupon
followed the Treaty of Sequestration, which
hath since continued: and he' the said eari
was so far from hindering succours, by any let-
ter or counsel of his, that he was the solicitor,
and, in great part, the procurer of most of the
succours that had been sent thither, as is for-
merly set down : and when his royal majesr?
that now is, arrived at the court of Spain with
the duke of Buckingham, they found the fart
business of the Palatinate in so fair a way, that
the Spanish ministers told them die king should
give his late majesty a blank in that business U>
frame his own conditions, as appearet/i bj his
late majesty's letter of the 8th Oct. 1633, *s
followeth, viz.

' Our son did write to us out of Spain, (fax
' that king would give us a blank in which «*

4 might frame our own conditions, and the
* same he connnneth to us now/ — And the
like touching die blank was also acknowledged
by the duke of Buckingham, in his speech in
parliament, after the return of his majesty out
of Spain. It will appear by the testimony of
sir Walter Aston, and by his and the earl's
dispatches, that the said earl wanted not in-
dustry and 7-eul in this business ; insomuch that
the last answer the earl procured therein from
the king of Spain, was fuller than he, the said
earl, was ordered by his late majesty's latest
letters to insist upon ; so as by that which hath
been alledged, the said earl hopeth your lord-
ships will be satisfied, not only that he wanted
neither will nor industry; but that he hath,
with all true zeal and affection, und with his
own means, faithfully served their majesties
and the prince Palatine in this cause. And
lorasmuch as. in that affair, he had all the
assurances that could be betwixt Christian
princes; if therein there hath been any deceit
(as by the said Article i» intimated), which he
never knew, nor believed, he referrcth it to
God to punish their wickedness ; for, betwixt
princes, there can be no greater tye than their
words, oaths, hands, and seals ; all which he
procured in that behalf: and both he, the said
earl, and sir Walter Aston, were so confident
that the business would be ended to his late
majesty's satisfaction, that, in a joint dispatch
Co his said late majesty of the 23rd of Nov.
1693, after his now majesty's return into Eng-
land, they wrote as follows: — " We hope that
your majesty may, according to your desire,
signified to me the earl of Bristol, by the letter
of the 8th Oct. give to your majesty's royal
daughter, this Christmas, the comfortable news
of the near expiring of her great troubles and
sufferings ; as also unto the prince, your son,
the congratulation of being married to a most
excellent princess."

. " Having thus given your lordships an ac-
count of his proceedings touching the Pala-
tinate, he will, by your lordships good favour,
proceed to the other part of the Charge con-
cerning the Marriage. And, first, touching the
hopes and assurances, that he is charged to
hove given to his late majesty and ministers of
state here in England, of the Spaniards real

Eroceedings in the said Match, when it is said
c knew they never meant it; he saith, He
never gave any hopes of their real proceeding,
but such and the very same that were first
given unto him, without adding or diminishing;
neither could he have done otherwise with
honesty or safety. And he further saith, That
the hopes he gave were not upon slight and
vain intelligence, but, as well in that of the
Match as the other of the Palatinate, his ad-
vertisements were grounded upon all the as-
surances, both upon word and writing, that
could pass betwixt Christians; as will be made
evidently appear by his dispatch of the 9th
Sept. 1623; which he humbly desired may be
read, if the length of it may not displease : the
substance of it being to shew by all the engage-

VOL. II. I

he Earl of Bristol, and Lard Conwy. [1894

ments and promises of the king of Spain, that
he really intended the Match ; and the cause
why the coode D'Olivares pretended to the duke
of Buckingham, that the Match was not formerly
meant, was only thereby to free himself from
the treating any longer with the said earl, to
the end he might treat for larger conditions, in
point of religion, with the said duke; the said
conde D'Olivares taking advantage of having
the person of his majesty, then pnnce, in their
hands: and with this dispatch the said earl ac-
quainted his majesty that now is, then in Spain,
before he sent it. And his majesty upon the
reading of it, was pleased to say, That the earl
had proceeded with so much caution and care,
that, in case die Spaniards should be false, he
might be sure to shame them for their falshood.
By this dispatch the said earl doubteth not but
it will appear to this most honourable court,
That whilst the treating of that business was in
his hands he proceeded in it, not only with care
and industry, but with some measure of vigi-
Inncy. — For the clearing of an objection that
hath been alleged, viz. That the Match was
never meant before the duke's going into
Spain, nor after ; the carl cravcth leave to set
down some few reasons, of many, which caused
him to believe that the said Match had been
really meant ; and that it wa* so conceived,
by both their majesties and the king of Spain,
and their chief ministers on both sides, for the
following reasons : 1. The duke of Buckingham
certified to his late majesty, That the business
of the Marriage was brought to a happy con-
clusion ; whereupon his late majesty was
pleased to give order to the said duke and earl
to proceed in other business, which his said
late majesty would not have treated until the
Marriage was concluded ; as will appear by a
letter of his late majesty jointly to the duke of
Buckingham, and the said earl, of (he 2°-H July,
1G'23. 2. It will appear by letters of the lord
Conway to the duke of Buckingham, bearing
date 3rd and 4th Sept. 1G23, that the said duke
had good assurance of the conclusion of the
said Match ; and, upon this confidence, all
tilings were put in due execution in England,
as had been capitulated ; and the lord Conway,
and others, fully settled and agreed all trio
points of immunity and liberty for the Roman
Catholics for the use of their religion, as was
set down in the Declaration of the 9th Aug.
1623, hereafter mentioned in the Answer to
the 5th Article of this Charge. 3. The very
day that his now majesty and the duke of Buck-
ingham departed from the Escurial, in Spain,
towards England, the said duke solemnly swore
to the Treaty of the said Marriage, and the
furthering of it all that should be in ids power,
upon the Holy Evangelists, in the presence ot%
the said earl and sir Walter Aston. 4. The
Treaty of Marriage had formerly been signed,
sealed, and solemnly sworn to by the king of
Spain; and when his majesty and that king
took their leaves, the kiiui of Spain did so-
lemnly protest, on the word of a king, faithfully
and punctually to perform all tkat had been
4U

1395] STATE TRIALS, 2ChI. 1626.— Impeachment of the D. <f Buckingham, [1996

capitulated in tlie Treaty of the Marriage ; and
hereupon embraced bis majesty at his depar-
ture : and the very next day sent a letter unto
his snaje«ty all written with his own Land, and
proU sting to make good all that he had capitu-
lated or promised to his majesty at his departure
the day before; so that if there were no tiue
meaning on the part of Spain to make lire Mar-
riage, as by Mr. Attorney i* pretended, yet
certainly the said earl hath not been slightly
deceived : neither can it be, as I e conceiveth,
any fault in him ; since not only his late ma-
jesty but his majesty that cow is, and the duke
of Buckingham, being then both upon the place,
did confidently believe, (and that upon other
grounds than the informations, suggestions, or
persuasions of the scud earl) that the Marriage
* was really intended ; and to that effect, both
% his late majesty and his majesty that now is,
after his return into England, wrote unto him,
the said earl, several letters, assuring him that
their intents and pleasures were to have the
said Match proceeded in : and thereupon the
powers of his majesty then prince, were again
renewed, and sent unto the said earl ; so that
the said earl having so many and so great
causes to be assured that the Match was really
intended on both sides, he conceiveth it will
be hard for Mr. Attorney to make good that
part of his Charge, wherein he aihrmeth, That
the earl should know the contrary, or give as-
surances upon false grounds, as in the said Ar-
ticle is alleged."

" II. To the Second Article the said earl
saith ; That he did not falsely, wilfully, or trai-
torously, or contrary to his allegiance, or the
trust or duty of uu ambassador* continue the
Treaties upon Generalities, without effectual
pressing the king of Spain unto particular con-
clusions, according to his late majesty's instruc-
tions or directions ; nor intended to have con-
tinued the said Treaties upon generalities, with-
out reducing them to certainties or direct con-
clusions ; nor did therein any thing to the dis-
honour of his said late majesty or to the danger
or detriment of his nnjesty's person, his crown
or dominions, or of his confederates or allies,
as by the said Article is alledged ; but direcily
denieth all the supposed offences wherewith he
standeth charged by the said Article: and, for
n clear declaration and manifestation of the
truth and manner of his proceedings, that it
may appear to this high and most honourable
court, how far he hath been from offending in
that kind, nor continuing the said Treaties one
day longer than ne cessity enforced, but rather
pressing beyond than coming any way short of
his instructions and directions : he farther
saith, first, as to the continuing of the Treaties
upon generalities, that the temporal articles
were, by agreement on both sides, not to be
treated or settled, until such time as the articles
of religion were fully agreed ; for that it was
held most proper and honourable for both sides,
first to see if t.t»e ditucultics of religion might be
reconciled before they passed into further en-
gagements; and the said articles of religion, by

reason of the pope's new demands lent into Eng-
land hy Mr. Gage, were not signed iior conde-
scended unto by his late majesty nor his majesty
that now is, then piince, until the 5th Jan. 162%,
and then were sent away post oat of England
to the said earl by Mr. Simon Dteby, who ar-
rived with them at Madrid in Spain, about tat
25th of the same month : but the earl's cart
was such to have no time lost in the settling the
temporal articles, that before he would conde-
scend (so much as de Unease) unto the arti-
cles of religion that they should he sent back
again unto Home, he procured the king of Spain
to promise that within the time limited for ibe
procuring of the dispensation (which was by
March or April following at the farthest) aN
the temporal articles should be settled and
agreed ; to the end the Infanta might be deli-
vered at toe spring, as, by the king of Spain's
answer in writing, was declared to be that king's
intention ; and accordingly sir VV. Aston and
the said earl did, not in general, but most in-
dustriously, labour to settle all particular arti-
cles, (as they did most of them,) via. That the
portion should be two millions, it appearing
that it was so agreed by the late king of Spain,
the present king's father; that, the dispensation
coming, the desponsories should be «khin40
days after, and the Infunta's departure froot
Madrid should be within 30 days after that;
and that don Duarte de Portigal should be the
man that should attend the Infanta in the
journey : and nil other particulars necessary
for the conclusion of the said Treaty, were by
sir VV. Aston, the said earl, and the Spanish
commissioners, drawn up into heads in writing;
and after many debates they were consulted
with that king, and the 2nd of March, 16$$,
(). S. the coude de Gondomar and the secre-
tary don Andreas de Pruda, were appointed to
come home to the house of the said earl, to
signify unto sir \V. Aston and himself, fas they
did) that the king ofSpnin had decUred his re-
solution in all the particulars, nnd given then
order to come to a speedy conclusion with
them. of all thing*: and that king's answer to
that conclusion the earl saw and read, all writ-
ten with the said king of Spain's own hand.—
On the 7th of the same month of Mnrcli, the
kind's majesty then prince, and the duke ci
Buckingham, arrived at Madrid, and then the
Spaniards took new hopes, and the tietociatioa
was put into a new form; so that where it ia
objected against the earl, that he entertained
and continued the Treaty so long upon Gene-
ra&itit's, he conceiveth it is ii"t meant of the
spiritual articles, for they were such a* were sent
from Rome to England, and from thence d*T
came to the earl ; and for the temporal srtK
cits, they not bci'ig to be settled or treated nil
the articles of religion were concluded, he con-
ceive th it cannot bo alledged with any col<H>f|
that i?i them his majesty «as entertained with
generalities; since from the time that the sals'
articles of religion were brought unto the said
earl hy Mr. Simon Digbv, being about the Sith
of Jaoi. there ware but six weeks until the 7th

1397] STATE TRIALS, 2 Ch. I. 1620.— the Eari of Bristol, and Lord Conway. [139S

•

of March following, when his majesty then
prince, arrived in Spain ; and in the interim all
the above specified particulars were settled :
and the time that hath been spent in this Treaty
hath not been through his th** said carl's default,
in continuing upon generalities, without press-
ing to particulars, but hath bet n caused as well
by difficulties which the business brought with
it, as also by exterior accidents, viz. the wars
of Bohemia, the death of two popes, and of the
late king of Spain, without the least fault of the
said earl's, as is acknowledged by hi* late ma-
jesty in the said earl's instructions of the 14th
March, 1621 ; neither could any delay therein
be attributed unto him the said earl, for he
was employed in those times into Flanders and
Germany ; and sir Walter A stun and sir Francis
CottitUiton, for the space of three or four years,
were resident in spam ; from whence the hopes

' speed.* And the said earl saith : that having
received from his said late majesty the reso-
lution in point of religion, and a limited time,
according to his desire ; he was so precise
and punctual therein, that although the making
or breaking of the Marriage depended upon
it, he would not give one month's longer time,
for the procuring of the dispensation, until he
had first acquainted his said lute majesty
therewith, and received his directions under
his own hand ; as "ill appear by his said ma-
jesty's letters of the 25th Oct. 1622, as follow-
eth : — '* Rijht trusty and well beloved cousin
and counsellor, we greet you heartily well.
Whereas by your last letters written to our
secretary, dated 20th Sept. you are desirous
to have our pleasure signified unto you under
our own hand, whether we will be contented
or not to have a month's longer time for the

ihey gate were upon all the discreet grounds' coming of the dispensation from Rome, than
that ministers can expect fr m a state : but | we have already limited unto you, in case
the earl resumed this business only six months : they shall there conclude all things else to
before his map sty's coming into Spain; and our contentment, with a resolution to send

lie was so desirous to see his majesty, then
prince, bestowed, tint he pressed nothing so
much, both to the king and the prince, as that
the prince might lose no more rime, and rather
break the Match with Spain, than suffer any
further delays, as will appear hy the dispatches
from his first arrival at the court of Spain, until
his majesty, then punce, his coming; f »r in his
letters of the 20th June, 1622, being the fiist
he wrote after his first audience, ho was so de-
sirous that no time might be lost, that in them
he crave l h leave of his then majesty that in

the Infanta hither next spring : we do herebv
declare unto you, that in such case yon shall
not break with them for a month's longer delay;
we also wish you not to trouble yourself with
the rash censure of other men, in case your
business «hou!d not succeed, resting in that full
assurance of our justice and wjsdoro, that we
will never judge a good and faithful servant by
the effect of things so contingent and variable ;
and with this assurance we bid you heartily
farewell." — And he further said, That when he
had agreed unto the Article* of Religion, and

case he should find any delays in Spain, he * that a settled time was appointed for the
might (with- >ut expecting any new order) take j coming of the dispensation and a conclusion
his leave and come home. And upon the of the Match, although he would bind himself
return of sir Francis Cottington in Sept. fol- to nothing without his majesty's approbation,
lowing, he wrote both to the king and his ma- yet, for that no time might be lost, he agreed
jesty then prince, viz. to the king as followeth: to the propositions, de bene esse, sent by Mr.
' I shall presume to add to that which Mr. I Porter on the 10th Dec. 1622; to* the end the
1 Cottington shall deliver unto your majesty by ! Articles might be sent immediately to Rome,
' word of mouth, of the present state of the i without losing so much time as to hear first
4 Match, what I. conceive to be the right way to ' from England, and humbly moved, that in case

* bring »t to a speedy issue ; that your majesty ] his majesty should approve of the said Arti-

* will be pleased positiiely to declare what will cles, he would send his approbation directly to
' do in point of religion, anil that you will ap- j Rome, for the gaining of time, which his ma-

* point me a certain limited time, by which this jfsty was pleased to do: and at that time he

* king shall procure the dispensation, or con- ' wrote both to his said late majesty and his now
4 elude the Match without it; th-.ttin case there majesty then prince, viz. to his majesty as fol-

* should be any further delay therein, then, I loweth : * This is the true state of the business
4 may d» claie y.>ur majesty disengaged, and free ' as it now standeih ; if your majesty npproxe
1 to bestow the prince in such sort as you shall , ' of what is done, I hope it will have a happy

* jud,:e in o> t c mvciiirnt.' And to the prince ' and short conclusion ; if your miijesty think
at the same time he wrote in the subsequent ' it not fit to allow of these articles, 1 have done
words, viz. ' That which will be necessary for ' the utmost of my endeavours, and shall htim-
' bis majesty presently to do on his majesty's ' bly persuade your majesty not to lose a day

* part, is to declare himself how far be will be j l longer in the Treaty ; so much it importcth

* pleased to extern! in point of religion, in such ' ' your majesty ami your kingdoms that the

* form as Mr. Cottinijton will- propound unto ' prince were bestowed.' — And to the prince,
« your highness ; and that he set me a prefixed in letters of the like date, in this sort: I pre-

* limited time to break or conclude the Match, ' * same now to write unto his majesty that

* either with the dispensation or without it ; and j * which I think my duty to &ay likewise unto
4 for the rest it may be left to my negociation ; ' your highness; That in ca»e you should not

* but your highness may be pleased to hasten

* ibis his majesty's resolution with all possible

' approve of what is now conditionally agreed,
' you permit not a day more to be lost in this

JS99] STATE TRIALS, «2 Ch. I. 1626^-Imptachnau qf the D. qf Buckingham, [1400

* Treaty ; for it is of so great consequence that
' your highness were bestowed, that it iniporteth
' almost as much that you were speedily, as

* willingly, married ; but I hope that his majesty
4 and your highness, will in such sort approve
' of this last agreement, as you will speedily

* bring this long Treaty to a happy conclusion.
4 1 am out of hope of bringing things to any bet-

* ter terms, and therefore 1 deal clearly with your
' highness; and do not only most humbly per-
1 suade, but, on my knees, beg it of you, that
' you either resolve to conclude this Match as

* you may, or speedily to break it off, and be-

* stow yourself elsewhere ; for no less than the
' happiness of your kingdoms, and the security
' of the king your father and yourself, depend
1 upon it. — All which things being considered,
the earl most humbly submitteth himself to the
judgment of this most high ai)d honourable court,
whether those delays, which several accidents
have brought lorth in this business, can be at-
tributed to his fault ; since, on the one side, he
hopeth it will evidently appear unto your lord-
ships, That he ever moved his majesty and the
prince to admit of no delays, but rather to
think of some oiher ccun>e; and on the other
side, it will appear by all his dispatches, that
he pressed things with the ministers of Spain to
as speedy a conclusion, as the utmost terms of
fair negotiation and good manners would bear.
And whereas it is pretended that the Spaniards
should take occasion, by entertaining the said
Treaties, to abuse his late majesty (which he
knoweth not) yet he saith, That he used all the
industry and vigiluncy that a careful minister
could do, and got from the Spaniards all the as-
surance?, by oatlia, words, and writings, which
could be expected from Christians, the which he
faithfully, without adding or diminishing, repre-
sented unto his said majesty ; and his said ma-
jesty in those times, was pleased to conceive
upou those assurances, that they dealt really
with him : and he conceiveth that his majesty
that now is, then prince, and the duke of Buck-
ingham, were pleased to write as much to the
late king's majesty, at their first coming into
Spain ; and thai all which the said earl had
written touching that employment, was there
avowed by the conde D'Olivnres, and conde de
Gondomar, to the said prince and duke, at
their arrival at Madrid; and he hopeth that,
when his dispatches are perused, it will appear
and be adjudged, That he served his majesty
with some measure of vigilancy, as well as
fulness of fidelity.*'

•' ill. To the Third Article the said carl
saith ; That he did not, either hv word or let-
ters to his late majesty or his ministers, evtol
or magnify the ureatness or power of the king
of Spam; nor represented to his late majesty
the supposed dangers, that would enttie unto
him if a war >hould happen between him and
the said king of Spain; nor ailirmed, nor insi-
nuated, as in the said Article is mentioned, to
any such intent as by the said Article is a!-
ledged. But if he did at any time speak or
write of the power or greatness of the king of

Spain, or represented any dangers to his late
majesty that might ensue, by entering into bos*
tdity with the said king, it was as a fmkhral
counsellor and servant ro his master, by way
of advice and opinion, which be ever dearered
sincerely, faithfully and truly, according to the
present occasion ; and in no wise to any such
intents as in the said Article is mentioned, nor
to any other evil intent or purpose whatsoever*
But he hath been so far from dissuading hit
late majesty to take arms, that he hath upon
all just occasions advised, that all fitting pre*
parations for war mi^ht be made, as (beginning
with the year 1621, from which time he is only
charged,) will appear by his speech in parliv
ment presently upon his return out of Ger-
many, ' That he hoped his majesty would
' iely no longer upon single treaties, but make
' all fitting preparations torn war, and that the
' parliament would enable his majesty there*
' unto:' and by the caie he took before his
going again upon his embassage into Spain,
that the establishment of an army, under his
majesty's own standard, of horse and foot, and
in his own pay, might be fully settled and pro-
vided for, as likewise his advice to the lords of
the council, thai his majesty mi"ht have a curb
upon the king of Spain upon all occasions, by
continuing of sir Roh. Mauusel's fleet upon the
coasts of Spain, as will appear by his letter
written from Vienna, '26th July, 1621, men-
tioned in the Answer to the first Article: by all
which it will appear that he laboured and en-
deavoured, as much as in him lay, that his ma-
jesty might be well prepared for any occaswi
of war which should happen ; and he no way
remembereth to have discouraged, or to have
spoken or written any thing that might have
been understood to have tended to the discoa-
raging, his said late majesty from the taking of
arms or entering in hostility agaittht Spain: or
for resisting of him or his forces from attempt-
ing the invasion of his said late majesty's domi-
nions, or the dominions of his late majesty^
confederates, friends, or allies, as by the said
Article is charged against him; nor remember-
eth that he hath had anv cause so to do : but if

•

he hath in any kind spoken. or wiitten of Spain,
or the power of it, it may have been to his late
majesty or to his majesty that now is, by way
of discourse,, speaking of the solidnesh of the
Spanish proceedings, of their serious and deli-
berate debating of business before they re-
solved on them, and of their constant pursuing
of them when they were once resolved; wish-
ing that England and other nations would
herein imitate them ; for that he supposed the
right way to impede the Spanish greatness »ai
to grow as wise as they, and so beat thimat
their own' we ipons : hut, otherwise, he is con-
fident he hath never been heard to speak, ur
wri'e, anv thing that might give an v uiroror
discouragement to his late majesty ; or hi" rhiff
nrni-teis; knowing that England need bat
little fear the power of Spain, having almost is
all attempts and enterprizes won fttonour apes
them. And as for his representing the daages

1401] STATE TRIADS, 2 C«. I. 102&— ife Earl <tf Bristol, and Lord Conway. [l40t

that might ensue upon a war, though he know-
eth not what is aimed at in that particular, yet
he is most confident, out of the integrity of his
owu conscience, that he hath neither said or
advised any thing hut what befitted a faithful
counsellor and an ambassador ; which was truly
to deliver his opinion as he understood it upon
the present occasion : and as for the affirming
that his majesty's quiet should be disturbed, and
he not permitted to hawk or hunt, he reinein-
bereth not what discourse he may haVe had or
written to any person bow fit it might be, upon
the being embroiled in so great a war, seriously
to attend it, and make it our whole work : but
as he is confident it will appear, that what dis-
course soever it may have been, it wanted not
the true zeal and affection which he hath ever
borne to the king's sen ice : so he hopeth it will
be found not to want that due respect and re-
verence, on his part, which he ought to shew
to so gracious a master ; neither can it be con-
ceived, that the considerations of hunting,
hawking, or ease, should bo considerations
worthy so great and prudent a king, to with-
hold him from a war for the good of Christen-
dom and his kingdoms, if he should be unjustly
provoked thereunto.

u IV. To the Fourth Article the said earl
saith ; — That he did not any thing contrary to
his duty and allegiance, or contrary to the faith
and trust of an embassador, as by the Article
is alledged ; but did endeavour the service and
honour of his late majesty, and no corrupt or
sinister ends of his own, or his own advance-
ment, as by the Article is alledged. And as
for the conference which is pretended he should
hold concerning the Treaty, that being told
there was little probability that the said Treaties
would or could h:tve good success an^ tnal "e
should acknowledge as much; and yet say that
he cared not what the success thereof would be.
but that he would take care to have his instruc-
tions perfect, and to pursue them punctually ;
and would make his fortune thereby, or words
to that effect ; he doth not remember to have
held any such discourse, though it is true, that
the time hath been, many years since, when ire
thought the Match very unlikely to be effected,
in regard of the unequal Answers which were
given in prince Henry's time, and the unlikeli-
hood of accommodating the differences of religi-
on and f iith. Further, as to the reviving of the
said Match for his majesty that now it, that in
the first he wished and advised a Protestant
Match; hut, in the duty of a servant, under-
standing (tint both their majesties really desired
the Mutch with Spain, he did seriously and
faithfully intend the service and honour of their
majesties, and effectually endeavoured to pro-
cure their ends ; and it is very likely he might
say he would get his instructions perfect, and
to pursue rh^m punctually, as he conceiveth
was lawful and tit for him to do ; but for the
latter part of this conference, that he should
say he would make a fortune by it, or any
words to that effect, he was in the year 1621,
and ever since, of that rank and quality, both

in regard of his employment, fortunes, and his
master's favs-ur, that he assureth himself he did
not; and dare answer so far for his own discre-
tion, that it was impossible for him to hold so
mean and unworthy a discourse.

" V. To the Fifth Article the said earl saith ;
— That he did not intend or resolve, that if the
Marriage in the former Articles mentioned
should have been effected, that thereby the
Romish religion or the professors thereof should
be advanced ; or the true religion and the pro-
fessors thereof discouraged or discountenanced,
us by the said Article is alledged ; nor did he, to
any such end or purpose or otherwise, at any
time, counsel or persuade the late king's majes-
ty to set at liberty the Jesuits and priests of the
Homish religion ; or to grant or allow unto the
Papists and professors of the Romish religion a
free toleration or silencing of the laws made
and standing in force against them, as in the
said Article is also alledged; but contrarily,
upon all occasions, to the utmost of his power,
did labour to prevent all the inconreniences in
point of religion, that might come by matching
with any princess of a differing religion ; as
well appeareth by a Paper of his own opinion,
That his majesty should marry with a lady of his
own religion, as hereafter mentioned in his An-
swer to the 7th Article : and for further proof
thereof he saith, that in the whole Treaty with
Spain he ever stood stricter in point of religion
than by his instructions he needed to have done,
as will appear by the testimony of sir W. Aston,
and his dispatches l'2th December 1622, and
other dispatches, which he desireth may be
read : and as for counselling or persuading to
set at liberty Jesuits or priests, he utterly de-
nieth to have done any such thing, as before he
hath ansvt ered ; although it be true that the em-
bassage of Spain being far different from em-
ployments in other places, where there is a
body of our reformed religion, and where his
majesty hath kindred and allies, whereby hi*
majesty's ministers may he informed of the
necessary occurrents of state, without the help
of a priest or Jesuit ; hut in Spain there being
none but Roman Catholics, nor any other man-
ner of correspondency or intelligence but by
them, the ambassadors must make use of all
sorts of people, especially of Jesuits and priests;
and to that purpose ambassadors thither have
always a particular warrant under the king's
hand, to treat and make use of priests, Jesuits,
and all other sorts of men, unless it be such as
he proclaimed rebels; and divers times the
ministers employed in Spain, to gratify some
whom they there employed for the king's ser-
vice as he helieveth, at their particular suit,
moved his majesty to extend erace and favour
to «>oine particular friend or kinsman of theirs,
hi-iug a R'mmn-Cutholic and imprisoned in
England; and this he remember* th to have bap*
pene<l toothers but doth not remember to have
written himself to his late majesty in that kind :
and, as concerning his advice and counsel to
set at liberty Jesuits aud piiests, the granting
to the Papists a toleration, or a silencing of tho

1405] STATE TRIALS, •! Ch. I. 1820.— lite Earl qf Briitot, and Lord Conway. [1400

* ainbnssadnis, tint it stall lie ! betwixt ministers, of princes in (lie lite cases:
u them tn assign a discreet person to itti-l ns fur [lie delays of Spain, they could never
n such sufficient lawyers as shall be '. be so ill, and with so little colour complained

* thought fit to lake cure lu the strength, villi- I of, as at the time of his majesty's Coming thi-
' dity, and security of the said eranU: and his ' tlier, for that n certain lime was, before then,
' majesty's attorney shall have charge to receive [ prefixed fur the commit of the Dis*t nsatioti,

* and admit the said lawyers to the sight and ' viz. in April l(i'J3, :it the furthest, which wn

* judgment of the said draughts, and in any | the nest mnuth alter the prince's arrival at Mn-

* doubts to give llieni satisfaction, or to use such , drid ; nnd the desponsories were 10 have been

■ legal, necessary, end pertinent north and ' within 40 days following, mid the infanta to
' phrases, as he the said lawyer shall propound j b^gin her journey into. England wiihiti 'i0 days

■ for the security of the Human Catholics, and | alter : so as 3 Months patienee longer would
1 sure making of the said grants.- And we do liave shewed the issue of the businiss, without
' further declare, That his majesty's pleasure is ! putting the person of the heir apparent o "

iiake a dispatch into Ireland unto bis de-
' puly there, by the hands of the lord treasurer
» and secretary of state sir George Culvert, for
' the present confirming anil sealing the things

■ concerning the Homnn Catholics answerable

■ to die articles of treaty, his royal promise and
' proceedings here. And for Scotland, that his
'majesty according to the constitution of his
' affairs tin re, and regard to the public good,
' and peace of that kingdom, and ns wion as

■ possible, will do all that shall be convenient
' for the accomplishment of his promise in grace
' and favour of the Homan Catholics his sub-

* jects, conformable to the Articles of Treaty

* of Marriage.'

" But this Declaration, the said Earl saith
•nd amnneth; was the effect of the duke of
Buckingham 's negotiation, and treated and con-
cluded by the lord Conway with the Spanish
i. ambassador here, whilst the prince was in Spain;
neither was his privity or advice in it ; for if be
bad known it, lie should have protested against
it. All which, together with the difference be-
twixt the conditions or religion agreed at the
Trent j of Madrid, 13 Dec, 1619, by the said
Earl, and the said sir Walter Aston, being by'
•heir lordships considered, the said Earl doubl-
ed! not but that it will manifestly appear whose
•ndcarour it was to advance the Romish reli-
•jon, and the professors thereof; ami judgrs
™ ■wid earl most unfonunate to be charged
■r«th an Article oj tliib, kind.

.*' VI. To the Sixth Article the >ni,l enri

■"'li. rhal lie gave nut any false informati'in

'"" "' gence concerning the Treaties, in the

"" Article mentioned, either unto the late

«* onti his majesty that now is, tli

■itlier ilnili ha I. iow that his late n

rith Spain, was

jsion of these Trea-

>ver the illintet

•nd the emperor, to lake

at by the said Article is

i-.rt smith. That the as-

" late majesty nnd If

ling these freatie

innesty and breac

"im to have held

era given him by

'pain, and their

imminent hazard for the trying
experiment; and it is an odd kind of argu-
ment, that, because i lie Spaniards were suspect-
ed to have dealt falsely, auil so the less to be
trusted, therefore the person of the prince
ihoukl be put into their bands to try conclu-
sions; hut the truth is, that though that was
made the pretended ground and occasion of
the journey, it was neither the assurances of
the said earl nor the jealousies of Spain, but
other motives, that were the original cause of
s majesty's said journey ; as rholl be sutfici-
illy made appear in due time: and die said
,rl having gOI an inkling tliereof, by something
that was let fall by the aonde de Gundnmnr
to that purpose, instantly dispatched away Mr.
Gresley lo his late majesty to have the journey
prevented ; whn, upon the confines of France,
met his majesty and the duke of Buckingham
on their journey towards Spain, and told them
ns much : so that although he canfesseth what
is said in tin* said Charge to he true, viz. That,
by the said journey, the person of Hie prince
and the peace nnd safety of this kingdom did
undergo such apparent danger, as, at the re-
membrance thereof, the hearts of all good
subjects do tmnblu ; yet the blame of it is
duo to the authors ami advisers of the said
journey, and nut to the said eat! ; and although
it pleased God, tn the exceeding great joy and
comfort of the said earl and of all good men,
tu send his gracious timjesty home with safety ;
yet never was the person of eoy prince, upon
such grounds, exposed to so great a hazard;
am] in such casts, not the success but the
counsels on nb t to be considered.

" VII. 'lo the Seventh Article the raid earl
saith, That be did not move nor persuade his
majesty then prinre, to change, bis religion, nei-
ther in the maimer in the said Atlicle mention-
ed,, nor in an)' Other manner whatsoever; nei-
ther did he conceive that the Charge in itself,
■sit is hid, will in any reasonable construction,
bear any such inference ns is made thereupon;
sons he conceiveih he ncrdeth nut to make
any further or oilier Answer thereunto ; yet ,
that it may apt-ear llint the motion he made. '
unto the said prince wo* not traitorously, falsely,
or rui.ninjj.lv, or without ground, nor to any
such intent as in the laid Article is supposed ;
and to manifest unto ilii* high and honourable
court, how fur he w
lie saith, That be doth »(

it acknowledge that wi

1403] STATE TRIADS, 2Cn. 1. 16M.— Impeachment <tf tkc D. <tf Buckmtfm, [1404 v

' science only, and to which the rest of ha aaa-
' jesty's subjects are not liable. And to the
' end his majesty may make himself dearly
' understood, where it shall happen that any of

* those forfeitures and pecuniary mulcts hare
' been given away under his majesty's great
' seul ; his majesty will not hide that it if not in
' his power so to make void those letters patents,
' except they be voidable by law ; and then bis
4 majesty is well pleased that all Roman Catho*
' lies may in these cases plead in law, if they
' find it good, and shall have equal and legal
4 trial. And his majesty is likewise pleased,
( that his general pardon shall remain in being

* five years, to the end, all that will, may in thtt
4 time take it out ; and his majesty will grra
' order for the comfort of the poorer sort, that
' the pardon shall not be costly, but such like
' course shall be taken as was in a like occs-
' sion at his majesty's coming into England; aid
1 that it shall be lawful to put as many as can be
' possible into one pardon. — And we do further
' declare, That his majesty's will and pleasure
' is, to the end the ltoman Catholics his majes*
4 ty's subjects may have a present and a fret
1 (ruition of as much as is intended them by the

* Articles of Treaty of Marriage, to cause t

* present suspension under his majesty *s seal of
1 all those penal laws, charges and forfeiture*
' w hereunto the Roman Catholic subjects of hit
4 majesty have heretofore been subject, and to
4 which the rest of his majesty's subjects bate
' not been liable; and in the same grant aad
4 under the same seal, to give a disfjensation aad
4 toleration to till the Roman Catholics lusmft-
4 jesty's subjects, as well priests, as tempoitl
4 persons and others, of and from all the penal-
4 tits, forfeitures, troubles, and incumbrance*
4 which they have been or mav be subject US
4 by reason of any statute or law whatsoever,
4 to the observation whereof the rest of his ma-
jesty's subjects are not bound. We do like*
' wise declare, thai his majesty hath promised
4 on his royal word, that the execution shall be
1 no ways hurthensoine or penal to the llomaa
4 Catholics, but that for the manner of prrfi-
4 leging, and freeing them from that, lie mwt
4 confer with bishops and advocates, into which
4 he will presently enter and expedite by all
4 means. — And we do further declare; Thtt
' his majesty's intention is presently to pursoe
4 his I'm mer directions (which had been before
4 executed if their excellencies -hud so thought
4 good; to put under his seal severally tltesaid
4 pardon and suspicion, and di*pcn*ation; and
1 that his iiuijestv's attorney and learned couo-

* sel srnll h;i\e referred to them the charge to
' pen l Ik in with all those etfectual words, clause*,

* expressions, a;id reservations, which may pit*
4 scutly t»ive fruition to the Roman Catholici

* his majesty's subjects, and make them invie-
' Lihie in the fruition ot all that is intended and
' promised by his m.jesty in the Ai tide* of alif-
' riage, and his majesty's further grace. — And
' we do declare, That bis majesty's further will
' and pleasure is, for the better satisfaction and
4 discharge of the care and endeavour of the*

laws against them, he saith, That his late majesty
was engaged by the Treaty of Madrid in 1617,
in divers matters concerning religion, at like-
wise by promises to the conde de Gondpmar,
and his letters to the king of Spain, of the 17th
April, 1620, wherein he is pleased to promise
some particulars in favour of Roman-Catholics,
as by the said letter will appear. And, not-
withstanding the said earl had sufficient warrant,
under the king's own hand, to assure the king
of Spain, that whatsoever was agreed in the
said Articles, or in the said letter, his majesty
would sincerely perform ; yet the said carl whs
60 cautious in that point, that when, for the
conclusion of the Match, the other articles of
religion being all agreed, it was pressed by the
Spanish ministers, that a clause, if convenient,
might be inserted, with protestation, that the
form and way thereof should be wholly left to
his majesty's wisdom and clemency ; and that his
majesty's Roman Catholic subjects should ac-
knowledge this grace only to come-from the king's
mercy and goodness ; yet the said earl would
not condescend or assent thereunto, but only
de bene es*', as by his letters to Mr. Sec.
Calvert, bearing date 8th Oct. 1622, will ap-
pear ; thereby to give his majesty tune to take
it into consideration, before he would engage or
bind him iu this point. — And the said earl saith,
That he did not by letters, or otherwise, ever
counsel or persuade his late maje^y to grunt
unto the Papists and professors of the Romish
religion, a free toleration or silencing of the
laws made and standing in force against them,
but ever protested against any such toleration;
and when any such proposition hath been of-
fered to be made in Spam, he hath ever refused
so much as to give ear unto it, or to suffer it to
be propounded ; although it he true he hath
since Seen a writing touching Pardons, Suspen-
sions, and Dispensations, for the Romau Catho-
lics, bearing date 9th Aug. 1623, signed by
the lord Conway and others in England, where-
with he was never acquainted; which paper is
that which followeth :

The Declaration touching the Pardons, Suspen-
sions, and Dispensations of the Romau Ca-
tholics.

1 For the satisfaction of their excellencies,

* the marquis Ynojosa and Don Carlos de Colo-
' nia, the lords ambassadors for the king o(
g Spain; and to the e:td it may appear thai his
' majesty of Great Britain will presently and
' really put in execution the grace promised and
1 hit- nrieri to the Roman Catholics his maji sty's
' subjects, and of his own grace more than he is

* tied to hv the Articles of Trt-itv of M'uriuce.
' — We do declare in his majesty's nam;?, That his
' majesty's will and pleasure is, that a legal and
' aulhentical pardon snail he passed under tlie
' great s al, wherein shall he freely pardoned all
' those penalties, forfeitures and st izures, indicr^-
' meuts,convictnients, and incumbrances what-
' soever, whereunto the Roman Catholics are
' liable or have been proceeded against, or might
1 be, as well priests, as others, for matters of con-

1405] STATE TRIALS, 2 Ch. I. 1 626.— the Earl of Bristol, and Lord (Jonway. [HOG

betwixt ministers of princes in the like cases:
and as for the delays of Spain, they could never
be so ill, and with so little colour complained
of, as at the time of his majesty 's coming i hi-
titer, for that a certain time was, before then,
prefixed for the coming of the Dispensation,
viz. in April 1G'J3, at the furthest, ivhich was
the next month after the prince's arrival at Ma-
drid ; and the desponsories were to liave been
within 40 days following, and the infanta to
begin her journey into. England within 20 days
after: so as 3 months patience longer would
have shewed the issue of the business, without
putting the person of the heir apparent of the
crown into so imminent -hazard for the trying
an experiment; and it is an odd kind of argu-
ment, that, because the Spaniards were suspect-
ed to have dealt falsely, and so the less to be
trusted, therefore the person of the prince
should be put into their hands to try conclu-
sions; but the truth is, that though that was
made the pretended ground and occasion of
the journey, it was neither the assurances of
the said earl nor the jealousies of Spain, but
other motives, that were the original cause of
his majesty's said journey ; as shall he suffici-
ently made appear in due time : and the said
earl having got an inkling thereof, by something
that was let fall by the sonde de Gondomar
to that purpose, instantly dispatched away Mr.
Gresley to his late majesty to have the journey
prevented ; who, upon the confines of France,
met his majesty and the duke of Buckingham
on their journey towards Spain, and told them
as much : so that although he confesseth what
is said in the said Charge to be true, viz. That,
by the said journey, the person of the prince
and the peace and safety of rhis kingdom did
undergo such apparent danger, as, at the re-
membrance tliereof, the hearts of all good
subjects do tremble ; yet the* blame of it is
due to the authors and advisers of the said
journey, nnd not to the said earl ; and although
it pleased God, to the exceeding great joy and
comfort of the said earl and of all good men,
to send his gracious majesty home with safety ;
yet never was the person of any prince, upon
such grounds, exposed to so ^reat a hazard;
a irtl in such cases, not the success but the
counsels ought to he considered.

" VI 1. To the Seventh Article the said earl
saith, That he did not move nor persuade his
innjesty then prince, to change hi* religion, nei-
ther in the manner in the said Article mention-
ed, nor in any other manner whatsoever; nei-
ther did he conceive thut the Charge in itself,
as it is laid, will in any reasonable construction,
bear any snch in ft re nee as is made thereupon ;
so as he conceive! h he ntcdeth not to make
any further or oilier Answer thereunto ; yet
that it may appear that the motion he made
unto the said prince was not traiterously, falsely,
or cunningly, or without ground, nor to any
such intent as in the fluid Article i* supposed ;
and to manifest unto thU high and honourable
court, how fur he wa< from any such intention,
he saith! That be doth acknowledge dial within

* excellencies the ambassadors, that it shall he
1 lawful to them to assign a discreet person to

* entertain such sufficient lawyers as shall be
1 thought fit to take care to the strength, vali-

* dity, and security of the said grants : and his

* majesty's attorney shall have charge to receive
4 and admit the said lawyers to the sight and

* judgment of the said draughts, and in any

* doubts to give them satisfaction, or to use such
1 legal, necessary, and pertinent words and
' phrases, as he the said lawyer shall propound

* for the security of the Homan Catholics, and

* sure making of the said grants. — And we do
« further declare, That his majesty's pleasure is

* to make a dispatch into Ireland unto his de-

* puty there, by the hands of the lord treasurer

* and secretary of state sir George Calvert, for

* the present confirming and sealing the things

* concerning the Roman Catholics answerable

* to the articles of treaty, his royal promise and
' proceedings here. And for Scotland, that his

* majesty according to the constitution of his
' affairs there, and regard to the public good,

* and peace of that kingdom, and as soon as

* possible, will do all that shall be convenient
1 for the accomplishment of his promise in grace
« and favour of the Roman Catholics his sub*
' jects, conformable to the Articles of Treaty
' of Marriage/

" But this Declaration, the said Earl saith
end affinneth ; was the effect of the duke of
Buckingham's negotiation, and treated and con-
dueled by the lord Conway with the Spanish
ambassador here, whilst the prince was in Spain ;
neither was his privity or advice in it : for if he
had known it, he should have protested agaiust
it. All which, together with the difference be-
twixt the conditions of religion agreed at the
Treaty of Madrid, 12 Dec. 1629, by the said
Earl, and the said sir Walter Aston, being by'
their loirhhips considered, the said Earl doubt-
etb not but that it will manifestly appear whose
endeavour it was to advance the Romish reli-
gion, and the professors thereof; and judges
the said earl most unfortunate to be charged
with an Article of this kind.

" VI. To the Sixth Article the said earl
taith, That he gave not any false information
or intelligence concerning the Treaties, in the
said Article mentioned, either unto the late
king, or unto his majesty that now is, then
prince : neither doth he know that his late ma-
jesty by hopes taken from his the said earl's as-
surances, or by jealousies or suspicions from the
delays in the proceeding with Spain, was en-
forced for the speedy conclusion of these Trea-
ties, or to the intent to discover the ill intention
of the king of Spain and the emperor, to take
bis journey into Spain, as by the said Article is
supposed ; for the <aid earl saith, That the as-
surances which he gave his late majesty and his
majesty that now is, concerning these Treaties,
-were such as it had been dishonesty and breach
of his duty and trust, for him to have held
beck : being the same that were given him by
the emperor, and the king of Spain, and their
ministers, upon at greet assurances as can pass

1407] STATE TRIALS, 2Ch. L \<B6.— Impeachment tf the D. tfBmku&m, [MM

few days after his majesty's coming into Spain, \ yond the .conditions which had been formerly
whilst he had that great honour to have his ma- | agreed upon in point of religion ; and to make
jesty lodge in his house, and to have so royal | his conditions the worse for the great oblkaboa
a guest: finding, by the Spanish minister*, that ! he had laid upon them, by putting himself into
tbere was a general received opinion in that! their bands; whereat they took inch offence
court, that his m*je sty's coming thither was j that they estranged themselves from him for a
with intentions to become a Roman Catholic ; | long time after. And that the said earl did thai
and the conde Gondomar having that very ' proceed with the condea, and that this is oot
morning pressed the earl not to hinder so ■ a Dew-framed Answer to satisfy the present
pious a work (as he termed it) ot his majesty's ', objection, but that which really and indeed
conversion, and seeming to he assured of the passed, will appear by his dispatches sent unto
duke of Buckingham's assistance therein: his , his late majesty before his majesty that now a
majesty beiug all alone in a withdrawing room ' came out of Spain; and were first there shewed
in the said earl's house, the said earl kneeled ■■ unto lus majesty, bearing date the 9th Sept.
unto him and told him, That he had business 1692 ; so that although it be true that the Mid
to impart unto him which highly imported bis earl did not dissuade his majesty (for there was
majesty to know, so he might be sure his bold- i no cause for it) yet without eipecting bis ma-
ness therein might he pardoned, which his ■ jesty *s Answer, he first made a true and clear
majesty graciously promised ; and thereupon j profession of his own religion ; and when his
the said earl told his majesty, That the general . majesty had declared unto biro his zeal and
opinion in the court was, that his majesty 'scorn- | constancy, he humbly besought him that tot
ing thither was with intention to he a Roman ; Spaniards might nor, for any respect, be held
Catholic, and there to declare it ; and con- j longer in any hopes in that point. — And Le-
fesseth that, at the same time, in regard of; cause a point of religion is that which all nea
those things which he had heard, he humbly : of honour and honesty should chiefly desire to
besought bis majesty to deal freely with him, as j clear, especially having imputations of that na-
with a servant of whose fidelity he might be I ture laid upon them, as the said earl hath ia
confident, or words to that effect; but be was j the said Article; he humbly beseecheth your
so far from persuading his majesty to be a Ro- i lordships that he may not seem to digress from
man Catholic, that, without expecting lus ma- i the Charge, in tendering to jour lordships st-
jesty's Answer, he declared himself to be a Pr*- ■ tisfaction in that particular, not by the afort*
testanr, and so should always continue; yet, said verbal discourse only, (which he protested
he said, he would serve his majesty, and la- ' was with much zeal to religion, and duulal
bour to advance his and the king his father's i care to die prince, in that kind) but by soot
affairs, with as much fidelity and honesty as j written testimony of his former opinion ; bota
any Catholic whatsoever; and his majesty to the Match ami Religion, when he was first

was pleased then to make unto the said earl
a full and clear declaration of his religion,
and of his constant resolution therein ; and
seemed to be much displeased that any should
have so unworthy an opinion of him, as to

employed into Spain for the treating of tfc*
Marriage in 1617 : for his late majesty haviac
commanded' him to give an Account thereof
unto his majesty that now is ; he, at his de-
parture towards Spain, presumed to give uat»

think he would, for a wife, or any earthly his majesty his opinion in writing, signed with
respect whatsoever, so much as to waver in t his own hand, to be kept as a testimony of fail
his religion: whereupon the said earl besought future actions; the copy whereof is tins thai
bis maiesty to pardon his boldness and th«:n folio weth :
in treated him not to suffer his business to he I T, ., n

overthrown, hy permitting that conceit of his; lne said Upinion.

conversion any longer to remain in the Spani- ! * Sir ; The opinion which I have ever pi*
ards, nor to do any thi.ig that might give them ' sunu-d humbly to offer unto his majesty coo-
hope therein, alledging, that it was impossible ' cerning your highness'* marriage, hath been,
the Marriage could be without a dispensation, ' that both in regard of conscience and .•atb-
and so long as die Spaniards, who were to pro- ' faction unto his majesty's people and allies:
cure thii dispensation, should have the least * likewise for the security and quiet of your
hopeot his conversion, they would rather clo^ ' majesty's estates, your highnes* might take
the dispensation than hasreii it ; for whilst they * for wife some protectant princes*, although
should have any hope at all of his conversion, * she neither were daughter to a king, nor had
they would never route t themselves with the ' s» ample a portion as might relieve the Linfi
part to which they were t' id by the a. tide* * present necessities and wants ; for then there
agreed upon with the said tarl and *ir W. ' might he many way* fonnd to help the kinjft
aUoii. At which time hi* majesty was pleased ' want*, either by some few years provided*
to approve of hi* opinion, and said, he would i and frugality, or by winning the niicctioBS of
expect the di*peii»ution : and did thereupon af- ' the peoplr to the supplying of his majesty bj
terwards send Mr. Audrews to Koine »o hasten c w.iv of subsidies in parliament ; whereas coa*
it. And the next day the «oud earl dealt veiy 4 traii«i*e, if the number and power of the pa-
roundlv with the said ro.id; d'Olivare* sind * pi-t* shall be increased, as undoubtedly they
Gondomar, tolling them, It was a discourteous « will be by your highness matching with aaf
manner of proceeding, to press his majesty be- . * catholic princess, through the concession whip

14(H)] STATE TRIALS, 2 Ch. I. 1626.— the Earl of Bristol, and Lord Conway. [1410

must lie of necessity for the exercise of tier | lege in Oxou, (all of whom were his majesty'*
religion for herself unci family, within your j chaplains in Spain) ns well for the frequent usu
high iit-sVs emit*, mid thereby by degrees , of the sacrament, and constant profession and

these two different religions shall trow to an
equality of power ; it will be great hazard
and disquiet to the state, ami not to be re-
dressed w ithout "rent danger, and courses of
more \ inlencc, than is usunl for this state to
put in practice. But in case his majesty out
ot' his wisd-jm and consideration best known
to himself, hold it fittest that your highness
matca with France or Spain or any other ca-
tholic, either for that the present tunc ulTord-
etli no protest ant princess, who is for years
or bluud .suitable for your liiglmess, or that
can in any considerable measure by the por-
tion, supply hi* majesty's present wants, I
then conceive that the match bv which this
state shall suffer lea&t incouveniency and cum-
bers, and whereby his majesty's necessities
shall by the greatness of the portion be the
most relieved, is with Spain, it such a match
may he made with such conditions of religion,
as other catholic princes will contract them-
selves withal. — Thus much I thought fit hum-
bly to present unto your highness, for that I
see jii v employment liable to the censure of
many worthy persons, with whom, though I
concur in my opinion, yet I seem much to
ditfer from them many ways ; for that it is
more proper to me to be true to my master'*
ends and services, than by the declaring this,
"to procure their satisfaction : Only to your
highness I thought tit to make this declara-
tion, and shall he a suitor to you for your fa-
vour, as you shall see me really labour to put
this in effect. And if his majesty shall, ei-
ther upon motion of parliament, or any other
proposition that can be made unto him, think
tit to proceed with a protectant mutch, as I
shall wish as well unto it us any man living,
so, I hope, in such sort to manage the present
business that I have in hand, that it shall ra-
ther much further, than any wav cross or hin-
der it. Hut in erase his majesty shall not he
drawn to any proposition for a pro testa at
match, 1 then conceive, that your highness
both doth, and will approve, that I really
and cllcctually labour to procure a match for
your highness in Spain, upon such conditions,
in point of religion and portion, as to his ma-
jesty shall stem tit.'
" liesides which declaration of the said carl's
opinion, he hath all his life, in all places, lived
and avowed himself a Protest nnr, never having
done the least act that was not suitable to the
same profession ; and that in all his foreign
employments, for the space of fourteen years,
of more than .000 persons of all qualities that
have attended him, there was never any one
perveited in his religion, save two Irish foot-
men, who in Ireland hud been bred Papists:
and he humbly de^ircth the testimony of Dr.
M awe and Dr. Wrcim, nud of Mr. Shmpforri,
one of the prebends of Canterbury, Mr. Bov-
well, parson of St. I^iwivnce in London, and
Air. Frewcu, divinity-reader in Mugdalen-Col-

vol. ir.

exercises of religion ; and the testimony also
of such catholics as are known to have been
his ancient acquaintance and friends, and to
examine them upon oath, whether either pub-
licly or privately, in Spain or in England, they
have known liim in any kind to make shew, or
so much as forbear upon ail occasions avowed-
ly to declare the religion tlrat he professeth ;
and that the said Mr. Frcwen and Mr. Wake,
his now chaplains, may be also examined, whe-
ther in extremity of several sicknesses, where-
unto he hath of late years fallen, he hath not
ever settled his conscience with them towards
God, and made a confession of his faith, re-
solving as befitted a Protestant aud a good
Christian.

" VI If. To the Eighth Article the said earl
saith : — That he did not at any time, or in any
place, endeavour to persuade the prince to
change his religion, and to become a Roman
Catholic, or to be obedient to the usurped au-
thority of the pope of Ilome ; neither did the
said earl, to that end or purpose, or otherwise,
use unto his majesty, then prince, the words in
the Article mentioned, viz. 4' That the state of
England did never any great tiling, but when
they were under the obedience of the pope of
Rome, and that it was impossible they should
do any thing of note otherwise/' as in the said
Article is charged : but the said earl acknow-
ledged), that upon occasion of a letter, which
came to his majesty then prince, putting his
majesty in mind ot the great actions of his
royal progenitors in the Holy Wars ; and that
the great kings of those times did not only em- -
ploy their forces, but, in their persons, went
into the Holy Lund ; the earl believeth, that,
by way of discourse only, and not otherwise,
he may have said, that in regard of the diffe-
rence of religion, it were of more difficult v to
undertake such great actions now than in for-
mer ages ; and it might well be instanced in
the present Treaty of Marriage, wherein the
pope's consent was to he obtained ; and to this
effect, and upon the like grounds, he was con-
fident there were very many that have, nay
few of nearness about his late majesty that
have not often heard his majesty say, that he
was the true martyr, that suffered more for his
religion than all the princes of Christeudom be-
sides ; instancing in divers particulars but es-
pecially in that he could not match his children
with kings of their own rank, without the
pope's leave. But the said earl saith, That he
never all edged any such thing to other purpose,
than to shew that only conscience and love t.»
truth, (in which regard protesunis sutlVr.-d
much) and not any temporal respects, made us
constant and zealous to the profession ot our
religion ; by which discourses lie ever att. :ruiud
much to the sincerity and honour of thr p ^
testant religion ; Hut never u*cd it n- hii »*g^
nient to persuade, as in the u^cu*i»tioo »% ^
nuated. Besides, be conct*\cih; ih-*:* b}

41

1411] STATE TRIALS, 2Ch. I. 1020.—

of Answer thereunto, the same question may
be asked which his majesty was pleused to ask
of the said earl in the 7th Article, viz. ' What
the said earl saw in his majesty that he should
think him so unworthy as to change his religion
for a wife, or any carrhly respect whatsoever?'
So why should it be thought, that the becom-
ing more fit to undertake great actio* is in the
world, (being a mere moral temporal respect)
should be an argument to persuade, in consci-
ence, so religious end wise a prince, and so
well instructed as his majesty is ; as though the
soul of a Christian prince was to be wrought
upon, in point of truth and belief, by temporal
and worldly respects of conveniences and great-
ness. It were necessary, for proof of this as-
sertion, ' The earl's persuading his majesty
touching his religion,' to produce some argu-
ments that he used out of the scriptures to sa-
tisfy him, in point of conscience, in come tenet
of the Romish church ; or that t.e procured
any conference with learned men for bis satis-
faction in point of religion ; nthrrw i>«r, the ar-
gument used in this Article nguin*t the said
earl dotli, as he couceireth, carry little strength
to prove the charge of persuading of his ma-
jesty either in regard of itself, or indeed in re-
gard of his majesty's piety."*

" 1 \. To the Ninth Art:cle the said earl snith,
That there was a discourse in Spain, of the way
of accommodating the prince Palatine's affairs;
and, by way of discourse, it was moved, That
the marriage of his eldest son with a daughter
of the emperor, and his son to he bred in the
emperor's court, would be the fairest way for
pacifvins and accomodating those businesses;
and the earl, bv wav of such discourse, and not
other* ise, did say. That he thought his late ma-
jesty would not he averse, either to the said
Match or the breeding of the prince Palatine's
son wiih the emperor: so as thereby the whole
patrimonial estate of the prince Palatine, with
Che disnitv electoral, might be fully restored;
that his son mi^hr be brought up in his own
religion and have such preceptor* and such a
familv as his said late mniestv and his father,
(meanirc the prnoe Palatine; sh>>u!d appoint,
and ther to ha»e free exeicise of their religion:
for so h:s 1 -.te nut j est i had of en declared himsclr

to1 ■

to the said earl, and nished him to !ay lm!i of
any <v.*;i>ion for entertninine of any such pro-
portion: mid otherwise thin so; and upon the
terms aforesaid, and bv that wav of conference
and discourse only, t.e rielnered not a:iy opi-
nion to Lis rt!:i'€«tT at his mai*stv'$ L-tnx in
Spain; iV-r the said carl is very o -undent that
hi* maje-ry was returned out of Spnin. before
any proportion wasm*dc for the said Marriage,
outer th.ut by way of di-eo^rse as aforesaid ;
the >.«rae a* toe *atd earl believeth, beinz nr*>c
nv \ed aud debated on, by way of proposition.
here in Knclard betwiu Mr. Spcretarv Calf ert
and the auibjamfor of the king ot* S|aun, about
the SdofOrt. 1693 5 ■yUt£aiM^i.M|M

Impeachment qf the D. qfiBuckingham, [1419

supposed with honour, to accommodate those
great businesses; and wrote to that purpose to
his son-in-law, the prince Palatine, by his let-
ter, dared 19th Oct. 1623, a copy of which
letter together with a copy of Mr. secretary
Calvert *s relation, the lord (Conway by his Lit*
majesty's commandment, sent unto (he said
earl, the tenor of which, translated out of
Fiench, is as followeth :

• We have thought good, that we may pro-
' vide best and mo5t soundly for your affair*,
' not only to procure, but also to assure your
' peace, were to cut up by the very roots thit
' evil which hath been settled in the heart rf
' the emperor, by the great displeasure and
' enmity he hath couceived against you. For
' the removing and quite extinguishing of which,

* it beemeth to ns no better or more powerful
. ' means can be u«ed, than a good alliance,

' which may be proposed by us between toil*

* eMest son, and the daughter of the said em-

* pcror, upon the assurance we have, we shall
4 not be refused in this nature, if vou on toot
' part will give your consent. And for tee
' more surety of the good success thereof, »e
' arc determined, before nny such propesfri'-a

* be made to the emperor, to interest the kin;
4 of Spain with us in the business, who, w*
" trust, will lend us his helping hand, as «u

* f,»r the effecting of it, and bringing it to a
' good conclusion, as in procuring liken isf.

* that the condition be duly observed. Amount
' which conditions, if it happen that the em-
' peror should demand, that your son, duns;

* his minority, should be brought up in hi* coot,
' we <ha!l tell you, that we, for our own part,

* see no reason why you should >tick at irT cjw
" such conditions as I e mi^ht he tied u:.t'». ;■»

* wit, That the young pr ncc >hould h.ne a;uj
' ium *«.ich governor, us you shall pleas*' to ap-
4 point him, ;U though le he no Roman Ciifcu*
' lick : and that bcither h»», nor any rf hi.
' should be anv wav forced in matter of trV.^'
' conscience. And '«ur niwr.inz is. so to orii:

* our proceeding in t!..s Treaty, thit be:"."-
' your said *jn ne pit ir.to the hands oft.'?

* emperor, he will have a clear and certain ar

i Minnie i«f an honouraHc. enti:e, and purc-
' tj.il restitution of all wl.j;»oeter bi!jnsin2ti
' vou : As also we will t.:ke care to provide a-

* cordin^ly. as fuily aud exactly lor the y-

* surauco require for :h? !'!«erty of conscicirt,

* for him ar.d his d« :ne«t:cL«, n* thi»v have dvH*

* here »ith u> '.o.iching th.'se that have L«"
' g-anted thetn for the Infanta. And there*. rt
' seen g there is n^» :r..;^nicrionce at ail, t;-ai

* lr.ay cau>€ your irerrei.t** or bnck'vjrdm-*

* in tL:s buiine**. whvh «e, r «.ur p?.rfc>, t'tmt

* to re 'he t-e* . >h *rt«t. •'.u 1 n.-st i.:tao!ir::f«ie

* wjy tLtt yo'i can lake, f- r tr.e coir.pa**:i.* ■■'•'
' the ectire rrc*;s:i::: "»3, and »• .ikirr; vonr "nac*

* sure with the empero-, we L ..j.e your opia.^

* will ooocur w::h u* tbertii. ^r,d' shall uu.-r-i

* joo, by the first, to send c* \uur answer.1

9f wtiich letter. wr>ten ruKr LiiDkj^y'*
Hrav qtat of Spaiu, it appoaretb un:u Tf*"
felafK tka( there wart no pr^ position ef *»*

IMS] STATE TRIALS, 2Cn.I. m6.— the Earl of Brutol, and Lord Conway . [1414

Marriage betwixt the ion of the prince Palatine
and the emperor's daughter when that letter
was writteu : for therein his niaiesty saitb, he
was determined to interest the king of Span
in the business l>etbre any such proportion
should be made to the emperor : und it will
also theieby appear, what his late majesty's
opinion was of the conveniency thereof, which
he, the said earl, hopeth will acquit him, it", by-
way of discourse only, he declared what lie
knew was his majesty's inclination; which
with lK>uesty, he could not have concealed.
And the said earl saith, That he doth not re-
member wliat answer sir Walter Aston made
upon that discourse which lie then delivered,
nor what replies the said earl made; but sure
he is, that whatsoever the said earl said, or what
answers or replies soever were made, as it wus
by way of discourse, and not otlierwise, so it
was according to that which he then truly con-
ceived to be the best and easiest way to accom-
modate the business, and to be his mnjt sty's
pleasure, which the said sir W. Aston might be
ignorant of, as he is confident lie was ; and not
out of any disaffection to our religion, or any
sinister respect or regard to the house of
Austria, as by the said articles is intimated;
for he did not conceive the breeding of the Pala-
tine's son with the emperor, having a governor
appointed by his late majesty and his father,
and he and his domestics to have the free use of
their own religion, to be a matter of impos-
sibility, or of such dangerous conseqence in
point of religion, as to imply his conversion, as
by the articles is intimated ; well knowing that,
in the emperor's court, all princes there, though
his prisoners, aud others his counsellors and
servants about his person, and of great com-
mand in his armies, being avowed protestants,
have the free use of their religion : and it i<>
not to be supposed that ihe son of tlie prince
Palatine, grund-child to the king of Great
Britain, should be matched, and no care taken
to capitulate for the use of his religion, it being
ever granted to the meanest princess that is
bestowed; and his majesty's special care in
this point is rully seen in the said letter."

" X. To the Tenth Article the said earl
saith, That bv compuriug the above Article, of
his too much forwardness, with the second,
whereby he is charged with * continuing the
Treaties upon generalities, without reducing
them to certainties und direct conclusions,1
your lordships will perceive how impossible it
was for him to avoid eiception : but for direct
answer to the present Charge, he saith, That
lis did not presumptuously, nor to his yet
knowledge, break his instructions, nor set any
day at ail for the despoiiHories ; but was therein
merely passive, in admitting the day nominated
by the king of Spain, according to the capitu-
lation loi)g before made ; nor did lie presump-
tuously, wittingly, or willingly, disobey any
commandment or direction of his late majesty
ejr his majesty that now is, then prince, which
be could understand not to he countermanded,
myt>y precedent or future instructions, otherwise

explained. And for the better manifestation
of the truth of his proceedings in and con-
cerning the same, he saith, That on ihi day
of the depaiture of his majesty, then inincr,
frun i lie KscuriaJ in Spain, his highutss de-
livered unto him, in the presence* of the
commissioners on both side*., the powers, with
public di'duration taken in writing* by Serica,
secretary to the king of Spain, of the prince's
pleasure, and how he, the said carl, should use
them, viz. That he should deliver them unto
the king of Spain, upon the coming of tlie dis-
pensation cleared from Rome, according to
that which bad been agreed, which was to have
been within ten days after tlie coming of the
said dispensation. And he further saiih, 'I hut
it is true, that the prince afterwards, by his
letters, sent by one Mr. Clark, commanded
him, the said earl, not to deliver the said pow-
ers till he should have received security that
the Infanta, after being betioihed, should not
enter into any religious order ; and that before
he proceeded, he should send unto his majesty
then prince, such security as should be offered,
that he might judge whether it were suiticient
or not ; whereu|>on the said earl, as became a
iuithful servuur, presented unto his late majesty
and to his majesty that now is, then prince, such
assurances as were offered unto him for secur-
ing of that point, together with such reasons
as, he conceived, were fit to be offered to their
considerations ; which gave unto bis late ma*
jestv and his majesty that now is, then prince,
such satisfaction, as they were pleased to dis-
patch a post presently unto him, absolutely dis-
charging him of that commandment; as by
their several letters, dated the 8th of Oct. 1623,
wijl appear: asfolloweth,
" We have received your letters by Grisler.

* and tlie copy of them to our dear son ; ana

* we canuot forbear to let you know, how well
' we esteem that dutiful, discreet, and judicial
'relation, and humble advice to our sea:
' whereupon, having fully deliberated with
' self, and communicated with our dear
' we have resolved, with the good bkief et
' son, to rest upon that security*
' doubt, for the Infanta's taki
' order, which you, in
' think meet.'

"And by that other
now is, then prince, as

' Your letter to
' that doubt I
' Laurence, hath so

* think it fit
' leave it to
' nty you shall

Hereby the
from that
thereof a
which ass

alias

m both, that

A", few 2m fcyftTifto s i*er**

13th Nov. 1623, he was directly commanded
the contrary ; which commandment he readily
and punctually obeyed : and for such his inten-
tion, till he was so countermanded, be con-
ceived lie had not only sufficient warrant, but
had highly offended, it' he had done otherwise :
for, 1. For his proceeding to consummate the
Match he had warrant and instruction under
his late majesty's hand. 2. It was the main
scope of his anubassage. 3. He was enjoined
t ) that by the king and prince's commission,
under their great seals. 4. He had positive
orders, under his late majesty's band, by letter
since. 5. It was agreed, by capitulation, that
it should be within 10 days after the coming
of the dispensation. 6. His late majesty and
his majesty that now is, then prince, signified
unto him by- their letters, at the same time
when they discharged him of his command-
ment, touching the Infanta's entering into a
religious order, that they intended to proceed
in the Marriage, as by his majesty's letter of
the 8th Oct. 1623, will appear. 7. The powers
wjere to that end left in his band, and renewed
again after his majesty's return into England.
8. He had overthrown the Marriage without
order ; for although sir W. Aston and himself
■used all possible means for the gaining of time,
and deferring o» the desponsories, yet the king
of Spain cumed it formally to be protested,
That in case the said earl should insist upon
the deterring of the desponsories, he would
hold himself freed from the Treaty by the said
earl's infringing of the capitulation. And, in
truth, although the king or Spain should have
condescended to have prorogued the desponso-
ries until one of the days of Christmas, as by
the letter (which is by this Article acknow-
ledged to he mistaken) was required, yet the
prince's powers had before that time been ex-
pired. 9. He durst not, without a precise
warrant, put such a scorn upon so noble a lady,
whom he then conceived likely to be the

Srince's wire, as to nominate a day for the
larringe when the powers were out of date.
10. He was himself' sworn to the treaty. Lastly,
He could not, in honour and honesty, hut en-
deavour to perform that trust reposed in him,
when the powers were deposited in his hands,
with public and legal declaration taken into an
instrument by the secretary of state to the
king of Spain, leading and directing the use of
them ; for the same being then ins t rumen turn
stipuiatwH, as well the king of Spain was inter-
ested by the acceptance of the substitution, as
the prince by the granting of the powers, and
he could not in honesty fail that public trust,
without clear mid undoubted warrant ; which,
as soon as he had, he -obeyed : so the case
standing thus, the said earl is very confident,
that the supposed countermands, or directions
of restriction, when they shall be perused and
considered ot't will appear to have been a very
slender :md insufficient warrant against the
aforesaid orders and reasons, herein before
specified : and is olso as confident, that what
is assumed out of the said carl's dispatches,

Jtnycachmentof the D.qf Buckingham, [1416

will also appear to be so understood ; and that
if lie had proceeded to the execution of the
desponsories, before he received direct and
express commandment to the contrary, by the
aforesaid letter of the 13th Nov. 16/3, which
he readily and punctually obeyed, he had not
under favour, broken his instructions, nor de-
served any blame for lack of assurance of resti-
tution of the Palatinate, or temporal articles :
and first, of the Palatinate, bis majesty did not
send unto the said carl express direction not to
dispatch the desponsories until a roll conclusion
be had of the other Treaty of the Palatinate,
together with that of the Marriage, as by the
said Article is alledged ; only his late majesty
by the aforesaid letters of the 8th Oct. required
the said earl so to endeavour, that his majesty
might have the joy of both at Christmas;
whereas his instructions of the 14th March,
1621, nere express, that he should not make
the business of the Palatinate a condition of ths
Marriage ; and his late majesty's letters, of the
30th Dec. 1623, were fully to the same effect :
yet did the said earl according to what was inti-
mated by the said letters of the 8th Oct. so
carefully provide therein, that before the pow-
ers were to have been executed, he had an ab-
solute Answer in the business of the Palatinate,
that the same should he really restored, accord-
ing to his late majesty's desire ; and the eoode
D*01ivare% both in bis master's name and ba
own, desired the said earl and sir W. Astoa,
that they would assure his majesty of the real
performance thereof; and in treated them, if
need were, they should engage their boooon
and lives for it, as by their joint dispatch, of
the 23rd Nov. 1623, will appear ; and so mm*
the said sir W. Aston and the said earl agreed
should he delivered unto them in writing before
they would have delivered the powers, and so
the* said earl declared it ; the which answer is
writing should have been the same, which
since was given them of the 8th Jan. 1024 :
and both the said sir W. Aston, and the said
earl, were so confident therein, as they, by their
said letters of the 23rd of November, wrote to
his late majesty as folio weth, viz. — u That hs
majesty might according to his desire signified
to them by his letters of the 8th of October,
give as well to his majesty's daughter, tbst
Christmas, the comfortable news of the near
expiring of her great troubles and sufferings
as to his son, the prince, the congratuJatna
of being married to a most worthy and excel-
lent princess." — By which it will evidently
appear, he meant not to leave the business of
the Palatinate loose when he intended to pro-
ceed to the Marriage : but he coojesseth be
was ever of opinion, the best pawn and aaor-
ance his late majesty could have of the real
proceedings in the said business of the Palati-
nate, was, that they proceeded really to the
etiecting of the Match : and of the same opi-
nion was his late majesty also, and the lord*
commissioners here in England, at appeared)
by his instructions, dated the 14th Marcs,
1621 ; which opinion still continued in um>

1417] STATE TRIALS, 2 Ch. I. 1020.— the Earl qf Bristol, md Lard Comvay. [1418

as appeared) by his late majesty's letters of the
Tth Jan. 1622. — Concerning ihc Temporal
Articles, the said earl smith, When the despoil -
lories were formerly appointed to have been,
as he remenibereth, on the 9th Aug. before
the departure of his mujesty then prince,
(which was only hindered by the not coming
of the dispensation) the prince appointed him
and sir W., Aston to meet with the Spanish
commissioners; and they drew up the heads
of the Temporal Articles, wherewith the prince
and duke of Buckingham were acquainted;
and in case the dispensation had come, and
the desponsories becu performed on that day,
there had then no other provision been made
for them before tlie Marriage ; but presently
upon the prince*s departure, he, the suid earl,
caused them to be drawn into form, and sent
them to his late majesty the 24th Sept. 1623.
desiring to understand his majesty's pleasure
with all speed, especially if he disapproved
any thing in them ; but never received notice
of any dislike thereof until the aforesaid letters
of the 13th Nov. 1623, which put off the
desponsories. So it appeareth the said earl
was so far from breaking his instructions, or
from having any intention to have proceeded
to the execution of the desponsories, before
his majesty and the prince were satisfied in
the point of the Infanta's entering into reli-
gion ; or before convenient assurance as well
of the restitution of the Palatinate as for per-
formance of the Temporal Articles, that he
deserved, as he conceiveth, (under favour) no
blame, so much as in intention : but if he had
erred in intention only, as be did not, and the
same never reduced into act, tbe fault, as he
conceiveth, was removed by his obedience be-
fore the intention was nut in execution ; for
*o it is in cases towards God himself. — And
as to the matter of aggravation ogainst him,
• That he appointed so short a day for the
desponsories, as that without extraordinary
diligence, the prince had been bound:' he
thereto saith as before, That he set no day
thereto at all, nor could defer it after the dis-
pensation came from Rome, without a direct
oreach of the Match so long laboured in, and
so roach desired; yet he and sir W. Aston
used all possible industry to discover how the
notion or deferring the Match would be taken ;
and finding an absolute resolution in the king
of Spain to proceed punctually in requiring the
powers, according to the capitulations, within
ten days after the coming of the dispensation :
and at that time adso getting advertisement
from Home, that the dispensation was granted,
-and would presently be there: he, the said
eari, to the end that, in so great a case, he
might have a clear and undoubted understand-
ing of his late majesty's pleasure, sent a dis-
tatch, of the 1st Nov. with all diligence to the
ing; letting his majesty know that it would not
be possible for him to protract the Marriage
above 24 days, unless he should hazard the
breaking of it, for which he had no warrant ;
but that tliis was no new resolution, nor the

king so straitened in time as by the said* Ar-
ticle is pretended, will appear by the said earl's
dispatch of the 24th Sept. 1623 ; in which,
upon the scruple that was then made of the
Infanta's entering into religion, lie wrote to
the same effect, viz. "That if the dispensation
should come, lie knew no means how to detain
the powets above 24 days." So that although
that diiKculty happened not until about the
middle ol Nov. 1623, yet it was foreseen that
it must of necessity happen whensoever the
dispensation should come; and there was
warning of two months time given thereof;
viz. from the 24th Sept. to the 29th Nov.
which was the time appointed for the despon-
sories: so he humbly bubmitteth himself to
your lordships which of the two wa\s was the
safer and most dutiful for him to take ; whe-
ther upon inferences and conjectures, to have
overthrown so great a business; or, on the
other side, first to have presented to his majesty
with truth and sincerity, as he did, the true
state of his affairs, with his humble opinion
thtrein ; with an intention, if his majesty should
resolve to break the Match, that, Sir the said
earl's honest discharge of the public trust re-
posed in him, when the (lowers were deposited
in his hands, and for his sufficient warrant in so
great a cause, his majesty would be graciously
pleased to give him clear and -expiess orders,
which he then had not ; and, in the interim,
whilst bis majesty might take into consideration
the great inconveniences that might ensue, the
said inconveniences might be suspended ; and
the business kept upou fair term*, that his ma-
jesty might have his way and choice clear and
unsoilcd before him ; and as for the evil con-
sequences which are pretended would have
followed, if the said earl had proceeded to the
consummation of the Match before he had
express warrant to the contrary, he must, and
doth con less, he then understood the clean
contrary; for he supposed that his majesty
should speedily have seen the Marriage (which
he had so long sought) effected, and the prince
should have a worthy lady whom he loved ;
that the portion was much greater than was
ever given in money in Christendom; and that
the king of Spain had engaged himself for the
Restitution of the Palatinate ; for which the
said earl conceived a daughter of Spain and
two millions liad been no ill pawn, besides di-
vers other additions ol advantage to the crown
of England : wh» reas, on the contrary side, he
foresaw the prince would be kept at least one
year longer unmarried, a thing which highly
concerncth these kingdoms ; he doubted that
the Recovery of tlie Palatinate from the em-
peror and duke of Bavaria, by force, would
prove of great difficulty; and that < hris'en-
dom was like to fall in a general combustion ;
so desiring that his inaje*iy should luve ob-
tained his ends, and have the honour and hap-
piness not only to have giv» n peace, p'enty,
and increase to his own subjects and crowns;
but to have compounded the gte itest differ-
ences that bad been these many years in Chris-

1419] STATE TRIALS, 2 Ch. I. \626—Impeachmatt qfthc D. tf Buckingham, [US?

tendom ; and, by his piety and wisdom, to have

erevented the shedding of so much Christian
lood, as he feared would ensue, if these busi-
nesses were disordered. These reasons he con-
fes«eth, and his zeal unto his majesty's service,
made him so earnestly desire the elTeciing of
this business : and he cannot but think himself
an unfortunate man, that his majesty* affairs
being so near the settling to his majesty's coo*
tent, as he conceived they were, aud hoping to
have been to his master not only a faithful but
a successful servant, to see tlie whole state of
affairs turned upside down, without any the
least fault of his; and yet be the only minister
on the English or Spanish side, that reuiaineth
lunder disgrace.

" XI. To the Eleventh Article the said Earl
smith, That the said Article is grounded upon
A Petition, preferred by him to this most ho-
nourable house, supposed to be scandalous;
which your lordships, as he conceive th, accord-
ing to the custom and privileges of the botiAe of
peers, would have been pleased first to have
adjudged so to Iiave been, either for matter ap-
pearing in itself, or upon hearing of the said
earl ; for if the mutter appearing in the Petition
itself be not excepted unto, it cannot, as he
conccireth, by collateral averment, be taken fur
a scandal, till it be examined aud fouud false :
jbut, for a plain and direct Answer thereunto,
Jbe saith, That the said Petition doth not war-
rant any such inference, as by the said Article
is enforced ; and tliat lie hopeth to justify the
^contents of his said Petition in such sort as
•hall not displease his majesty nor deserve that
expression which is used in the Charge ; but
contrarily, what he hath said, or shall say
therein, in his defence, shall, in all things, tend
to the honour and service of his most royal
aaujesty, by reducing unto his memory divers
circuniatunces, and laying before him the pas-
sages of divers particulars, which, by undue
practices, have been either concealed from bis
majesty or raisrelated unto him.
• " Having thus ottered unto this high and
-honourable court such proofs and reasons as,
he hopeth, shall, in your lordships wisdom and
justice, clearly acquit him of any capital crime,
or wilful offence: it' it shall appear that, out of
error or juJ^ment, too much fervency of zeal
to his mnjeMy's service, or ignorance in the
laws, wherewith he hath not been able to be so
well acquainted as he ought, by reason of his
forji'i^n employments for ilie space of 14 years,
or by anv other wuys or means, he hath fallen
into the danger of the laws, for any thing par-
dou> d in the general Pardon made in the Slst
year of our late sovereign lord king James of
Euglind, of Melted memory, he humbly pray-
esh allowance of the said Pardon, and the be-
nefit theiiof; with this clause, That he doth
and \wll approve that he is none of the persons
exci pied out of the same ; and though he is
very co undent that he shall not need the help
of any I'ardou, having received several signifi-
cations, as well from his majesty *s own mouth,
that he had never offended his majesty, as lately

by several letters from the lord Conway, thai
he might rest in the security lie was, and sit
still, and should not be further questioued ; yet
he hopeth your lordships will find him so free
from blame, that lie stall need no Pardon: but
he hath served his late majesty of Ideated me*
inory, and his most gracious sovereign tliat now
ifc, with fidelity, care, and industry; and that
your lordsliips will take such course, as you, in
your wisdom, shall think fit, not only for the
upholding of the honour and reputation o( a
peer of this realm, after so many employ-
ments, but will likewise become humble and
earnest suitors to his majesty on his behalf
(which he humbly prayeth) that he may bt
restored to his majesty's gracious favour,
which, above all worldly things, he most de-
sireth."

The Earl of Bristol's Answer being ended,
the lord keeper demanded of him if he had
any thing more to say. Whereupon the Earl
complaining of the inequality between himself
and the duke of Buckingham, and that, by rea-
son ot his restraint, he was disabled Arum pro-
ceeding against the duke, and that Ids counsel
was disheartened to give him their free advice;
be earnestly urged their lordships promise to
make them both equal: and said, That bsf
counsel informed him there was no treason is
all the Charge against him, save only what
came near a statute touching religion, which
he humbly submitted to the house ; and be-
sought their lordships to take some course, by
the resolution of toe judges, or otherwise »
(they should please, that it may be declares
whether hia case be treason or not, before be
be further proceeded with : likewise, that at
might have liberty to examine bis witness**,
and that Mr. Attorney might not take boll
of any matter of form or legality to his pre-
judice.

To this Mr. Attorney replied, " That he
would not, but only insist upon the matter of
the Cliarge ;" and desired, as the carl had done,
that the house would direct the course how tk
witnesses might be examined, and the inaaoer
of liis further proceeding against the said tad'
The earl being withdrawn, the house agreed
to give bis counsel encouragement for their
free and faithful advice to him ; and it was
further ordered that the said earl should hare
liberty to go abroad in the custody of Mr.
Maxwell, the usher, to take the an? for ka
health's sake; which was granted at his bum-
ble request. The Earl being called in again
was made acquainted with tliis order, as (he
kind's own consent, for which he returned b»
majesty and their lordships his most humUt
thanks.

Answer* to the Articles of Impeachment.

June 8. The duke of Buckingham gave o

^^^— ■ - 1 ± ■ ~

* While under impeachment the Duke v*
elected Clumcejlor ot tlie University of Can-
bridge, which much offended the Commons, W
pleated the King. See % Cobbi ParL Hist. Jft
1 Rushw. 371etseq.

1421] STATE TRIALS, 2Ch. I. 1626.— the Earl of Bristol, and Lord Conway. [U3S

Iii's Answer to the house of lords concerning the
Articles of his Impeachment, see p. 1307. But
before he delivered it, be made the following
Speech:

44 My Lords, In a case of pressure considered
by itself, I have a fair beginning; as it is a debt
due to your lordships for tliis noble favour in
leaving it to my choice, whether I would answer
to every particular in the aggravation, or not.
I may without lessening any obligation, say,
the favour is of greater extent than at first may
be imagined ; for what is my cause now may
be yours or your posterities hereafter. I have
in a manner tied myself only to my Charge,
hoping, if I give your lordships satisfaction in
that, the aggravations will fall of themselves. I
could not well have followed the aggravations,
being composed of words, which, I hope, my
actions hare not deserved, and I am sure my
ears have not been acquainted with, without
some distraction of spirit : yet I have left no-
thing of them unanswered that is material. I
liave used as much speed to come to my Answer
as conveniently I could, without prejudice to
my cause, having already had my reputation
too lone upon the stage ; and hud your lordships
called fir it sooner, I hud been as ready as now
I am desirous lo detain your lordships as little
as may be, with the expectation of my particu-
lar, from weightier business. I was also grief ed
that my business should be the cause of the loss
of this year for foreign attempts, and the hin-
drance of those resolutions that would have
comforted our friends abroad, and secured our-
aelves at home : but, in this, my lords, I am
cure, you will easily acquit me in your thoughts.
When I look upon my Charge in general, as the
commons did, without searching into the integri-
ty of my own heart and actions, which are yet
unknown to most of them, I wonder not so
much at their proceeding*, the particulars not
being voted against mc unanimously ; but, had
they taken the means to have been better and
more truly informed of the particulars, or had
given me cause to have informed them, I assure
myself they had not troubled your lordships
with this Charge. I confers there hath been
that contestation in the house of commons con-
cerning my justification, that I cannot but ac-
knowledge much favour there from many, and
if the actions of some others of that house do
not make them conclude me of a worse dispo-
sition than I shall hereafter be found, there is
none but may say with me, ' I am at peace with
all.' I shall now, for the present, only apply
my i elf to the clearing mv reputation, and for
the future to those actions and endeavours
which may repossess me of that I have account-
ed one ot my greatest losses, their good opi-
nions. I would not speak nor profess this be-
fore your lordships, if reason and my own dis-
fssition did not warrant the performance of it.
or, first, who accused me r Common Fame.
Who gave me up to your lordships ? 'I he house
of commons. The one is too subtle a body,
if a body ; the other too great a one, for me to
contest with : I am confident, wheu my Cause

shall he tried, neither the one or the other, or
part of either, will be found to have any ground
to be my enemy. But as Fame is subtle, so it
is often, and especially in accusations, false :
therefore though the house of commons have
not willingly wronged me : vet I am confident
it will at length be found, that Common Fame
hath abused both them and me. I presume
the house of commons have proceeded against
me, out of an hearty and zealous affection, to
do their king and country service ; and, I hope,
out of Christian charity, to punish or amend
my faults, (if Fame could have proved them)
and not to ruin my reputation, or destroy my
fortune. I shall never call such proceedings
wrong, which, seeking to dure my errors, give
me opportunity to clear and publish my inno-
cency. For the state itself, I have a little to
say: it is but a Jit tie: I will not abuse your
lordships patience. I was born and bred in it.
1 owe it my life. I have been raised to honours
and fortunes in it, I freely confess, beyond my
merits. What I wanted in sufficiency and ex-
perience for the service of it, I have endea-
voured to supply by care and industry. Could
there be the least alienation hereatter of my
heart from the service of the state, for any
thing that hath past, I should be the ungrate*
fullest man living. Should but such a thought
stain my heart, I should be content it were let
blood. If my posterity should not inherit the
same fidelity, I should desire an inversion in the
course of nature, and be glad to see them
earthed before me. My Answer to the several
points of my Charge I shall crave leave to de-
liver briefly in writing and in form of law : but
as naked as truth loves to be-: and so t leave
myself and my Cause to your lordships justice.'*

Tue Duke of Buckingham's Answer to
the Articles of Impeachment.

Then his grace presented his Answer, and
gave the same to the lord keeper, und his lord-
ship to the clerk, which followeth in hac verba :

" The humble Answer and Plea of George
Duke of Buckingham, to the Declaration
and Impeachment made against him, before
your Lordships, by the Commons House of
Parliament * (See p. 1307.)

" The said duke of Buckinqham being ac-
cused, and sought to be impeached before your
lordships, of the many misdemeanors, mispri-
sions, ort'ence?, and crimes, wherewith he is
cfyarjrtd by the commons house of parliament,
and which are comprised in the Articles prefer-
red against hiin, and were aggravated by those
whose service was u»ed by that house in the de-
livery of them; doth find in himself an inex-
pressible pressure of deep and hearty sorrow,

* Rush worth says, that sir Nicholas Hid*
! was employed in drawing up tliis Answer, and
; that to this service he owed his being appointed
' Chief Justice of the King's -bench, when sir Kan-
• dolph Crew was removed for refusing to for-
. ward the Loan.

1423] STATE TRIALS, 2 Ch. I. J 626.— Impeachment of the D. of Buckingham, [1494

that so great and so worthy a body should hold
him suspected of tbobC things which are\>b-
jecied against him, whereas, had that honour-
able bouse first known the very truth of those
particulars, whereof they bad not there the
means to be rightly informed ; he is well as-
sured, in their own true judgments, they would
have forboro to have charged him therewith.
But the integrity of his own heart and con-
science, being the most able and most impaiv
tial witness, not accusing him of the least
thought of disloyalty to his sovereign or to his
country, doth raise his spirits ngain to make his
just defence before your lordslups ; of whose
wisdom, justice, and honour he is so well as-
sured, that he doth with confidence, and yet
with all humbleness, submit himself and his
cause to your examinations and judgments ; be-
fore whom he shall, with all sincerity and clear-
ness, unfold and lay open the secrets of his
own actions, and of his heart; and, in his An-
swer, shall not affirm the least substantial, and
as near as he can, the least circumstantial point,
which he doth not believe he shall clearly prove
before your lordships. The Charge consisteth
of 13 several Articles, whereunto the duke, sav-
ing to himself the usual bene6t of not being
prejudiced by any words, or want of form, in
bis Answer ; but that he may be admitted to
make further explanation and proof, as there
shall be occasion ; and saving to himself all
privileges and rights belonging to him as one of
the peers of this realm, doth make these several
and distinct Answers following, in the same
order they are laid down unto him.

" I. To the First Article, which concerneth
the Plurality of Offices which he holdeth, he
answereth thus: — That it is true that he holdeth
those several places and offices, which are enu-
merated in the preamble of his Charge, whereof
only three are worthy the name of offices, viz.
the Admiralty, the Warden ship of the Cinque-
Ports, and Mastership of the Horse; the others
are rather titulary and additions of honour: for
these offices he humbly and freely acknow-
ledged the bounty and goodness of his most
gracious master, who U with God ; who, when
he had cast an eye of favour upon him, and
had taken him iuto a more near place of ser-
vice about his royal person, was more willing
to multiply his graces and favours upon him
than the duke was forward to ask them; and,
for the most part, as many honourable persons,
and his now most excellent majesty abo\ e all
others can best testily, did prevent the very
desires of the duke in asking : and all these
particular places, he can and doth truly affirm,
his lute majesty did bestow of his own roval mo-
tion, except the YVnrdenthip of the Cinque-
Ports only ; and thereto also he gave his appro-
bation and encourage incut. And the duke de-
iiieili, that he obtained these places cither to
satisfy h:s exorbitant ambition, or his o%\ n pro-
fit or advantage, as is objected against him,
' and he hopeth he shall give got>d satisfaction to
the contrary in his particular Answers ensuing,
touching the manner of his obtaining the places

of the Admiralty, and the Wardeoship of the
Cinque-Ports ; whereunto he humbly desireth
to reier himself. —And for the Mastership of
the Horse to his majesty, he saith, It is a mere
domestic office of attendance upon the king's
person, whereby he rec?iveth some pront; yet
out as a convenieucy to render him more fit tor
his continual attendance ; and in that place,
the times compared, ne hath retrenched the
kiug's annual charge, to a considerable value,
as snail be made apparent. — And for the Num-
ber of Places he holdeth, he saith, That if the
commonwealth doth not suffer thereby, he
hopeth he may, without blame, receive and re-
tain that which the liberal and bountiful hand
of his majesty hath freely conferred upon him.
And it is not without many precedents, both in
antient and modern times, that one man, emi-
nent in the esteem of his sovereign, hath, at one
time, held as great and as mauy offices : but
when it shall be discerned, that he shall falsely
or corruptly execute those places, or any of
tbetn ; or that the public shall suffer thereby,
he is so thankful for what he hath freely receiv-
ed, tliat, whensoever his gracious master shall
require it, he, without disputing with his sove-
reign, will readily lay down at his royal feet,
not only his places and offices, bat his whole
fortune and his life, to do him service.

'• II. To the Second Article, his buying the
Admiral's Place, the said duke maketh this dear
and true Answer. — That it is true, that in Jan.
in the 16th year of his late majesty's reign, bis
late majesty did, by his letters patent, gram unto
the duke the office of Lord Admiral tor his life;
which grant, as he well knoweth it, was made
freely, and without any contract or bargain with
the late lord admiral, or any other, and upon
the voluntary surrender of that noble and well-
deserviug lord, so he is advised it will uppearto
be tree from any defect in law, by reason uf
the statute 5 Edw. 6, mentioned in the Article
of his Charge, or for any other cause whatso-
ever; for he saith ihc true manner of his ob-
taining this office, and of all the passage* there-
of, which he is ready to make nood by proof,
wus thus : that honourable lord, the late earl
of Nottingham, the lord admiral, being grown
much in years, and finding that he was not then
so able to perform that which appertained to
his place, as in former times he had done to his
great honour ; and fearing lest his majesty's
service and the commonwealth might sutler by
his defect, became an humble and e;irnest pe-
titioner to his late majesty to admit him to sur-
render his office. His late majesty was at the
first unwilling unto it, out of his royal affection
to his person, and true judgment of his worth,
but the earl reuewed his petitions, and in .*ome
of them nominated the duke to be his succes-
sor, without the duke's privity or forethought
of it. And, about that lime, a gentleman uf
good place about the navy, and of long expe-
rience, of himself came to the duke, and ear-
nestly moved him to undertake the place. The
duke apprehending the weight of the place, and
considering his young years and want of t*pe-

rience to manage so great a charge, gave no ear
onto it ; but excused it, not for form, but really
and ingenuously out of the apprehension of his
then unfitness for it. The gentleman not thus
satisfied, unknown to the duke, applied himself
to the late king, and moved his majesty therein,
and offered these reasons for it : that the duke
was the fittest man at that time, and as the
state of tlie navy then stood, for that place, for
he said it was then a time of peace : that the
best service that could be done lor the present,
was to repair the navy and ships royal, which
then were much in decay, and to retrench the
king's charge and to employ it effectually ; that
before there was like to be personal use of ser-
vice otherwise, the' duke, being young and
active, might gain experience, and make him-
self as fit as any other : and that, in the mean
time, none was so fit as himself, having the op-
portunity of his majesty's favour and means to
his person, to procure a constant assignment
and payment of money for the navy ; the want
whereof was die greatest cause of the former
defects. These reasons persuaded his late ma-
jesty, and, upon his majesty's own motion, pre-
vailed on the duke to take the charge upon
him : and thereupon the eail voluntarily, fr* ely,
willingly, und upon his own earnest and often
suir, surrendered the place; without any prece-
dent contract or promise whatsoever, which
might render the duke in the least degree sub-
ject to the danger of the law, which was not then
so much as once thought upon : and upon that
surrender, the grant was made to the duke :
but it is true, that his majesty out of his royal
bounty, for reenn pence of the long and faith-
ful service of the said earl, and for an honour-
able memory of his deserts to him and the
crown of England, did grant him a pension of
J ,000/. per ami. for his life; which, in all ages,
hath been the royal way of princes, wherewith
to reward antient und well-deserving servants
in their elder years; when, without their own
faults, they are Income less serviceable to the
state : and the duke also voluntarily and freely,
and a* an argument <>f his noble respect to-
wards so honourable a predecessor, who to his
death, he called father; and "hose estate, as
tie then understood, was fallm very Jow; did,
with hts late majesty's privity and approbation,
lend him 3.000/. in money ; which he hopeth
no person of worth and honour will esteem to
be an act worthy of blame in him. And when
tha duke hud thus obtained this place of great
trust, he, was so careful of his duty, that he
would not rely upon his own judgment or abi-
lity ; but of himself humbly besought his then
majesty to settle a commission of fit and able
persons for the affairs of his navy, by whose |
counsel and assistance he might manage that j
weighty business with the best advantage fw j
his majesty's service; which commission wast
granted, and yet continue! h; und without the
advice of those commissioners he hath never
done any tiling of moment ; and, by their ad-
vice and industry, he hath thus husbanded the
)ung*s money, and furthered the servkx, thai

YOU fir

the Earl of Bristol, and Lord Conway. [142G

where before the ordinary Charge of the Navy
was 54,000/. per ami. and yet the ships were
very much decayed, and their provisions neg-
lected, the charge was reduced to 30,000/.
per ami. ; and with that charge the ships all
repaired and made serviceable, and 2 new ships
built yearly ; and for the two last years, when
there were no new ships built, the ordinary
charge was reduced to 21,600/. per ann. And
now he dare boldly affirm, thai his majesty's
navy is in better state by much than ever it was
in any precedent time whatsoever."

" III. To the Third Article, his buying the
Wardenship of the Cinque-Ports, he maketh
this plain, ingenuous, any! true Answer: — That
in* Dec. in the 22nd year of his late majesty's
reign, he obtained the office of Lord Warden
of the Cinque- Forts, and Constable of the
Castle of Dover (being one entire office) upon
the surrender of the lord Zouch, then lord
warden. The manner of obtaining whereof,
was thus : the lord Zouch being grown in
vears, and with his almost continual lameness
being grown less fit for that place, he disco-
vered a willingness to leave it, and made seve-
ral offers thereof to the duke of Richmond,
and Kd. earl of Dorset, deceased; but he was
not willing to part with it, without recompence.
Notice wl.ereof coming to the duke, by an
offer made from the lord Zouch, he finding by
experience how much, and how many ways
both the king's service might, and many times
did suffer; a*id how many inconveniences did
arise to the king's subjects in their goods, ships,
and lives, by the intermixture of the jurisdic-
tions of the admiralty and wardenship of the
Cinque-Ports, and by the emulation, disaffec-
tion, and contention of their officers, as clearly
appear by these particulars, amongst many
others which may be instanced. 1. Whereas
the admiral-jurisdiction extends generally to
all the narrow seas ; the warden of the Cinque-
Ports hath and exercise; h admiral-jurisdiction
on' all the sea-coasts, from Show-Beacon in
Essex, to the Red Norc in Sussex ; and within
those limits there have been continual diffe-
rences between the lord admiral and the lord
warden, whether the lord warden's jurisdiction
extends into the main sea, or only as far as
the low-water-mark, and so much further into
the sea, as a man on horseback can reach
with a lance ; which occasioneth questions be-
tween those chief officers themselves. 2. '1 here
are many and continual differences in executing
of Warrants against offenders : the officers of
the one refusing to obey or assist the autho-
rity of the other; whereby the offenders pro-
tected or countenanced by either, easily escape.
3. Merchants and owners of goods questioned
in tlie admiralty, are often enforced to sue in
both courts, and often enforced, for their peace,
to compound with both officers. 4. The king's
service is much hindered ; for the most usual
ana oidmary rendezvous of the king's ships be*
ing at the Downs, and that heuig within the
jurisdiction of the lord warden ; tlie lord admi-
ral or captains of the king's ships have no power

4 V

1427 J ST ATE TRIALS, 2 Ch. I. \626.—Impcachmau tfthe Dukt

[14»

or war rati t to press men from the shore, if the
king's si lips be m distress. 5. When the king's
ships, or others, be in danger on the Goodwins,
and other places within view of the ports-men,
they, have refused to help with their boats, lest
the king's ships should command them on
board; whereby many ships linvc perished, nnd
much goods have been lost. 6. When war
rants come to pros a ship in the road for the
king's service, the officers take occasion to dis-
obey ti»e warrant?, and p'rejudicc the king's
service. For, it the warrant come from the lord-
warden, they witl j retend the ship to be out of
their jurisdiction; if the warrant come from the
lord admiral, they will.prettnd it to be within
the jurisdiction of the Cinqnv-poits; and so,
whilht. the officers dispute, the opportunity of
the service is lost. 7. When tl.e kind's snips
lie near the ports, and the men come on sh»re,
the officers refuse to assist the captains to re-
duce them to the ships without the lord war-
don's warrant. 0. If the king's ships, on the
sudden, have any need of pilots for the sands,
coasts of Flanders, or tl.e like, wherein the
ports-men are best c-xpeiicnccd, they will not
serve without the lord warden's or his lieute-
nant's warrant, who perhaps are not near the
place. 9. When for grat occasions for the
service ot' the state, the Ion! admiral and lord
warden imi»t both join their authority ; if the
officers for want of true understanding of their
several limits and jurisdict.ons, mistake their
warrant*, the service, which many times can
endure no delay, is lost, or not so effectually
performed. — For these, and many other rea-
sons of tl.e like kind, the duke not being led,
either out of ambition or hope of profit, as
hath been objected ; (for it could be no increase
of honour to him, having been honoured be-
fore with a gi eater place; nor of profit, for it
hath not yielded him any matter of profit at
all, nor is like to yield him above 500/. per
aim. at any time) but out of hi* desire to make
himself the more able to do the king and
kingdom service, and prevent all differences
and diiriVuitics which heretofore had, or here-
after micht hinder the si'iie, he did entertain
that motion: and doth confess, that not know-
ing, or so mnrh as thinking of the said act of
parliament hef-ire-nicntioued, he did airree to
give th:» said loid 1,0ooJ. in money, and 500/.
per aim. in respect of his surrender: he not be-
ing willing to leave his place without such con-
sideration-, nor th? (hike willing to have it with-
out hi* full *:itisf;irUon ; and the occasion why
the duke of Uuc!:> i:\ive ihut cmMdcraticn to
the lord /ouch, w;i>, because the du!:c of Rich-
mond in his life time had first apced to give the
same consideration for it ; and if he had livid,
he had had that phtCij upon the same terms :
nnd when the s tid duke ot "Richmond was dead,
his bite majesty directed tie duke of Bucking-
ham to enter upon that p!act , and, for the
renj-ons hctorc-iueuti(.ncd, to put both these
offices together; and to give tiic same conside-
ration to the said lord, which the duke of Rich-
mond should have given/ and his late majesty

said he woold repay the money. And how far
this act of his, m acquiring this office, accom-
panied with these circumstances, may be within
the danger of the law, the king being privy to
all the passages of it, and encouraging and di-
recting it, he humbly submitteth it to your
judgment; and he humbly leaves it to your
lordships judgments, in what third way an un-
dent servant to the crown, by age or infirmity
disabled to perform his service, can, in an ho-
nourable course, relinquish his place ; for if the
king himself gate the reward, it may be said it
is a charge to the crown; if the succeeding offi-
cer g ive the reeompence, it may thus be ob-
jected to be within the danger of the law; and
howsoever it be, yet he hopeth it shall not be
held in him a crime, when his intentions were
just and honourable, and for the furtherance of
the king's service ; neither is it without prece-
dent, that in f< inner times of great employment,
both these offict-s were put into one hand bj
several grants.

"IV. To -the Fourth Article, whereby tie
'not Guarding of the narrow Seas in these two
lost years by the duke, according to the trust
and duty of an admiral, is laid to his charge;
whereof the consequence, supposed to hate
been merely through his default, are, the igno-
minious infesting of the coasts with pirates and
enemies, the endangering of the dominion of
these sens, the extreme loss of the merchants,
and the decay of the trade and strength of tke
kingdom: the duke maketh this Answer;-*
That he doubteth not but he shall make it ap-
pear, to the good satisfaction of your loruships,
i hat albeit there hath happened much loss to
the king's subjects within die said time of tiro
years, by pirates and enemies ; yet that hath
not happened by the neglect ot the duke, or
want of care and diligence in his place ; for
whereas in former times, the ordinary guard
allowed tor the narrow seas hath been but 4
ships, the duke hath, since hostility began, ami
btfire, procured their number to be much
increased ; for, since June 1624, there hath
never been fewer than 5 of the king's ships,
and ordinarily 6, besides pinnaces, merchants
ships and drum biers : and since open hostility
8 of the king's ships, besides merchants of
great number, and pinnaces, and drumblers;
and all these well furnished and manned, suffi-
ciently instructed and authorized for tne sw-
vice, lie saith, he hath from time to time,
upon ail occasions, acquainted his majesty and
the council board therewith, and craved tbeif
advice, and used the a^istance of the commis-
sioners tor the navy in this service: and forth*
ftunkirkers, who have of late infested these
coasts more than in former years, lie saith,
1 here uas that providence usrd for the repres-
sion of them, that hi* majesty's ships and the
Hollanders joining together, the port of Don-
hiik was blocked up, and so should have cod-
tinued. had not a sudden storm dispersed tktax
which l.ein«r the immediate hand ofOod, coaH
not by any policy of man be prevented; at
which time, they took the opportanity to rove

U39] STATE TRIALS, 2 Ch. I. 1620.—//* Earl if Bristol, and Lord Conway. [1430

abroad, but it hath been so far from endanger-
ing the dominion of the narrow seas thereby, as
it in suggested, that his majesty's ships or men
of war, were never yet mastered, nor encoun-
tered h? them, nor will they endure the sit^ht of
any of our ship* ; and when the duke lumsclf
was in person, the Dunkirkers ruu into their
harbours. But there is a necessity that, ac-
cording; to the fortune of warn, interchangeable
losses will happen; yet, hitherto, notwithstand-
ing their more than wonted insolcucv, the loss
on the enemy's part hath been us much, if not
more, than what hath happened to us; and
that loss that hath full en, hath chiefly come by
this means, that the Dunkirkers ships being of
late years exercised in continual hostility with
the Hollanders, are built of a mold as i\t for
♦light us for fight; and so they pilfer u|m>ii our
coasts, and creep to the shore, and escape from
the king's ships: but to prevent that inconve-
nience for the time to come, there is already
order taken for the building some ships, which
shall be of the like mold, light and quick of sail,
to meet with the nd verse party in their own
way. And for the pirates of Sullie, and those
parts, he saith, it is hut very lately that they
found the way unto our coasts, where, by stir-
prize, they might ensily do hurt; but there
iiath been that provision taken by his majesty,
not witlnut the care of the duke, 'both by force
and treaty, to repress them for the time to come,
as will give good satisfaction. All which he is
assured will clearly appear upon proof."

" V. To the Fifth Article the dnke makcrh
this Answer; That al>out September last, this
ship called the St. Peter, amongst divers others,
was seized on as a lawful prize by his majesty's
ships, and brought into Plymouth, as ships
laden by tlie subjects of tlic king of Spain : in
the end of October or beginning of November,
they were all brought to the Tower of London,
all of them were there unladen but the Peter,
and the bulk of her goods was not stirred, be-
cause i hey were challenged by the subjects of
the Frenii king ; and there did not then ap-
pear so much proof against her, and the goods
in her, as against the rest. About the middle j
of November allegations were generally put in
against them nil in the Admiralty-court, to
justify the seizure; and nil the nretendants
were called in : upon the*c proceedings, divers
of the ships and goods were condemned, and
divers were released in a legal course ; and
others of them were in suspence till full proof
made. The 28th of Dec. complaint was made
on the behalf of some Frenchmen at the council
board, concerning this ship nnd other*, when
the king by advice of his council, his innj. be-
ing present in person, did order, That the ship
of Newhaven, called tlie Peter, and (he goods
in her, and all such other goods of the other

as is supposed by the Clnrge, but was thus
qualified, so as they were not fraudulently co-
loured ; and it wits referred to a judicial pio-
ceediug. According to this just and honour-
able direction, the king's advocate proceeded
upon the general allegations formerly put in
tiie '-26th of Jan. after there was a sentence j.; the
udmuulty, that tlie Peter, should !>•- discharged;
and the king's advocate, not having then any
knowledge of further proof, consented to it: but
this was not a definitive tuiience, but a sentence
interlocutory, as it i* termed in that court.
Within few days afier, this ship prepared her-
self to be gone, and was falling down the river:
tlien cnine new intelligence to tiie lord admiral
by tlie lieutenant of the Tower, that ail thu*e
ships were laden by the subjects of the ki;v: of
Spain ; that tlie Atnirantasco wufted them be-
yond the North-Cape ; that they were but co-
loured by Frenchmen ; tb:it there were wit;.cs\e»
ready to make good this new allegation ; iu i-
thjcr was it improbable to he so, lor part of tiie
goods in that ship have been confessed to be
lawful prize. This ship being now fallen down
the river, und being a ship of Lhe most value
of all tlie rest, the duke acquainted the king
therewith ; and by his conuiuiudincnt, made
stay of the ship, lest otherwise it should be too
late ; which the duke, in the duty of his place
of admiral, as he believetb, ought to have
done, without such command : and if he had
not done so, he might worthily hate heeti

prizes, as should be found to appertain to his
majesty's own subjects, or to the subjects of his
good brother tlie French king, or the States of
the United Provinces, or any other princes or
states in friendship or alliance with his majesty,
Bliould be delivered : but this was not absolute,

blamed for his negligence ; and then instantly
he sent for the judt»e of the admiralty, to l>e
informed from him, how far the s^utt-ncc al-
ready passed, did bind, :nul whether it might
stand wi'ib justice to make sUy of her again,
she being once discharged in such manner as
before. The judge answered, ns lie was ad-
vised, That it might justly be done, upon bet-
ter proofs appearing ; yet discreetly, in a mat-
ter of that moment, he took time to give a re-
solute answer, that in die interim he might
review the acts which had passed. Tlie next
day, or very shortly after, the judge came rgaiu
to the duke, and, upon advice, answered rt?o-
hiteiy, That the ship and goods inight justly
be stayed, if tlie proofs fell out to be iiii&we.'-
ahle to die informations given ; when of, Je
said, he could not judne, till lie had seei: tlie
depositions. And according to this resolution
of tlie judge, did five other learned advocates,
besides the kings advocate, concur in opinion,
being intreatcd by the duke to advise thcicof ;
so cautious was the duke not to do any unjust
act. Then lie acquaint* d the king again there-
with, and his majesty commanded him to re-
seize this ship, and to proceed judicially to the
proofs ; and the duke often required the king's
advocate to hasten tlie examination of the wit-
nesses ; and many witnesses were produced
and examined in pursuance of this new inform-
ation. But the French merchants, impuluut
of any delay, complained ugain to the council-
board, where it was ordered, not barclr, That
the ships and goods »1iould be presently deli-
vered, but should be delivered upon iwciiriiy ;

1431] STATE TRIALS, 2 Cn. 1.1(526.— Impcachnent of the Duke qf Buckingham, [143*

and, upon security, she had been then deliver-
ed, if it had been given ; and security was once
ottered, but afterwards retracted : and when j
all the witnesses produced were examined, and
publUhed, the king's advocate having duly
considered of ihein, forthwith acquainted the
duke, that the proofs came too short for die
Peter ; and thereupon the duke instantly gave
order for her filial discharge, nnd she was dis-
charged by order of the court accordingly. —
By which true narration of the fact, and all the
proceeding*, the duke hopeth it will sufficiently
appear, that he hath not dune any thing ht re-
in, on his part, which was not justifiable, and
grounded upon deliberate and well-advised
counsels and warrant. But tor the doing of
thio to his own lucre atid advantage, he utterly
lien let h it; for he saith, that there was nothing
removed out of the ship, hot some monies,
and some small boxes of stones of very mean
value, and other small portable things lying, <
above the deck, easily to be embezzled : and
whatsoever was ' taken out of the ship, was"
first publicly shewed to his majesty himself,
and thence committed to the custody of Ga-
briel Marsh, in the Article mentioned, by in-
ventory, then and still marshal of the Admi-
ralty, by him to be safely kept; whereof the
money was employed for the king's immediate
service, and by his direction, and the rest was
left in safe-keeping ; and are all since deliver-
ed and reimbursed to the owners, or pretended
owners thereof; and not a penny profit there-
of, or thereby, hath come to the duke himself,
us shall be made good by proof : and whereas
the suggestion hath been made, That this ac-
cident was the cause of the embargo of the
ships and goods of our merchants trading in
Trance, he saith, That it is utterly mistaken ;
for divers of their goods were embargoed before
this happened ; and if, in truth, the French
had therein received that loss, as either they
pretend, or is pretended from them ; yet the
embargoing of the goods of the English upon
that occasion, was utterly illegal and. unwar-
rantable ; for by the mutual articles between
the two kings, they ought not to have righted
themselves before legal complaint, and a de-
nial on our part, and then, bv way of reprisal,
and not by embargo. So that the duke doth
humbly leave it to the consideration of your
lordships, whether the harm which hath hap-
pened to our merchants, hath not been more
occasioned by the unseasonable justifying of j
the actions of the French, which animated
them to increase their injuries, than by an act,
either of the duke, or any other.

'• VI. To the Sixth Article, which consisteth
of two main points, the one of the extorting of
10,000/ unjustly, and without right, from the J
Kast-India Company ; the other, admitting the
duke had a right as lord admiral, the compassing
it by undue ways, and abusing the parliament,
to work his private ends ; the duke giveth this
Answer, wherein a plain narration of the fact,
he hopetli, will clear the matters objected ; and
jo thisjie shall lay down no more, than will fully

appear upon proof:—- About the end of Jtfi-
chaelmas term, 1693, the duke had information
given him, by a principal member of their own
company, that the company had made a great
advantage to themselves in the seas of East-
India, and other parts of Asia and Africa, by
rich prizes gotten there forcibly rroin the Por-
tuguese, and others ; and a large part thereof
was due to his majesty and to the duke as ad-
miral, by the law ; fur which, neither o( them
had any satisfaction. Whereupon direction*
were given for a legal prosecution in the court
of admiralty, and to proceed in such matters as
should be held fittest by the advice of counsel
In the months of Dec. and Jan. in that year,
divers witnesses weie examined iii the admi-
ralty, according to the ordinary course of that
court, to instruct aud furnish informative pro-
cesses in this behalf. After the 10th of March,
1623, an action was commenced in the court,
in the joint names of hi* majesty and the adiai-
ral, grounded upou the former proceeding ; this
was prosecuted by the king's advocate, and the
demand, at first, was 15,000/. The action be-
ing thus framed in both their names, by advice
of counsel, because it was doubted in the judg-
ment of the counsel, whether it did more pro-
perly belong to the one, or the other, or to
both ; and such form of entering that action
being most usual in that court, on the 28th of
April 1624, the judicial agreement and sen-
tence passed thereupon in the admiralty court,
wherein the company's consent, and their own
offer, plainly appeareth ; so that for the second
part, of the right, it were very hard to conclude
thut the duke had no ri-ht, contrary to the
company's own consent, and the sentence of
the court, grounded on their agreement ; unless
it shall fully appear, that the company was by
strong hand enforced thereto, and so the mo-
ney extorted. Therefore to clear that scruple,
that, as the matter of the suit was just, or at
least so probable as the company willingly de-
sired it tor their peace, so the manner was just
and honourable ; your lordthips are humbly
in treated to observe these few true circum-
stances : the suit in the admiralty began divers
mom lis before the first mention of it in parlia-
ment ; and some months before the beginning
of it in that parliament, it was prosecuted in a
legal course, and upon such grounds as will yet
be maintained to be just. The composition
made by the company, was not moved by the
duke; but his late majesty on the behalf of
himself, and of the duke, treated with divers
members of the company about it, and toe
duke himself treated not at all with them. The
company, without any compulsion, at all, agreed
to the composition , not titat they were willing
to give so much, if they might have escaped fur
nothing, but that they were willing to give so
much, rather than to hazard the success of the
suit : and upon this composition, so concluded
by hi* majesty, the company desired and ob-
tained a pardon for all that was objected against
them. The motion in parliament about the
stay of the company's ships then ready prf>

1433] STATE TRIALS, 2 Ch. I. lGQ6.—the Earl of Bristol, and Lord Conway. [1434

pared and furnished, was not out of any res-
pect, to draw tliem the ratlter to the compo-
sition ; but really out of an apprehension, that
there might be ueed of their strength for the
defence of the realm at home ; and, if so, then
all private respects must give way to the public
interest. The*e ships, upon the importunity of
the merchants, and reasons given by them,
were s-uffered, nevertheless, to fall down to
Tilbury, by his late majesty's directions ; to
speed their voyage the better, whilst they might
be accommodated for thit voyage, without pre-
judice to the public safety ; and they were
discharged when there was an accommodation
propounded and allowed, which was, that they
should forthwith prepare other ships for the
borne service, whilst those went over with their
voyage: which they accordingly did. That
the motion made in the Commons' house, was
without the duke's knowledge or privity. That
when there was a rumour that toe duke had
drawn on the composition by staying of the
ships which were then gone, the duke was. so
much offended thereat, that he would have had
the former composition to have broken off, and
have proceeded in u legal course ; and he sent
to the company for that purpose; but the
company gave him satisfaction, that they had
raised no ouch rumour, nor would, nor could
avow any such thing, and intreated him to rest
satisfied with such public acts to the contrary.
That after this, their ships being gone, and,
being careful of their future security, they
solicited the dispatch of the composition ; con-
sulted with counsel about the instruments which
passed about it, and wei e at die charge thereof;
and the money was paid long after the sen-
tence ; aud the seutence given after the ships
were gone ; and no security given at all for the
money, but thv sentence; and when this money
was paid to the duke, the whole sum (but 300*.
thereof only) was borrowed by the king, and
employed by his own officers, for the service
of the navy. If these things do, upon proof,
appear to your lordships, as he is assured they
will, he humbly suhmitteth it to your judg-
ments, how far verbal affirmations or infor-
mations extrajudicial, shall move your judg-
ments, when judicial acts, and those tilings
which were acted and executed, prove the con-
trary."

" VII. To the Seventh Article, which is so
mixed with actions of great princes, as that he
dareth not in his duty publish every passage
thereof, he cannot for the present make so
particular an Answer as lie may, hath, and
will do to the re>t of his Charge. But he giveth
this general Answer, the truth whereof he hum-
bly prayeth may rather appear to your lord-
ships by the proofs, than by any discourse of
his ; which, in reason of state, will haply be
conceived fit to be more privately handled.* —

* Since the duke's Answer delivered into
the house, he hath himself openly declared to
their lordships, that for the better clearing of
his honour and fidelity to the state, in that part

That these ships were lent to the French king
at first, without the duke's privity : that when
he knew it, he did that which belonged to an
admiral of England, and a true Englishman :
and he doth deny that, by menace or compul-
sion, or any other indirect or undue practice
or means, he, by himself, or by any others, did
deliver those ships, or any of tbtm, into the
hands of the French, as is objected against
him. That the error which did happen, by
what direction soever it were, was not iu the
inteution any ways injurious or dishonourable,
or dangerous to this state, or prejudicial to- any
private man, interested in any of those ships ;
nor could have given any *uch offence at all,
if those promises had been observed by others,
which were professed and really performed by
his majesty and his subjects ou their parts."

" VIII. To the Eighth Article, wherein he
is taxed to have practised for the employment
of the ships against Rochel, he auswertth ; —
That he was »o far from practising or consent-
ing that tl»e said ships should so be employed,
that he shall make it clearly appear, that when
it was discovered that they would be employed
against those of the religion, the protestation of
the French king being otherwise, and their pre-
tence being that there was a peace concluded
with those of ttuj religion, and that the 1 rench
king wotJd use those ships against Genoa,
which had been an action of no ill consequence
to the affairs of Christ end am, the dufce ant, by
all fit and honourable means, endeavour to
divert that course of their employment against
Rochel, and he doth truly and boldly afhrm,
that his endeavours, uuder the royal care of
his most excellent majesty, have been a great
part of the means to preserve the town of Ro-
chel ; as the proofs, when they shall be pro-
duced, will make appear. And when his ma-
jesty did find, that, beyond his intention, and
contrary to the faithful promises of the French,
I hey were so misemployed, he found himself
bound in honour to intercede with the most
christian king, his good brother, for the peace
of that town, and of the religion, lest his ma-
jesty's honour might otherwise suffer; which
intercession his majesty did so sedulously, and
so successfully pursue, that the town aud the
religion there do, and will, acknowledge the
fruits thereof. And whereas it is further .ob-
jected against him, That when in so unfaithful
a manner he had delivered those ships into the
power of a foreign state, to the danger of the

of his Charge which is objected against him by
this Seventh Article, he hath been an earnest
and humble suitor to his majesty, to give him
leave in his proofs, to unfold die whole truth
and secret o* that great action ; and hath ob-
tained his majesty's gracious leave therein :
and accordingly doth intend to make such open
and dear proof thereof, that he; nothing douht-
eth, but the same, when it shall appear, will
not only clear him from blume, but be a testi-
mony of his care and faithfulness in serving the
state.

1435} STATE TRIALS, 2 Ch. I. \626.—Impead^miqf the Duke <^'Bm^Mgkam, [lift

religion, and scandal and dishonour of our na-
tion, which he utterly denieth to be so, that to
mask his ill intentious, in -a cunning and cau-
teious manner, he abased the parliament at
Oxford, in affirming before the committee of
both bouses, That the said ships were not, nor
should be so used or employed, he saith, under
the favour of those who so understood his words
That he did not then use those words, which
are expressed in - the Choree to have been
spoken by him ; but there being then a jealousy
of the mis-employing of those ships, the dake
having no knowledge thereof, and knowing well
what the promises of die French king were, but
was not then seasonable to be published, be
hoping they -would not have varied from what
was promised, did say, that the event would
show that it was no undertaking for them ; bat
a declaration of that in general terms which
should really have been performed, and which
his majesty had just cause to expect from
' them.

« IX. To the Ninth Article, That the duke
did compel the lord Robartes to buy his Title
of Honour ;— He utterly denieth it ; and he is
very confident, the lord Robartes himself will
not affirm it, or any thing tending that way ;
neither can he, nor any man else, truly say so.
But the said duke is able to prove, that the
lord Robartes was willing before to have given
a much greater sum, but could not then obtain
it; and he did now obtain it by solicitation, of
his own agents.

"X. To the Tenth Article, for the selling
of Places of Judicature by the duke, which are
specially instanced in the Charge, he answer-
eth ; — That lie received not, nor had a penny
of either those sums to his own use ; but the
truth is, the lord Mandeville was made lord
treasurer -by his late majesty, without contract-
ing for any thing for it ; and after that he had
the office conferred upon him, his late majesty
moved him to lend him 90,000/. upon promise
of repayment at the end of a year ; the lord
Mandeville yielded it, so as he mi<;ht have the
duke's word that it should be repaid unto him
accordingly. The duke gave his word for it ;
the lord Mandeville relied upon it ; and deli-
vered the said sum to the hands of Mr. Porter,
then attending upon the duke, by the late
king's appointment, to be disposed as his ma-
jesty should direct : and according to the king's
direction, that very money was paid out to
others, and the duke neither had, nor disposed
of si penny thereof to his own use, as is sug-
gested against him. And afterwards, when the
lord Mandeville left that place, and his money
was not repaid unto him, he urged the duke
upon his promise ; whereupon the duke being
jealous of his honour, and to keep his word,
not having money to pay him, he assured lands
of his own to the lord Mandeville for his secu-
rity: but when the duke was in Spain, the lord
Mandeville obtained a promise from his late
majesty of some lands in free farm, to such a
value, as he accepted of the same in satisfac-
tion of the said money, which were afterwards

passed unto him ; and, at the duke's return, the
lord Mandeville delivered back unto him the
security of the duke's lands, which had beta
given unto him as aforesaid. And for the 6,000/.
supposed to have been received by the dake,
for procuring to the earl of Middlesex the mas-
tership of ttte wards, he utterly denieth it ; bat
atferwards tie heard that the eari of Middles*!
did disburse 6,000/. about that time, and his
late majesty bestowed the some upon sir
Henry Mikhxtay, bis servant, wkhoat the duke'i
privity ; and he had it and enjoyed k, and no
penny thereof came to the said duke, or to bis
use.

" XI. To the Eleventh Article the Me
answereth; That it is true, that his 4ate majesty
out of his royal favour unto him, having hoaoar-
ed the duke himself with many titles and dig-
nities of his bounty; and, as a greater argument
of his princely grace, did also think fit to ho-
nour those, who were in equal degree of blood
with him, and also to ennoble their mother,
who was die stock that bare them. The tide
of countess of Bucks, bestowed upon his mother,
was not without precedent ; and she hath
nothing from the crown hut a title of honour
which dieth with her. The titles bestowed on
the viscount Purbeck, tbe duke** elder brother,
were conferred upon him, when he was a ser-
vant of the bed-chamber to his now majesty
then prince, by his bighness's means : the eari
of Anglesey was of his late majesty's- bed-
chamber; and the honours and lands conferred
on him were done when the duke was in Spain.
The earl of Denbigh hathr the honours mea-
tioned in the Charge ; but he hath not a foot
of land which came from the crown, or of the
king's grant. But if it were true that tbe duke
had procured honours for those who are so
near and dear unto him, the law of nature, and
the king's royal favour, he hopeth, will plead
for his excuse; and he rather believeth he were
worthy to be condemned in tlie opinion of tH
generous minds, if, being in such favour wirii
his master, he had minded only his own ad-
vancement, and had neglected those who were
nearest unto him.

" XII. To the Twelfth Article his Answer
is, — That he doth humbly, and with all thank-
fulness, acknowledge the bountiful hand of his
late majesty unto him ; for which he owethso
much to the memory of that deceased king, liis
most excellent majesty that now i?, and their
posterity, that he shall willingly render back
whatsoever he hath received, together with his
life, to do them service: but for the immense
sums and values which are sucjrested to have
been given unto him, he saith, There are very
great mistaking in the calculations, which are
in the schedules in this article mentioned ; un-
to which the duke will apply particular answers
in another schedule, which ihall express the
truth of every particular, as near as he can col-
lect the same, to which he rcferreth himself:
whereby it shall appear, what a great dispro-
portion there is between conjectures and cer-
tainties : and those gifts which he hath item-

1437] STATE TRIALS, 2 Cm. I. I620<~4he Earl <j Bristol, and Lord Conway. [143S

ed, though he confesseth ibat they exceed his
merit, yet they exceed not precedents of former
times. But whatsoever it is he hath, or hath
had, he utterly denieth that he obtained the
same, or any part thereof, by arty undue soli-
citation ut practise, or did unduly obtain any
release of any sums of money he received;
but he having, at seternl times, and upon feve-
ral occasions, dispohed of divers sums of the
moneys of his lute majesty and of his majesty
thai now is, by their private directions, he hath
releases thereof for his discharge; which was
honourable and gracious in their majesties, "bo
granted the same tor their servant's indemnity ;
aad he liopeth, was not unfit for him to accept
of, lc*t, in future time*, he fir his inighl be
charged therewith, when he could not be able
to give so clear an account thereof, as lie hop-
cth he shull now well he able to do.

" XIII. To the Thirteenth Aiticle of the
Charge, which is set forth in such an expression
of words, as might argue au extraordinary guil-
tiness in the duke ; who by such infinite bonds
of duty and tliankfulness, wag obliged to be
tender of the life and health of his most dread '
and dear sovereign and master, he maketii this
clear and true answer, — That he did neither
apply nor procure the plnister or posset-drink,
in the Charge termed to be a potion, onto -his
late majesty, nor was present when the same
was first taken or applied : but the truth is this;
tbat-his majesty being sick of an ague, took
notice of the duke's recovery of an ngae not
long before, and asked hnn how lie had recover-
ed, and what he found did him most good ?
The duke gave him a particular answer thereto,
and that one, who was the earl of Warwick's
physician, had ministered a plaistc r and posset-
drink to him ; and the chiet thing that did him
good was a vomit ; which lie wislied the king
had taken in the bejiiining of his sickness.
The king was very desirous to have that plais-
ter and posset-dnnk sent for ; but the dnke
delayed it: whereupon the king impatiently
asked, Whether it was sent for or not? And
finding by the duke's speeches he had not sent
for it; his late majesty sent J. Dtiker the duke's
servant, and, with his own mouth, commanded
him to go for it: whereupon the dulse 1>e*ought
his majesty not to make use of it hut by the
ad\icc of his own physicians, nor until it should
be tried by Jumps Palmer, of his hcd-chanilicr,
who was then sick of an ague* and upon two
children in the town; which the king ? a id he
would do. in this resolution the duke left his
majesty and went to London; and in the mean
time, in his absence, the plainer and posset-
drink was brought und applied by his late
majesty's own command. At the duke's re-
turn his majesty was iu taking the posset-drink,'
and the king then commanded the duke to give
it him ; which lie did in presence of some of
the king's physician*, they then no ways seem-
ing to dislike it, the same drink being first
tasted of by some of them, and divers others in
the king's bed-chamber: ami he thinks this
was the second time the kins took it. After-

wards, when the king grew some*Imt worse
than before, the duke heard a rumour as if his
physic had done the king hurt, and that the
duke had ministered that physic to him without
udvice. The duke acquainted the kin<; there-
with ; to whom the king, with much iiiscon-
tcnt, answered thus, ( 'J hey are woi se than
devils that say it.' So far from the truth it
was; which now not will funding as it seemeth,
is taken up again by some, und with much con-
fidence aifirmed. And here the duke humbly
prayeth all your lordships, not only to consider
the truth of this Answer, but also to com-
miserate the sod thought which this* Article had
revived in him.

" This being the plain, clear, and evident
truth of all those things which are contained
and particularly expressed in his Charge, the
rest being general and requiring no Answer i
end lie being well assured that he bath herein
affirmed nothing which he shall not make. good
by proof, iu such way as your lordships shall di-
rect, doth humbly refer it to the judgment of
your lordships, how full of danger and prejudice
it is to give too ready an ear, and too easy
a l»elief unto reports or testimony without oath,
which are not of weight enough to condemn
any. He humbly acknowledged how easy it
was for him in his younger years, and unexpe-
rienced, to fall into thousands of errors iu those
ten years wherein he had the honour to serve
so great and open-hearted a sovereign and mas-
ter; but the fear of Almighty God, his sincerity
in the true religion established in the church
of England, (though accoojpaaied with many
weaknesses and imperfections, which he is
not ashamed humbly and heartily to confess)
his aw fulness, not willing to oftend so good and
gracious a master, and bis love and duly to his
-country, have restrained and preserved iiim,
he hopeth, from running into heinous and high
misdemeanours and crimes : but whatsoever,
upon examination and mature deliberation,
they shall appear to be ; le«?t in any thing,
unwittingly, within the compass of so many
yet<rs, he ?hall have offended, he humbly prny-
eth your lordvhips uot only in those, but aa
to all the said misdemeanors, misprisions, of-
fences, and crimes wherewith he stnndeth
charced before jour Ion 1 ships, to allow him the
bcuHit of the free and general Pardou granted
by his hue majesty in parliament in the '2 It*
year of his rei-n, out ol which he is not except-
ed ; r.nd of the gracious Pardon of his now ma-
jesty granted to the snid duke, and vouchsafed
in like manner to all his subjects at the time el'
his most happy inauguration and coronation -.
which said Pardou, under the Great Seal -of
Kugland, granted to the snid dnke, beareth date
the 10th day of I'Vhninry now lust pant, and is
here shewn fouh unto your lords- hips, on which
he doth most humbly rely ;. ami yet he hopeth
.your lordships, in your justice and honour, upon
which with coniidenre he puts himself, wid
acquit hint of ami from those mi*deiiie*no:s,
niVences, n 11*1*1 si on s, and crimes wherewith he
bath been charged; and he hopeth

1439] STATE TRIALS, 2 Ch. I. 1626.— Impeachment qf the Duke qf Buckingham, [1440

daily pray, that for the future he shall, by God's
grace, so watch over his notions, both public
and private, that he shall give no just offence
to any." [Here follows the Answer of the
Duke to these Grants and Gifts contained in
the Schedule lefcrred to in the 12th Article.]

After the reading of the above Answer, the
Duke made a short speech, de-iring their lord-
ships to expedite the examination of his cause,
and then withdrew himself and departed.

Further Proceedings in the Earl of Bristol's

Trial.

June 8, p. m. The earl of Bristol, being be-
fore their lordships at the bar, desired ' leave to
move two poiuts: the one, touching the Charge
of Treason agam»t himself; the other, touching
the Articles exhibited by him, (as an ambassa-
dor) against the duke of Buckingham, for his un-
faithfulness to the king and state. — As touching
the first, he made a htrge discourse, shewing the
manner of his restraint, as in hi* former speech
of May 6th, and that he was not charged with
Treason uutil he first exhibited his Petition to
the house, therein he accused the duke ot Buck-
ingham ; and that thereupon he was immedi-
ately sent for up as a delinquent, contrary to all
former proceedings that he ever observed ; and
it being contrary to the order of this hou«e, to
be restrained of his liberty, unless it be for trea-
son or the like, he is therefore charged with
treason ; and hereupon he besought their lord-
ships to consider how prejudicial this precedent
might prove to all their liberties ; and that he
might nave a speedy trial by parliament, for
that he feared no man would be of his counsel
if the parliament were once ended ; and that
it might be determined whether his case be trea-
son or not. — As touching the duke of Bucking-
ham, he shewed that i»is accusation of him is
no recrimination, for he originally intended it
two or three years since ; neither hath the duke
any Charge depending against him. Then he
recited the particulars of Mr. Attorney's Charge
against him, and that, whereas he is charged
with the prince's journey into Spain, with seek-
ing to convert the prince to popery, and the
loss of the Palatinate ; he doth charge the duke
with plotting with (.iondomar, to bring the
prince into Spain and to converc him to popery :
and that the duke is in more fault than any
other for the loss of the Palatinate. — And that
whilst he was in Spain, he wrote to the late
king of the duke's unfaithfulness; so tlmt it
cannot now be said to he a recrimination. —
That yet he is restrained and used as n traitor;
and contrariwise, the duke of Buckingham, ac-
cused of treason by him, (a public minister of
state) hath his liberty. — Then he made two re-
quests unto their lordships ; the one, that there
might be an equality between him and the duke
herein ; the other, that Mr. Attorney might
proceed against the duke upon his accusation ;
and he would not only prove the duke's un-
faithfulness to the late king and his majesty;
but that the Narration which the duke made to
both houses in the late parliament it very false."

The Earl, having concluded bis Speech, de-
livered a Petition, which was read, in foe
verba:

" To the right honourable the lords of the higher
house of parliament. '1 lie humble Petition
of John Earl of Bristol.

" 1. Humbly beseeching your lordships that
you will be pleased to declare, whether the
matter of the Charge against him be Treason
or no; and that if your lordships shall adjudge
it not to be Treason, that the words ' Traitor'
and ' traiterously' may be struck out of the
Charge; and some such course taken, as to
your lordships shall seem meet tor the >peedy
prosecution and bringing of the cau-e to hear-
uig. 2. That his own and sir Walter Aston's
dispatches might be brought into the court,
(being his chiefest evidence) to be u*ed tor bis
defence. 3. That if Mr. Attorney, by hi> re-
ply, shall give the earl occasion to declare, for
his justification, such matters of secrecy and
mysteries of state as* are not proper to be di-
vulged ; your lordship6 will then ix pleased to
move his majesty to siguify his pleasure^ to
whom and in what manner it shall be declared.
4. And that the earl may have leave to come
with Mr. Maxwell to the house, er wait upon
the committees when he shall find it nerdM
for the prosecution of his cause, attending y»ur
lordships leisure. " Bristol."

The Petition being read, the Earl was with-
drawn, and the house being put into a com-
mittee, it was read again in parts, and fully de-
bated : the house being resumed, it was resd
again ; and these four Answers were made onto
the four several parts of the said Petition, sad
ordered as followeth, viz. — " 1. The house to
sit to-morrow at eight, and surh wimessesto
he sworn as Mr. Attorney or the carl of Bristol
shall procure ; and then the committee to pro-
ceed to bike the examinations; and the An-
swer to the rest of this part of the Petition to
be referred to further consideration, after a fall
examination taken by the committee, aod re-
ported to the house. 2. All such dispatches ss
Mr. Attorney shall make use of against the
earl, to be used by the said eurl for his defence;
and the house to be suitors to the king for ant
other dispatches, to be brought hither tor the
said earl's defence, as he shall partkaiUrlT
name. 3. When any such occasion shall be
offered, the house will then consider what coarse
to take herein. 4. Tins is to be granted."

These being thus agreed and ordered by the
house, and their lordships having also agrefdto
give the earl of Bristol a reason why ibe tir>t
part of his said Petition is not fully answered;
tl>e earl of Bristol was brought again before
their lordship*, and the lord keeper signified
the said orders unto liim : and, having read the
first, told him, That the house had not uillv
granted the first part of this Petition, tor two
reasons, both in favour to his lordhhip: the
1st, that they are loth to proceed to deebft
their opinions or judgments! upon the bars
Charge of Mr. Attorney, before the true ctfff

1441] STATE TRIALS, 2Ch.1. 1026.—//* Earl qf Bristol, and Lord Conway . [1443

appears upon the proofs. The 2nd, for that if
they should declare his cause to be Treason,
then his testimony against the duke of Buck-
ingham would be weakened; and the lord
keeper having read the 9ml, 3rd mid 4th orders
al*o, the earl of Bristol gave their lordships
humble thanks, mid so was withdrawn.

The Lord Conway's Answer to the Earl of
Bri«,tol's Clnrgc against him.

June 13. The lord Conway put their lord-
ships in iniud of several Articles delivered to
them by the earl of Bristol against himself, the
l»t of May last ; and besought the loids tint
he mi-:ht then give in his Answer to the vnme;
* hich being granted, it was read in hoc verbu :

** The Answlr of the Lord Conway to the
Eleven Article?, delivered against him
into the Upper House of Parliament by
the Earl of Bristol, the 1st d'nv of Mav.
(See p. lQOO.y

" I. To the First Article lie saith ;— He
doth acknowledge to owe a meat deal of re-
spect, love, antf service, to die duke of Buck-
ingham ; and doth well remember that a wor-
thy gentleman did invite him to endeavour the
reconciliation of the eurl of Bristol with the
fluke ; to which also he made answer, Thai he
Lad both affection and readiuess to do nil the
good offices in his power, and that for the ge-
neral duty which every man oweth to the works
of reconciliation, and for other special motives,
as being born in one and the same county, of
long acquaintance, nothing having ever passed
between the persons of the earl of Bristol and
the lord Conway, but demonstrations, of good-
will, and an interest of blood being between
the lord Conway's children and the carl, ac-
knowledging withal many lovely parts and
powers in hun : and it is not unlikely but the
lord Conway might say, (according to the in-
genuous freedom which he uscth and cherishtth
in himself) that if things should not he recon-
ciled, but break out into opposition bet* ecn
the duke and the earl, he must then declare
his greater love to be to the duke than to him ;
but this the. lord Conway limited to their par-
ticular per-ons, and hopes it cannot, by any
justice, be interpreted to stain him as he is a
public mmister, a magistrate, or a peer of the
realm. AH offices and obligation^ in those re-
spects, he owes to God and the king, but to no
subject; aud doth profess and is confident be
hath paid them lutherto ; aud hopes in God to
continue so v.jth uubhimeable integrity.

" II. To the Second Article he snith, — That
the artifice the earl of Bristol u*eth, in ming-
ling truth with untruth, makes it hard to clear
it without much prolixity ; which the lord Con-
way thinks this Article not worthy of, compar-
ing it with the honour and re\ereurc he owes to
this great and noble council ; yet, by your lord-
ships good favours he gives it this Answer, That
be verily believes he never wrote in those terms
of being a secretary by the duke's creation ;
although lie never was, nor is, unapt to

VOL. II.

acknowledge infinite obligations to the duke,
tor his favours freely conferred upon him ;
which he was ever, as he is yet, ready to testily
by all due attributes and expressions: but tor
the lord Conway to have acknowledged this in
those terms, had been to hare forgotten what be
owed to his gracious master of glorious me-
mory : wiio when he gave him the seal*, in the
presen